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.

Pasch. 7. Jac. in the Exche∣quer.

Catesbies Case Pasch. 7. Jac. in the Exchequer.

TAnfield chief Baron said, that in the year 31. Eliz it was adjudged in Goar and Peers Case, if Tenant for life infeoffe A. and his heirs to the use of the feoffee and his heirs during the life of the feoffor, that this is a forfeiture, because these words during the life of the feoffor shall be but to the use limited, and he put the case which Serjeant Nichols put at the Bar of the Lady Catesby, which was, that a man suffered a recovery to the use of William Catesby and Anne his wife, and of the longer liver of them, and of the Executors of William for forty years, if one Elizabeth Catesby should so long live, William Catesby dies, and the reversion came to the King by forfeiture, and he pretended, that Elizabeth Ca∣tesby being dead the estate is also determined, in regard that these words, if Eliza∣beth shall so long live, refer to all the estate; but Curia avisari vult.

It was said by the chief Baron, that if a man plead a deed in writing, and the other partie do not pray Oyer, the same Term he shall not have Oyer in another Term in the Common Pleas, but in the Kings Bench Oyer shall be granted in another Term.

It was found by office that Elizabeth Bowes was convicted of Recusancy in 35. Eliz. and that a lease for years was made unto her in the year 36. Eliz. in trust, and that she had conveyed this lease over according to the trust, and a questi∣on was demanded, if the King shall have this term or not for her Recusancy, and it seemed that he shall, because she is not capable nor lyable of any trust, and there∣fore the conveyance made by the Recusant was, as if it had been without any com∣pulsion by reason of the trust.

If a Coppiholder of the Kings Mannor pretendeth prescription for a Modus decimandi against the Parson, the right of Tithes shall be tried in the Exche∣quer, and a prohibition was granted to the Ecclesiastical Court in this Case.

Owen Ratliff was lessee for years of the King rendring rent, and he assigned his Term to Sir Thomas Chichley in trust, for payment of the debts of the said Owen Ratliff, and after the Debts were paid, Chichley resigned it, but in the interim between the assignment and the resignment divers rents incurred to the King, and the Barons agreed; that these arretages in Law may be levied upon the land of Chichley notwithstanding the trust, but because the Court was in∣formed, that the Executors of Ratliff had assets, and continued farmer of the farm at that time, they compelled him to pay it, and being present in Court, they imprisoned him untill payment made, and allowed him his remedy by English Bill against Chichley, and that by the agreement, Chichley was to have paid the rents to the King.

The Earl of Cumberlands Case.

IT was found by diem clausit extremum after the death of G. Eearl of Cum∣berland, that King E. 2. gave to the Lord Clifford (inter alia) the Mannor of Skipton in Craven to him and to the heirs of his body, and found further the discent in a direct line, until the time of H. 6. and that the first Donee, and all others to whom it descended were seised, prout lex postulat without determi∣ning any estate in certain in the Donee, and they found that H. 6. by sufficient conveyance concessit Revertionem, nec non manerium de Skipton in Craven to Thomas Lord Clifford, to whom the estate given by E. 2. was descended and his heirs, by force whereof the said Thomas was seised prout lex postulat, and found the discent to the Earl of C. now dead, and found that by fine, and recovery he conveyed an estate in this land to the use of his brother, that now is Earl of C. in tail, the remainder over to &c. and died having a daughter now Countess of Dorset, who moved by Dodderidge the Kings Serjeant in the Court of wards, that this office was insufficient, for by the pretence of the said Countess, the first e∣state given to the Cliffords by E. 2. was a general tail, and then the fine levied, and the recovery suffered by the last Earl her father is no Bar, but that it may discend to this Countess as his heir in tail, and therefore Serjeant Dodderidge said to the Lord Treasurer then present in Court, that if this should be allowed, that Iurors may finde generally a grant made, and shew no quallitie of the conveyance nor any place, or time, but if this were a grant of reversion or of a possession he said, that many men by such offices should have their lands given away, whereunto they had no means for uncertainties to take a Traverse, and as to insufficiency of this of∣fice,

he said, that the insufficiency therein consisted first in matter. Secondly, in form; for the insufficiency of the matter is two fold.

• First, because that the office findes only, that King H. 6. by sufficient conveyance not limited any man∣ner of conveyances, nor any qualitie thereof: which ought to be shewed, and it is material, because we may give a different answer thereunto; for against letters Patents we may plead one thing, and against an other conveyance we may plead another thing, and so our answer differeth according to the qualitie of the convey∣ance.
• Secondly, it is insuffient in matter, because it is found that H. 6. gran∣ted the possession, and that he granted the reversion nec non manerium which is repugnant, for if the King grant a reversion, then no possession passeth, and if he pass a possession, then no reversion passeth: and therefore it is repuguant to say, that he granted Reversionem nec non manerium which implieth a possession: also he said, that his exceptions to the office as to the Mannor of it, are two-fold.

• First the office doth finde any time of the grant made by H. 6. and this is material, for the grants upon Record take their force from the time of their date, as appears by Ludfords Case in Plowdens Commentaries, and he said, that at this time the case is material to be exprest, in respect that H. 6. was for part of his reign deposed, and after restored, and it might be in the time, that he was deposed by Edward the fourth; but unto that it was answered by the attorney of the wards, that the office found, that H. 6. granted &c. that it was not in the time when he was deposed:
• the second insufficiency in the Mannor is, because it is not found at what place, H. 6. made the said grant, and that this is material to be found by office, he vouched 36. H. 6.32. and he said, that it is very requisite, that in such offices all circumstances ought to be expressed, in as ample certaintie as in a decla∣ration, so that the partie prejudiced by the office may know where to search for the conveyance, but the Attorney general said, that there needs no such express find∣ing of all circumstances by a Iury, as it ought to be in pleading, for it shall be ta∣ken by intendment in divers cases;

but yet he said, that it appears by 1. Eliz. Dyer 174. it is a good plea to say, that A. granted a reversion &c. to the King, without shewing how; much more in office, which is the Act of the Iurors; and therefore Serjeant Harris cited the Book of 14, & 15. H. 7.22. where an office found an estate tail without mention of the Donor, and yet good; and the Attor∣ney general said also, that it appears by the finding of the Iury, in Fulwoods Case Cook lib. 4. that the Iury need not precisely to finde all circumstances, for if there be convenient certaintie, the residue shall be supplied by intendment, as it is there said, and the Attorney said, that whereas it hath been objected, that the issue is evil, because it is found that H. 6. granted the reversion, and also the Mannor and Castle aforesaid, and doth not limit incertaintie, that the King gran∣ted a reversion, or that he granted a Mannor in possession, to that he said, that it is clear, that the King may after recital of a particular estate grant the reversion, nec non terras sive manerium, and then be the land in lease, or be the lease void in Law, yet the land shall pass; and this is his course alwayes in granting the Kings lands to others, and therefore the Iury did well, to finde the truth, without determining what should pass, for admit, that there were no estate precedent in being, yet by this finding it appears plainly, that the Mannor and Castle should pass by the grant, in the time of H. 6. to which the Lord Cook agreed for Law, and so he said, it was his use when he was Attorney general, to which also the Lord Treasurer, Flemming chief Justice, and Tanfield chief Baron agreed, and the Attorney general said, that his use was, if A. had a lease from the King of B. acre, which by effluction is to determine in Anno. 1612. and the said A. doubting that this lease was not good in Law, prayed to have a new lease; that in this case, he recited the first lease in the new letters Patents; and thereby gran∣ted the land for twentie years from &c. which shall be in Anno 1612. or from the sooner determination of the former lease, and the Iudges allowed it to be good, and Dodderidge Serjeant said, that after the difference taken between the plea∣ding,

and the finding of the Iury, it seemed to him, that there is a great diffe∣rence between them, but after the finding of the Iury upon an office, as our case is, and a pleading, there is no difference, for the office is a thing, to which an answer may be made, but a verdict given upon issue joyned between the parties, hath no other proceeding, but to judgement immediately; and therefore such a verdict shall be divers times supplied by the construction of the Iudges, but a verdict upon an office, ought to be as certain as an indictment, because the partie may Traverse, and to prove, that upon such uncertain offices, there is no reme∣dy by Traverse, he vouched the case of 3. H. 4, 5. upon an insufficient office after the outlawry of A. and no time is found of the outlawry, and he observed out of the said book, that the partie outed by the said insufficient office had no remedy by Traverse, but was compelled to make a motion to the Court; and after this case for difficultie was referred to the two chief Iustices, and the chief Baron to con∣sider upon, who the said Term at Serjeants Inne appointed it to be argued, where Walter of the inner Temple moved, that the office was insufficient, and he cited one Baylies case to be resolved here, where an office found, that A. died seised de quodam tenemento, that office was not good, because of the incertain∣tie, for it may be a rent or a house, but otherwise it would be, if it were upon a special verdict after issue joyned, as he said it was there agreed, also he said, that it was there agreed, if an office findes that A. was seised of B. acre in see, and died, it is not good, because it is not found, that he died seised, yet in pleading, it is good, because, when the fee simple is shewed to be in a man, it shall be intended to continue in him until the contrary appears, also in Pasch. 43. Eliz. Morton and Brigs Case an office found A. to be seised of certain lands in D. holden in capite &c. it is not good without shewing the certaintie &c. so if the office had found, that he was seised of 100. acres in D. and that certain of them were hol∣den &c. this is not good, without shewing which &c. as it was there also agreed, in 26. H. 8. the condition of an Obligation was, that the Obligor should make a sufficient estate of B. acre, in debt upon this obligation, it is no good plea to say, that he had made a sufficient conveyance &c. without shewing in certain what it was: Mich. 32. &c 33. Eliz. between Ireland and Gold, a man pleaded for title that A. was seised, and by deed inrolled gave and granted such land &c. this is no good pleading, because no sufficient certainty therein, also it is not good, be∣cause there is no certain time shewed of the grant made, and although that a grant by record is good, as it is in 37. H. 6. yet in pleading, he ought to shew the time of the making of it, 20. H. 7. also it is specially required to have the time of the making of the grant to be found here, because there were divers Acts of Resump∣tion made to nullifie grants by H. 6. in some of the years of his raign, and it may be that this grant was made, within those times contained in the Acts of resump∣tion; and therefore &c. Hutton Serjeant argued, that the office finding quod concessit generally is good, and sufficient without these words, by sufficient con∣veyance, and the Traverse may be generally, non concessit modo et forma, and by 40. Assise pla. 24. it is sufficient to say, that A. was seised in fee, and commit∣ted a forfeiture 5. Ed. 4.10. accordingly, also he said, that it appears by 14. & 15. H. 7. if an office findes that A. was seised in tail, it is a good office, but in pleading not good without shewing how; also in Knights Case Cook lib. 5.56. it appears that an office is good enough to intitle the King if it have substance, al∣though the manner be not formal 3. H. 6. an office finding that A. died seised, and findeth not of what estate, and yet it is good to intitle the King: Bacon So∣licitor general contra, and he said, that they are in veigled by reason of this office, for the partie grieved knoweth not, where or how to Travers, because it is not found by what conveyance H. 6. granted the reversion, for if it be by letters Pa∣tents, a man cannot plead to them nul tiel Record, also a verdict upon an office is principally to inform the partie who may Traverse, and not like a verdict upon issue joyned, whereunto the partie hath no answer, but is only to inform the

Iudges, who ought to Iudge: Hobert Attorney generall contra, yet he agreed, that if a patent be pleaded, a man cannot say against it nul tiel Record; but he said, that Lucies Case 14. H. 7. is a stronger case then ours, where an office is holden good, finding a man to be seised in tail, and upon that book he relied much, to prove the office to be good. Bacon Solicitor said, here is an incertaintie in the conveyance, and also in the estate, which is not in the 14th. of H. 7. for there is an express finding of an estate, and a dying seised thereof; but here the finding is, that he was seised prout lex postulat: Harris Serjeant, that the office is good, and he vouched also Knights Case Cook lib. 5. vouched by Hutton, and also the case of Alton-woods Cook lib. 1. that an office there was holden good, although more uncertain then this office, and here the office is only, that H. 6. granted, and shewed how; and therefore &c. Walter said, that it appears by the argument of Keeble in the case 14. H. 7.26. where he argued, that where the right of the estate is to be inquired, there it ought to be certain in all circumstance; but other∣wise it is, if the inquiry be only upon the possession, for there if a sufficient pos∣session be found it is good enough. And Brian chief Iustice said, the office was void in that case fo. 27. and the Iudges in this case would be advised until the next Term; and the next Term it was recited again, by Nichols Serjeant for the Earl of Cumberland, and by Bacon Solicitor for the the Countess of Dorset, at which day the Iudges said, that the question in the case is only this, viz. if an office findes only, that A. was seised of a particular estate, and that the King granted the reversion &c. without shewing how, or other particular certainties, and to that, if such an office be good or not they said, that it is not easie to deter∣min, for although it be good in the case of a common person, yet it will be great∣ly mischievous to the King, if by such offices his inheritance should be devested, in respect no Traverse can be to such an office, but yet they would not award the office to be void, but advised the Attorney of the wards to grant a special premu∣nire to the heir general, who was the Countess of Dorset, Salvo jure cujuslibet &c. and so in an Action at the Common Law, the Earl might trie his right and title, and not upon the validitie of an office; and so it was done.

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.

Doillie against Joiliffe.

DOillie Plantiff against Joiliffe in an Action upon the case, for false imprison∣ment of the Plantiffs wife, the case was, that Leonard Lovies was for∣merly Plantiff in an action in the Common Pleas, against Julian Goddard a feme sole, and in this action the Plantiff and Defendant were at issue: and a venire facias was awarded, and before the return thereof; the said Julian took to hus∣band Doillie now Plantiff, and after upon a special verdict found in the suit,

judgement was given in the Common Pleas for the said Julian against th•• said Leonard, upon which judgement Leonard brought error in the Kings Bench, and a scire facias was awarded against Julian by the name of Julian Goddard as a feme sole, and she appeared by Attorney as a feme sole, and this (as the Defendant said in his answer) was by the consent of her husband now Plantiff, and after judgement was given to reverse the judgement in the Common Pleas, and the en∣trie of that judgement (as it was pleaded by the Defendant here) was, quod praedict Leonard Lovies recuperet &c. versus praedict. Julianam &c. and costs and damages were taxed &c. upon which judgement the said Lovies sued a Capias ad satisfaciendum against Julian Goddard, and by vertue of that writ the De∣fendant here the Sheriff or Devon. took the said Julian being the Plantiffs wife, and imprisoned her until the Plantiff paid 10. l. which was the cost taxed by the Kings Bench for her deliverance, upon which imprisonment the husband only hath brought his action against the Defendant being Sheriff: Davenport of Grayes Inne argued for the Defendant; and first he thought, that between the parties to the error, and the first action in the Common Pleas there is an estoppel, and admittance, that the said Julian continued a feme sole, for the process in all the proceedings ought to be as it was in the Original, and he vouched 18. Assise pla. 16. by which book it appears, that if a man bring an assise for lands in the Countie of O. and the Tenants plead a Common recovery of the same land in the Common Pleas, this doth conclude the partie to say, that the lands did lie else where &c. also if an original be depending, and before the first Capias, or pro∣cess awarded the Defendant intermarrieth, and after a capias issueth against her as a feme sole, this is well awarded, lib. 5. E. 4.16. and also 5. E. 3. fo. 9. and 10. also he said, that such a thing as is done between the plea, and not after the judgement is not material to alter the proceedings in that course it was begun, for the same partie against whom judgement is given, shall error have against him for whom the judgement is given, except she had married after the judgement, for then he agreed, that the writ of error shall be brought by the husband and wife, in case judgement had been given against the wife while she was sole, 35. H. 6. fo. 31. and 12. Assise pla. 41. and it also appears by 18. E. 4. fo. 3. if Trespas he brought against a married wife as against a feme sole, and she appears as a feme sole, and judgement is given, and execution accordingly, this is good until it be reversed by error, and the Sheriff in such case never ought to examine if it be e∣vil or nor, no more then if Trespas be brought against A. my servant, by the name of B. and A. is taken in execution, the Master shall not take benefit of this misnaming, admitting that A. should punish the Sheriff for it; also he vouched one Shotbolts case 10. and 11. Eliz. Dyer and 15. Eliz. Dyer 318. in the Earl of Kents case, which prove that the Sheriff is to be excused, for taking me by a false name, and if the Iudges admit this false name, yet this judicial writ ought not to be examined by the Sheriff, and it was adjourned.

Shoftbey against Waller and Bromley.

SHoftbey brought an action upon the case against Waller and Bromley, and de∣clared that the Defendants conspired, that the said Bromley should commence a suit against the Plantiff, and that the Plantiff was then worth 5000. l. and that he was then dwelling in Middlesex, and that the Defendants knowing thereof, maliciously and falsely agreed, that the said Bromley should lay his action in Lon∣don, and prosecute it until the Plantiff were outlawed in the said suit, to the intent that his goods should be forfeited to the King, and after in performance of the a∣greement aforesaid; the Plantiff suggested, that he was dwelling in London, and laid his action here, which was prosecuted until the Plantiff here was outlawed, to his damage &c. Tanfield chief Baron thought, that if the suggestion was by

Bromley, to make the process into a wrong County, it seemed that the Action should lie against him only; but in regard it is shewed in the Declaration, that the said suggestion was made by him in performance of the precedent agreement that the action lieth against both, which the Court granted. Godfrey in this acti∣on moved in arrest of judgement, and that for two causes, the action lieth not up∣on the matter here, it appears by the 4. Eliz. Dyer 214. that a man may say his action wherein an outlawry lies in London, and then by the Statute of 6. H. 8. cap. 4. proclamation shall issue into the Countie where he dwelleth, therefore the suing of him in another Countie is no such act, wherefore an action should be brought, no more then if before the Statute of W. 2. cap. 12. a man had brought an appeal Maliciosè, yet no remedy before the said Statute, as appears in the 13. H. 7. in Kellawaies case, because it was lawful to bring an appeal, and so notwithstanding the said Statute no action did lie against him who brought an ap∣peal if it abated 9. H. 5. cap. 1. also the Statute of the 18. H. 6. provideth remedy for false appeals or judgement in another Countie maliciosè &c. by action of the case whereby it appeareth, that in such case the Common Law allowed no action: also the Statute of the 18. H. 6. provideth another remedy then that Statute; and therefore no action lies against us no more then in the case aforesaid at the Com∣mon Law. Secondly, here is no issue joyned, if the Defendants be guiltie of the execution of this practice, but only if they be guiltie of the agreement, and this is found for the Plantiff; but clearly such agreement without execution giveth no cause of action, and the word Practizatione comprehends only the going about, and not the executing of this conspiracy, and therefore the issue should have been general if the Defendants be guiltie or not, and therefore he prayed judgement might be stayed; and he cited Owen Woods case in Cook. lib. 4. Tanfield chief Baron, it is true, that the issue should be better, if it were general not guiltie of the Trespass aforesaid, but yet it is good enough in this case, for the special words comprehend as much as the words not guiltie of the practice, and agreement afore∣said &c. and the word Practizatione comprehends aswel the subsequent Acts of ex∣ecution, as the precedent combination; and therefore Tantamounts a general issue, and it was good by the Court: and as to the action Altham Baron con∣ceived that it lieth, although it be for a lawful cause, for the Law abhoreth fraud, and conspiracy, as if two conspire to vex me for my land by suit, an action lieth F. N. B. yet it is lawful for every man to sue me without title, and he vouched 16. Assise, and here it is laid, that the Defendants indeavoured to make the Plantiff forfeit his goods, which are worth 5000. l. and this is reasonable that it should lie, and 9. E. 2. Fitz. discents 52. is our case directly upon the matter, and there∣fore it seemeth to me that it lies. Tanfield chief Baron said, that 9. E. 2. crosseth this case in part, and yet he thought that the action lies, to which Snig agreed, and it seemed the cases of appeal put by Godfrey did lie well enough without aid of the Statute of W. 2. if there be such a conspiracy. Tanfield chief Baron ac∣cordingly, if it be legally thought without cause, yet if without conspiracy the action lieth not for it, as it appears in Owen Woods case Cook lib. 4. and in all cases, where strangers have nothing to do with the suit brought for the conspi∣racy, and yet combine with the Plantiff in the suit, an action upon the case lieth for this vexation, and judgement was entred for the Plantiff by the Court.

An inquisition for the King was returned here, and it was found that Fleet-wood the Kings debtor, for his office of receiver for the Court of Wards did pur∣chase a certain Term, and interest of, and in the rectory of Yeading for divers years then to come, and that being so possessed he became indebted to the King, and that this term is now in the hands of the Lady Edmonds, and by colour of this inquisition the land is extended for the Kings debt. Harris Serjeant moved, that this inquisition is insufficient to extend the land, but good to sell a term, and

he vouched Palmers case Cook lib. 4. to which the Court inclined, but it was ad∣journed.

If a Bishop becomes indebted to the King for a subsidie, and dieth, his suc∣cessors shall not be charged upon the lands of the Bishoprick, but the executors of the predecessor, or his heir, and if they have nothing the King shall lose it, as chief Baron Tanfield said, which the Court granted upon the motion of Bridg∣man, for the Bishop of Saint Davids.

Trallops case.

A Scire facias issued against Trallop the father, and Trallop the son to shew cause, wherefore they did not pay to the King 1000. l. for the mean profits of certain lands, holden by them from his Majesty; for which land judgement was given for him in this Court, and the mean rates was found by inquisition, which returned, that the said mean profits came to 1000. l. upon which inquisition this scire facias issued, whereupon the Sheriff returned Trallop the father dead; and Trallop the son now appeared, and pleaded that he took profits, but as a servant to his father, and by his commandment, and rendred an accompt to his father, for the said profits, and also the judgement for the said land was given a∣gainst his father and him, for default of sufficient pleading, and not for the truth of the fact; and he shewed the Statute of the 33 H. 8. cap. 39. which as he pre∣tended aided him for his equitie, whereupon the King demurred. Hitchcock for Trallop, seemed that the Statute did aid him by equity, and he moved two things, the one, that if here be such a debt, that the Statutes intends to aid it; the other, if the Defendant hath shewed sufficient matter of equitie within the intent of the Act, and he thought, that it is such a debt as the Statute will aid, for although that here be au uncertainty of the time of the judgement given for the King, that being reduced to a certainty by the inquisition after, it shall be within the intent of the Statute, for id certum est quod certum reddi potest, and the words of the Statute are, if any judgement be given for any debt or duty &c. and here although that there was no certainty, unto how much these mean rates extended, at the time of the judgement given, yet it is clear, that it was a duty at the time of the judge∣ment, and then it is within the Statute: also he said, that the words in the pro∣viso of that Statute explain that the intent of the makers of the Act was so; for the words are for any thing for which the partie is chargable, and the mean rates are a thing, for which he is chargable: see Cook lib. 7. fo. 20. and the Lord Andersons case there fo. 22. as to the point of equitie there seem to be two causes. First, he shewed that he was but a servant to his father, and had given an accompt to him. Secondly, the judgement was given against him upon a point of mis∣pleading. Tanfield chief Baron said, that the matter in equitie ought to be suffi∣ciently proved, and here is nothing but the allegation of the partie, and the de∣murrer of Mr. Attorney for the King, and if this be in Law an admittance of the allegation; and so a sufficient proof within the Statute, it is to be advised upon, and for that point the case is but this, a scire facias issueth out of this Court, to have Execution of a recognizance which within this Act, ought by pretence and allegation of the Defendant to be discharged for matter in equitie, and the Defen∣dant pleads his matter of equitie, and the King supposing this not to be equity with∣in this Statute, demurreth in Law, whether that demurrer be a sufficient proofe of the allegation within the Statute or not, and it was adjourned.