The Doctor and Student (1518)

Christopher St. Germain

What the parliament may do touching suits for dilapidations taken in the spiritual court

Stud. I suppose also, that it may be enacted by authority of parliament, that if a spiritual man suffer his houses to decay and die: that his successor shall have remedy in the king’s court, against his executors, and that it may be prohibited, that no suit of dilapidation should be hereafter taken in the spiritual court, for it is brought to have amends for the waste and decay done in houses by his predecessor, which is all temporal, and belongeth to the king’s courts, as. wastes and trespass do. And howbeit, that no action lieth for the successor in such case for the waste at the common law: yet that is not sufficient to prove, that an action may lie therefore at the spiritual laws: for if a person of a. church make a lease for term of years, and the lessee doth waste, in that case the person shall have no remedy at the common law, and yet he shall not therefore have any remedy at the spiritual law. And also in divers statutes it appeareth, that if a man have judgment in the spiritual law to do penance, as. is enjoined him, that the judges spiritual may not turn that penance into money, unless the party will freely ask it; lest they might by that means give judgment of temporal things. And if they may not turn penance into money, but by the free will of the party; then more stronger, they may not hold plea in this matter, where none other thing is in variance but waste of houses, and where are demanded damages, as was in the prohibition of waste at the common law: and therefore some men say, that a praemunire facias, or a prohibition lieth in this case, at this day, if the grounds of the law were thoroughly looked upon; howbeit, because of the custom so long used and suffered to the contrary, peradventure it were not good to alter the law therein without parliament; but they think verily that the parliament may well alter it; and to enforce their reason they say, that since the court christian may not by the law award damages for beating of a clerk, but only put him to penance for laying violent hands upon the clerk, that more stronger they may not in this case award damages for the waste, that is nothing else but a temporal offence.