Reports in the Court of Exchequer, beginning in the third, and ending in the ninth year of the raign of the late King James by the Honourable Richard Lane ... ; being the first collections in that court hitherto extant ; containing severall cases of informations upon intrusion, touching the King's prerogative, revenue and government, with divers incident resolutions of publique concernment in points of law ; with two exact alphabeticall tables, the one of the names of the cases, the other of the principall matters contained in this book.

The King against the Earl of Not∣tingham and others.

BEtween the King by English Bill, and the Earl of Nottingham and others Defendants, but concerned Sit Robert Dudley in interest, and was as followeth viz. Sir Robert Dudley intending to travel beyond the Seas, did by indenture inrolled the 10th. of June, for a valuable consideration expressed, but none paid, convey the Mannor of Killingworth amongst other lands to the Earl of Nottingham &c. in see, but the Barganees were not privy unto the Deed not till afterwards, and in the Deed there was a proviso, that upon the tender of an Angel of Gold all should be void, and convenants on the part of the Barganees, that they should make all such estates as Sir Robert Dudley appointed, and after Sir Robert Dudley by licence from the King Travelled beyond the Seas to Ve∣nice, and after the Barganees made a lease to Sir Robert Lee, to the intent, that the Lady Dudley should take the profits of part thereof, for ten years, if the estate of the Barganees should continue so long unrevoked, and after the King having notice of divers abuses made by the said Sir Robert Dudley in the parts beyond the Seas, commanded the said Sir Robert Dudley by privy Seal deli∣vered unto him the 10th. of April in the 5th. year upon pain of forfeiture of all his lands and fortunes to return again immediately &c. and after a Commission issued forth to inquire what lands and Tenements &c. Sir Robert Dudley had, or others for him in use, or upon confidence, and the Iury found this special mat∣ter,

but found not any fraud expressy: and thereupon the King exhibited his Bill here, against the Barganees, and also against Sir Robert Lee their Lessee, who truly discovered all this special matter, and that they were not knowing of the Deed until long time after making of it, and that no consideration was given by them in this case, for the lands so bargained: and it was argued by Sir Hen∣ry Mountague Recorder of London for the King, if these lands should be seised or not, he conceived that there are three things considerable in the case.

• First, the contempt of Sir Robert Dudley in his not returning upon the sight of the pri∣vy Seal, and of what quality this offence is.
• Secondly, what interest the King had by this offence in the land of Sir Robert Dudley being the offender.
• Third∣ly, if notwithstanding these offences, these lands ought to be seised for the King; touching the first point he said, that it is requisite to examine, if a subject at the Common Law may go beyond the Seas without Licence, and in what cases the Law allows a man to go out of the Realm without Licence, and as to that he said, that it appears by the reason in the 12th. of Eliz. Dyer, that at the Common Law every man may go out of the Realm;

but the Statute of the 5. Richard 2. re∣straineth all but Merchants, noble men, and Souldiers, and as he conceived this was but an affirmance of the Common Law, notwithstanding the Book before cited: and to prove that, he said that the opinion of Dyer in the first Eliz. fo. 165. seemeth to agree: also it is proved by divers Licences granted before this Sta∣tute; see F. N. B. fo. 85. in the writ de securitate invenienda, quod Se non divertat ad partes exteras sine licentia regis, according to the 12. Eliz. in Dyer: and he further said, that there are two reasons to prove, that no man may go be∣yond the Sea without Licence at the Common Law, for by 2. E. 3. and the 16. E. 3. and Glanvil in his Chap. of Essoynes, by such means the subjects may be deprived of their suits for debt, and also the King may be deprived of the atten∣dance of his subject about the business of state, and it appears by the Register fo. 193. & 194. that religious persons purchased licences to go beyond the Seas, and it appears by Littleton in the Chap. of confirmation, that a dissent takes not away an entry of him who is beyond the Sea, except it be by the Kings command∣ment, see the case intended by Littleton in the Chap. of Continual claim, there it seems to be a doubt to Littleton; then he argued further, if the Common Law alloweth not a subject to go beyond the sea without licence, but reputes it a great contempt, this is a great contempt in him, who will not return by the Kings command, and the Law hath alwayes punished such contempt, as it appears by Dyer fo. 28. & 177. & 19. E. 2. John de Brittons Case: also there is a pre∣sident for seisure of all his lands for such contempt, and he vouched the book what the King had done, where he cited, that the Prior of Oswaldshire forfeited all his lands and possessions for such contempts, and so concluded the first point of the quality of the offence, and spoke nothing of the licence which Sir Robert Dudley had of the King at the time, the which as it seemeth was not expired, nor the po∣wer which the King had to Countermand it within the time, to which the Attor∣ney general in his argument did speak: to the Second point it seemeth, that the contempt giveth such an interest to the King, that he shall retain the land until conformity, for he who dwelleth in contempt, ought not to have any possessions here, and he cited the 22. H. 6. and the 21. H. 7. and divers other books which are cited in Calvins Case Cook lib. 7. also he said, that there is a difference, where the King is offended as King of England, and where as head of the King∣dome, as this case is, which is a greater offence in qualitie; then for any offence for which men should lose their lives, as if they should stand mute upon their ar∣raignment &c. also there is a great difference between this contempt, and by out∣lawry, and therefore in case of outlawry, he needs no office, but the King is only intitled to the profits of his lands, which is but a transitory Chattel, in which case an office is not necessary, but where an interest coms to the King, there ought to be an office, and he vouched Pages Case in Cook lib. 5. and Sir Wil∣liam

Herberts Case, but he did not endeavour to prove what interest came to the King in this case, for when an interest comes to the King, there ought to be on office; as to the second point he said, that trust between parties is fraud, as to the King, and in this case the badges of fraud are found by the office.

• First, his purpose to go beyond the Seas.
• Secondly, his Barganees are not privy to the Deeds.
• Thirdly, no summe was paid by them.
• Fourthly, here is a power of Revocation.
• Fifthly, covenants to execute all grants, as Sir Robert Dud∣ley appointed.
• Sixthly, the subsequent Act, that is, viz. his staying beyond the Seas, and his not returning upon the Kings command, and although in this case there be no fraud in the parties who are Barganees, and so the fraud is only of one partie, yet it appeareth by the 19. of H. 8.12. that if an infant hath right to land, and a stranger disseise the Tenant to the intent to infeoffe the infant with∣out Covin in the infant, yet the infant shall not be remitted, and he vouched De∣lamores case in Plowden to be accordingly: also there are divers cases in our books to prove the inveterate hatred, which our law beareth to all Acts which are frau∣dulent, and therefore in 44. E. 3. & 41. Assise pla. 28. it appears that a recove∣ry upon a good title, although it be in Dower, which is favoured in Law against a Tenant, who comes to the land by Tort and Covin is void, which cases and many other you may see in Farmors case Cook lib. 3. and the 12. Eliz. Dy∣er fo. 294. and as it is said in Twines Case Cook lib. 3. all frauds are covered with trust expressed, or implyed, and here is an express trust, and he vouched also Cook lib. 5. Gooches Case, and also Englefields case, and Pauncefoots case cited in Twines case Cook l. 3. fo. 83. also he said, that this conveyance being void by reason of the fraud, by the Law it is more clear, that it shall be decreed to be void, here the Deed being in court and course of equity, and therefore he said, that it hath been decreed in this Court for equity, that if a man outlawed taketh bonds in the name of another, that they shall be forfeited to the King: also it hath been decreed in Venables Case, that where a widdow upon good devotion bad devised great summes of money, for the relief and sustenance of poor silenced Ministers and Preachers, for not subcribing to the Commons &c. to be ordered and paid to them by the discretion of the Executors, that the money should be dispo∣sed for the maintenance of poor conformable Ministers, by the discretion of the Ex∣ecutors, and not to them who retused to subscribe, for when a thing is disposed, to maintain contempt and disobedience in any, this ought to be ordered and dispo∣sed by the Court to a contrary end and use; and so in the principal case, in so much that the conveyance was made by Sir Robert Dudley, for the maintenance of himself in contempt, and for the maintenance of his wife and other uses, this by the rules of equity shall be decreed to be void, and in regard the King is offended by the contempt, he ought to have means to punish It, and so he prayed that it may be decreed for the King.

Hutton Serjeant the same day to the contrary, and he argued first, that this confidence is as an use at the Common Law, which was not forfeitable: and secondly, admit that this conveyance be fraudulent, yet it is not now to be avoided: and these are the grounds whereupon he would insist in the maintenance of his conveyance against the King; but first, as to that which hath been said, that at the Common Law a man could not go beyond the Sea with∣out the Kings licence, he said, that he thought the contrary; for it appears plain∣ly by the book 12. Eliz. Dyer fo. 296. and F. N. B. cited accordingly, that any man may go beyond the Sea to travail, except there be a proclamation, or a writ of ne exeas Regnum to restrain him, so that he agreed, that every man was pro∣hibitable before his going, or after by recalling, but without a prohibition or re∣calling his departure was no offence: but he agreed, that if a man be prohibited, or recalled, that for this contempt his lands ought to be seised, and that the King hath interest to dispose of them, as it is proved by the president of John de Brita∣nies case, in the 19. E. 2. and vouched in the 2. Ma. Dyer 128. and this is also proved by other presidents, and authorities, as 39. Assise pla. 1. where

it appears, that for a contempt of the Arch-Bishop of Canterbury, for not exe∣cuting of the Kings writ, that the King seised his lands, and held them during the life of the Arch-Bishop, and also Englefields case in Cook lib. 7. proveth that the King hath power to seise and dispose for such a contempt, and therefore he would not argue, what interest the King should have by such seisure, but for the matters which he intended.

• First, he thought clearly, that this confidence be∣twixt the Bargainor, and the Bargainee was as an use at the Common Law, and that cestuy que use, should not forfeit this use at the Common Law, is directly proved by 11. H. 4. fo. 52. where without an express Statute, an use was not forfeited as he said, and he vouched accordingly, 5. E. 4. fo. 7. where it appeareth that cestuy que use, shall not forfeit the land at the Common Law, and the reason is, because that it is subject to the forfeiture of the Donees, and it is inconvenient, that the same land should be subject to several forfeitures at the same time by several men, viz. the Bargainor and the Bargainees, and he said, al∣though that these uses were begotten by fraud, as it appears in our books, see Chudleys case, Cook lib. 1. yet in so much, that without an express Statute they were not forfeitable, by the same reason a trust or confidence is not forfeitable (although they are begotten by fraud) without a special Act of Parliament: also in out case there are not any Badges of fraud, but only as a trust betwixt the Bar∣gainees, and that a bargain and trust may be without fraud, although the Bar∣gainor continue possession against his Bargainee, which is another argument, that there is no fraud in the case, and the estates after made to the Tenants now in possession, viz. Sir Robert Lee &c. for the Bargaines were not made by the appointment of the Bargainor, but of their own head: also he said, that if here be any fraud, it is matter of fact, whereof the Iurors ought to have inquired, and the Iury here have found no fraud, and to prove that the fraud ought to be found by the Iury, he vouched Wardenfords case 2. & 3. of Eliz. Dyer 193. & 267. where it is also said, that although a fraud he found by the Iury, yet if it be found specially not to defraud the King, but the Creditors, then the convey∣ance shall be good against the King, and so he concluded the first point.
• Secondly, admit that it was found, that this conveyance was fraudulent, yet it is not void against the King, for it seemed to him, it shall be avoided by fraud only, by those who have an antient right or antient duty, and if in this case there were any fraud, this was long time before any title or right accrewed to the King, for that was two years after this conveyance, and to prove it, he vouched Upton and Bassets case cited in Twins case, in Cook lib. 3. there it is said expresly, that a convey∣ance by fraud is void only in respect of an antient title: see 22. Assise pla. 72. accordingly;

but the Statute of 27. Eliz. makes such a conveyance void, to those who have a present right, if there were a valuable consideration as is not in our case; and therefore we are out of this Statute: and also he said, that he agreed the case cited of the other part, if a man outlawed purchase goods, or takes an ob∣ligation in trust, the King shall have them, for this is by the Statute of the 3. H. 7. cap 4. but this concerus not land, and therefore we are at the Common Law, and as a Statute was requisite to be made, to make an use forfeitable, which was not forfeitable at the Common Law, it is also to make an obligation in the name of another to be forfeitable, although it was not at the Common Law, so if we will have a confidence or a trust to be forfeited: we ought to have a Sta∣tute made to this purpose, and as to Pauncefoots case he said, that the King had a title by the indictment of recusancy, before the conveyance made by Pauncefoots; but so it is not in our case, whereby appeareth a plain difference betwixt the cases; see the 14. H. 8. fo. 8. the Attorney general to the contrary at another day, and first he spake to the quality of the offence viz. the contempt, and this offence as he said, is aggravated by these circumstances.

• First, the command of the King himself came, and not of any inferiour officer, as Sheriff &c. and it is immediately directed to the partie himself.
• Secondly, the command is,

• that he shall return upon his faith and allegeance, which is the strongest compul∣sion that can be used.
• Thirdly, the thing required by the King, is the princi∣pal dutie of a subject, viz. to be at the command of the King for service, and not as the common summons in Law is to answer at the suit of I. S. and he said, that this contempt is to be accompted in quality of a contempt, from the very time when the privy Seal came to his hands, for the words quod indilate &c. and it hath been in all ages the course, and use to punish contempts of this kinde by sei∣sing their lands, and he vouched in proof thereof, the presidents of John de Brit∣tons case in 19. E. 2. and of Edward de woodstock, in the time of E. 2. and the case in 2. Ma. Dyer fo. 128. & 2. Eliz. Dyer Barners case fo. 176. and 23. E∣liz. Dyer 375. and Englefields case Cook lib. 7. moreover he argued in so much it is clear, that the King shall seise his lands for this contempt, it is to be conside∣red what estate or interest the King shall gain by this seisure, and as to that he thought, that the King hath an estate at the least; for the life of the effendor, and that he conceived is proved by the presidents, for these words are used in the seisure &c. donec aliter duxerimus ordinandum &c. and he said that this is proved by Englefields case, and also by the way and manner of the seisure, and disposing of the land for such contempt: in 23. Eliz. Dyer 375. by the Statute of 13. and 14 Eliz made against fugitives; also he used this reason to prove, that the King had an estate for life, viz. because the offender by this contempt, had im∣pliedly deserted his land, and left it to the Kings dispose, and then it is all one, as if he granted the land to the King to hold, and use as long as he pleaseth, and such an express grant will create an estate for life in the King;

as is proved by 35. H. 6. where it is agreed, that if I give land to A. as long as he will, this is an e∣state for life, and so here by this implied Art &c. also as to that that may be preten∣ded in this case, that the King granted licence in this case to Sir Robert Dud∣ley, to travel for a time certain, which time is not yet expired, and there∣fore the contempt qualified, or satisfied by reason of this licence: to that he said, that notwithstanding that was the case, yet the contempt is all one, as if he had no licence at all, in regard it is countermanded by the privy Seal, which injoyns him to return, and to prove that this licence is alwayes countermandable by the King; he said, that besides the common usage and obedience of countermands of this kinde, he said, that it was to be proved by reason also and authority of our books; for although here be a licence indeed; yet there is great adversitie between a licence indeed which giveth interest, and a licence indeed which giveth only an authoritie, or dispensation, as in our case, for the one is not to be countermanded, but the other is, as appeareth by 5. H. 7. and 1. Ma. Dyer 92 and admit, that after this licence, and before the departure of Sir Robert Dudley, the King had said unto him, you shall not go, this had been a good countermand, as seemed to him, and he vouched 9. E. 4.4. and 8. E. 4. if I licence A. to stay in my house for three dayes, yet I may put him out in the mean time, but otherwise it is, if I licence A. to hold my land for 3. dayes, because there an interest passeth, and the reason wherefore this licence in our case is countermandable, is because all licen∣ces of this kinde have tacite conditions annexed to them, for no Act or licence wil. free a subject from his allegeance, as appeareth by Doctor Stories case in the 13. Eliz. Dyer fo. 300. and no man can put off or be dismissed of duties which belong to a subject, no more then he can put off his subjection, and this is the reason that an honor or dignitie intailed, ought to be forfeited, although it be intailed; for the honor which is given by the King hath a tacit condition in Law annexed unto it, and it ought not to continue in him who committeth Treason, nor in his posteri∣tie, although that the partie had but an estate tail therein; see Nevels case Cook lib. 7. and so had the King his licence, which is but a dispensation for the time, and countermandable by the King, and he said, that the Book in 2. Eliz. Dyer fo. 176. makes it a doubt, but he thought it clear for the reasons aforesaid: and as to the material point, viz. if this land shall be priviledged from seisure by reason

of this bargain or not, and he said, that it shall not be priviledged, for this con∣veyance which is revokable at the will of the Bargainor is meerly fraudulent a∣gainst any interest of forfeiture, for otherwise the Kings subjects are but as ferae naturae, which when they are out of their pale, the King had no means to reduce them, within the Park again; for in this case had no means directly to punish this offence upon the body of the offender, but by the depriving him of the means of his maintenance, and although there be no fraud here in the parties Bargainees, yet the fraud in the Bargainor makes the conveyance void against the King; for as it appeareth by our books, the King cannot be an instrument of fraud, although he may be party thereunto; see 17. and 21. E. 3. so in the case of an infant cited be∣fore by Mountague, all which and many others to this purpose of fraud are cited in Farmors case Cook lib. 3. fo. 48. and whereas it was objected, that here can be no fraud intended in the offender, in regard he had a licence to travel, and it cannot be intended, that he presupposed any countermand of this licence, and to commit a contempt by his refusing to return, and so to save his lands by this con∣veyance, in respect this countermand is a thing whereof he could not have divi∣ned, to that I answer, that the contempt subsequent is a sufficient proof of such precedent conjecture, and that the conveyance was made fraudulently to prevent the prejudice, which might accrew unto him by such contempt, and this opinion will appear by the makers of the Statute of 13. Eliz. cap. 3. and 14. Eliz. cap. 6. made against fugitives, and may well be collected upon the perusal of those Statutes, and that the Iudges here ought to make such construction, upon the subsequent Act; he vouched the case of Doctor Ellis in Plowden, and Saunders case in the matters of the Crown, happening at Salop, by which cases it appea∣reth, that the Iudges proved the first intent by secondary Actions subsequent by way of discourse, and therefore in Saunders case, the partie having an express in∣tent to poyson his wife, delivered unto her a poysoned apple, and the wife not knowing it to be poysoned, gave it to her child, who died thereof: there the in∣dictment against Saunders was that of malice forethought &c. he intended to mur∣der the child, although this was not his first intention, so in the other case there cited; if a man intend only the death of A. and being fighting with him, be a stranger interposeth himself to part the affray and he is slain, this is wilful mur∣der, although here was no primer intent to kill B. but this is made an intention by legal collection; and so in our case, here is intentio Jegalis and not actualis, and yet aswel unavoidable as any other; also although it hath been objected, that by the common Law none shall avoid a conveyance by reason of fraud, except he who hath a former interest, and the Statutes give no authoritie to any, but to pur∣chasors, upon valuable consideration, yet I say, that the Statute of 13. Eliz. is to avoid all fraudulent conveyances, against such as by any means may be hin∣dred thereby, yet the intention was not to defraud the partie, who is thereby de∣frauded; but some other, and therefore although it was not to defraud the King in our case, yet being fraudulent it is void against him by this Statute, for he should be hindred thereby: also the proviso in this Statute saveth such convey∣ances only, which are upon good consideration, and bona fide, and that is such wherein simple and plain dealing are used, but in this conveyance there was not any simple and plain dealing used, for the Bargainees paid no money, nor ought to take no profits of the land, nor dispose of any estate therein; and therefore fraud, for Dolus est Machinatio cum aliud dissimulat, aliud agit: also the preamble of the Statute of the 27. Eliz. willeth that conveyances shall be void which are made to the use of him, who maketh the conveyance, or otherwise to defraud purchasors, although that the body of the Act mentioneth such only, which are to defraud purchasors; and he vouched the Statute of the 28. Eliz. made a∣gainst couveyances by resumption, and he said, that Twines case in Cook lib. 3. proveth our case effectually to be a void conveyance which cannot be answered; but the Lord Treasurer said, that there was fraud in both parties, and he argued

further, and vouched Goodales case Cook lib. 5. to prove that a Deed shall not be deemed to be good, except it be free from all fraud or clandestine agreement, as it was there resolved, that the payment for performance of a condition was not good, as to strangers, by reason of a precedent agreement, and Burrels case Cook lib. 6. where it appeareth, that no fraud shall be accounted bona fide, as to strangers which is accompanied with trust &c. also although here is not any fraud expresly found by the office, yet he thought, that the equity of the case appears plainly: and that it shall be for the King, and he vouched divers decrees in this Court to prove it, as 43. Eliz. Howse was outlawed and took divers bonds of Carne in the names of others his friends, viz. of Marlow, and others in trust; also took Statutes in their names in trust, and it was decreed here, that the King should have all, vy reason of the fraud, although it be not found by any office, and in Hoards case it was decreed here, that whereas the said Hoard betwixt the years of 25. and 32. had sent divers summes of money to Sheldon of Bealie, and had taken divers obligations, and other securities of him in others names before his conviction, yet it was decreed to the King in this Court without any fraud found by office; and in Sir Walter Raughlies case the same year decreed in this Court, that whereas Sir Walter Raughlie being possessed of a tearm of 100. years of _____ _____ he having a determination to purchase the reversion in fee of the same land, conveyed his Tearm to his eldest son to the intent it should not be drowned; and therefore about 40. Eliz. he purchased the fee, and after in the year &c. of our King that now is, he committed Treason, and was attainted, and it was decreed here, that the King should have the land discharged of this lease, viz. in possession, and although no fraud be found in the case, but only it appeareth by circumstances of witnesses here examined, that Sir Walter Raughley took the profits of the laud, and held Courts in his own name until the attainder, yet the said assignment was conceived to be in trust, and therefore decreed to be void against the King as for fraud, although he was convicted of Treason a long time after, and so the Kings title, subsequent to the said assignment; and he vouched Walter de Chirtons case in 24. E. 3. Rot. 4. also as to Mr. Wardenfords case in 2. and 3. Eliz. Dyer 193. and the 9 and 10. of Eliz Dyer 267. but our case is different from them in two material circumstances which alter the law in the cases. First, we are in a Court of equitie by English Bill, where the Iudges are only to adjudge upon the fraud, and there they were in a Court of Law, and the fraud was the matter of fact, which ought to be expressy found by the Iury, as appears by the books. Secondly, in that case the Iury found expressy, that the conveyance was not by fraud to deceive the King of his wardship, but only to de∣ceive the Creditors &c. but in-our case there is no such negative, and therefore it differeth much: see Dyer 267. and 268. as to the finding in the negative: at a∣nother day in the same Term of Easter 7. Jac. the Barons decreed for the King, and the Lord Treasurer agreed, and he then demanded of Tanfield chief Baron, if upon the return of Sir Robert Dudley he ought to have his lands again of right, or if but upon special grace, and the Lord chief Baron answered, that he should have them of right: see Bartues case in Dyer, but the Lord Treasurer said, that he saw no reason to satisfie himself thereof.