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.

Trin. 7. Jac. in the Exche∣quer.

Doillie and Joiliffs case again Trin. 7. Jac. in the Exchequer.

CRessey for the Plantiff said, that the Plea in Bar is not good, because the Defendant justified by force of a Capias ad satisfaciendum, and pleads no return thereof, and moved that it is not justifiable without returning of the writ, but the Court seemed the plea to be good, notwithstanding that, but if it were a mean process, then it ought to be pleaded to be returned: see Cook lib. 5. Hoes case fol. 19. according to this diversitie, Tanfield chief Baron thought that the Plantiff shall recover; for first the writ of error here is not a writ, but a commissi∣on, and therefore false lattin shall not abate it, as it hath been adjudged in the Ex∣chequer chamber, and in this case the scire facias ad audiendum errores, and all the writ, and this scire facias in our case, ought to have been made against the said Julian, as against a married woman, and the writ of execution, which is the warrant to the Sheriff is not in such words as the judgement in the Kings Bench is upon which it is founded, viz. that he should take the aforesaid Julian &c. but that he take the said Julian Goddard, then the Sheriff shall not say in his defence, that all the proceeding in the writ of error was against the person, and aided himself by entrie in the roll of the Court, viz. quod praedict. Julianum capi∣at &c. but he ought to rely only upon the writ, and if in this case he would save himself, then he should have inquired upon the delivery of the writ unto him by Lo∣vies who was that Julian Goddard, and if thereupon Lovies had informed him, that it was Julian Doillie, then the Sheriff should have an action upon the case against Lovies upon this false information, viz. if A. prosecute a replevin to reple∣vy his Cattle, and thereupon he cause the Sheriff to deliver unto him the Cattle of B. for this here B. hath his remedy against the Sheriff, and the Sheriff against A. for this false information: also he said, that if a fieri facias cometh to make execution of the goods of B. if the Sheriff take others goods in execution, a Trespass lieth, and therefore to secure himself, he ought to impannel an inquest, to finde if they be the goods of B. or not, and then as he conceived it is good; but the opinion of the Iudges in the Kings Bench, in Mich. 5. Jac. in Trespass be∣tween Rookwood and Beal was to the contrary; for there a Trespass was brought by Rookwood, and the Defendant justified the taking and so forth, as Sheriff by vertue of a fieri facias, as of the goods of Edward Rookwood father of the Plantiff, and upon the execution of this writ the Defendant impannelled a Iury, who found the goods to be the goods of the said Edward Rookwook, for which &c. the Plantiff in the replication Traversed, that they were his goods abs∣que hoc that the Iury found, that they were the goods of Edward Rookwood &c. whereby it seemeth that the finding of the Iury in this case is not material, and so the Court then conceived, therefore quaere the opinion of Tanfield chief Baron in that point; and see the 17. E. 2. pl. 373. and 31. E. 3. Assise pla. 378. and 7. H. 4. fo. 27. Trespass pla. 279. what acts a Sheriff may justifie by reason of a commandment and authoritie from the Court, which commanded him. Snig Baron seemed, that the action did lie, for the writ of capias ad satisfaciendum ma∣keth no mention, that Julian Doillie is the same person against whom judgement was given in the Kings Bench, by the name of Julian Goddard, and although that the entrie in the Roll is against the said Julian &c. yet the writ is directed, that he should take Julian Goddard, and then the Sheriff had not done according to the writ in the taking of Julian Doillie, and he said, that if A. binde himself by the name of I. and judgement is given against him, by the name of I. without ap∣pearing in person, and execution is granted against him by the name of I. in this

case an action lies against the Sheriff, if he take the said A. in execution, for it ap∣pears not to him that it is the same person; but for the other cause, it seemeth that the Plantiff shall not have judgement, for the Sheriff is no such person, who ought to be priviledged here, and therefore the Plantiff should have his remedy else where, and he said, that such a case hath been reversed in the Exehequer Chamber for error; for the under-Sheriff is but an Attorney for a partie privi∣ledged, that is for the Sheriff, but all the Clarks of the Court, and the other Barons were against him in that, and also all the presidents. Altham Baron had never heard it argued before, and therefore he respited his opinion till another day, at which day he said, that the arrest is not justifiable, and so for the matter an ac∣tion well lieth, for by him the arrest ought to be in this case with a special recital, that whereas judgement was given and so forth; as in the 1. and 2. H. 6. if an Abbot hath judgement to recover, and after he is deposed, a scire facias lieth not against him as Abbot to reverse this judgement: and see 10. E. 4. a capias against A. the son of R. &c. see the 19. of H. 6. fo. 12. Summons against Iohn S. &c. see 18. H. 8. fo. 1. a replevin was brought in the Countie Palatine against A. widdow, and after she married D. and the plaint was removed into the Com∣mon Pleas mentioning her marriage &c. and so here the scire facias ought to men∣tion all the special matter, and thereupon the writ of execution upon the reversal of the judgement, ought to be against Iulian Doillie, and not being so, the She∣riff is punishable &c. but it seemed to him, that in this action the wife ought to have joyned with her husband for the false imprisonment, or at the least, if the husband had brought the action alone, there ought to have been a special mention of the loss, which the husband particularly had sustained, as per quod consortium uxo∣ris suae amisit, or otherwise clearly it lieth not for the husband alone, and he re∣sembled this case to the cases in the 9th. of E. 4. fo. 51.22. Assise pla. 87.46. E. 3. fo. 3. where husband and wife ought to joyn in an action, or at the least the declaration ought to be special as aforesaid, and so are the books of the 20. H. 7. and Kellaway to be intended; and for this cause he thought the Plantiff shall not have jugement here. Tanfield chief Baron as I conceived said unto him, that the writ ought to have been with a special averment, but a surmise ought to have been made against Iulian Doillie as she now is, for as the writ is, the She∣riff may safely return, she is not to be found, and thereupon &c. quaere, if he in∣tended the writ of scire facias ad audiendum errores, or the writ of execution a∣warded upon the judgement in the Kings Bench, for he did not mention any par∣ticularity of the writ, but it seemeth, that he intended the writ of execution, and then the surmise whereof Tanfield spoke, ought to be made upon the roll of the judgement, given upon the writ of error, and Tanfield chief Baron said, as to the joyning in action, that clearly for a battery made upon the wife, the husband and wife ought to joyn in the action, as the books are cited before by Baron Al∣tham; and so they ought to joyn in every action, to which the wife is intitled be∣fore marriage; but otherwise it is here, as he thought: and as to that which hath been said, that the declaration ought to have been special, viz. per quod consor∣tium amisit uxoris suae, it seems that shall be necessarily intended, without shew∣ing of it in the declaration; but in the case put by Altham, if a man bring an ac∣tion of false imprisonment of his servant, he need not shew whereby he lost his ser∣vice &c. because peradventure he had no imployment for him, this is good Law by him, but otherwise it is in the case of a wife; but yet he would be advised there∣of, as of a thing not mentioned before. Altham Baron, it may be intended, that the husband was also imprisoned with his wife, and so did not lose her com∣pany except it be shewed to the contrary, aswel as it may be intended the Master had no imployment for his servant, and after at the next Term Tanfield and Al∣tham Barons agreed. that the Declaration ought to be special as Altham Baron conceived, or otherwise the wife ought to have joyned in the action, which had been better, for they said, that in all cases where the action is brought for such a

matter for which the wife by possibility might have an action after the death of her husband, there they ought to joyn, and for this false imprisonment the wife may have an action after the death of her husband, and therefore they ought to joyn here. Snig and Bromley Barons, seemed prima facie, that the action lies well enough, when they joyn or when the husband alone bringeth it: and they vouched —and Doillies Councel said, that they have heard it to be adjudged in the Kings Benth 28. Eliz. in one Cholmlies case, and 35. Eliz. in the Com∣mon Pleas, that an action lieth for the husband alone, for a battery made to his wife, and so they conceived it good; if they joyn or sever in the action, and there∣fore it was appointed, that the next Term the presidents should be shewed, and the case to be argued as to this point. Note, that Doillie perceiving the Law against him for this last point or matter, because his wife did not joyn, commen∣ced his action of new in this Court, and this was in Trespas for the beating and imprisoning his wife, and in this case the husband and wife joyned, and declared to the damage of the husband and wife, and the like Plea was pleaded in Bar as was in the other action, and the record thereof was read in Court Termino Pasch. 9. Iac. and then adjourned, and after, it was adjudged for the Plantiff.

Wikes by English Bill in the Exche∣quer Chamber Trin. 7. Jac.

IN the Exchequer Chamber by English Bill this case was depending, and ar∣gued before all the Barons at Serjeants Inne in Fleetstreet, viz. the King ex∣hibited an Information against Wikes for entering into divers parcels of land, and Wikes prétending that he had good equitie prayed his relief by English Bill, in the Exchequer Chamber, and the case upon the said Bill was this: Graunt made a lease for years to one Somerfield and Iohn Wintor in Trust, and for the benefit of the wife and Children of the lessor rendring rent, and after Wintor one of the Lessees, and also Graunt who was the Lessor, were attainted of the Gunpowder Treason, and Wikes married the wife of the Lessor, and entred, and upon this information he prayed relief in behalf of his wife and Children by this English Bill: and first it was agreed by all the Barons, that the King by the course of the Common Law had the moitie of the land, and no more by the attain∣der of Wintor, and that Somerfield the other Lessee, shall be Tenant in com∣mon with the King, but what remedy he should have if the King took all the pro∣fits they agreed not. Secondly, they agreed by the admittance of Wikes his Councel, that the King as to the moity which came to him, shall not be ordered in equity to perform the trust reposed in Wintor, for the wife of the Lessor, for the King cannot be seised to another mans use, no more can his estate be subject to any trust at this day, as the Attorney general had said clearly, which the Court granted: but Brock of Councel with Wikes seemed not to be satisfied, but that the King ought to execute such trust by equity; but Tanfield chief Baron said, that before me at another day, you were content to be concluded, as to this point: that there is no equity against the King. Thirdly, it was debated, if in this case the King should have the other moity, which was in Somerfield by equity, for clearly, if the lease had been made in trust, for the benefit of the Lessor himself, the King should have it by his attainder, and then what difference, it being made for the benefit of the wife of the person attainted, for her husband might have dis∣posed of it, being a trust only of a Chattel as he might have done of a Chattel, whereof the wife was possessed, and he might have wholly released this trust, and by consiquence he might forfeit it by his attainder; whereunto Snig and Altham Barons agreed, and by Bromley his release shall binde but during his life: the Attorney general said, that he might release all. Brock it should be mischievous

that his release of this trust, should bar the wife of her trust after her husbands death; for admit that a man make a lease to A. to the use of his wife for 100. years, if she shall so long live, and this for a joynture for his wife, can her hus∣band prejudice her of this joynture by release of the trust, as if he should say no, and then à fortiori in the case here, for the trust is for the wife and children, and the trust for the children cannot be released by the father, and consequently not forfeited by him: by the Court there is no such Bill depending before us, which demands any thing for the King, and the Bill which is here exhibited by Wikes prayes nothing but one moity of the term, viz. that which in Law belongs to Somerfield, which moity by the Common Law we cannot take from him, and therefore we will leave you to sue in the office of Pleas, according to the course of the Common Law in the name of Somerfield; and therefore they gave no re∣solution, if by equity the husband shall forfeit a trust, which he had for years in the right of his wife.

Sir Thomas Overburyes case was opened to be this, viz. Robert Wintor was seised in see of six Bullaries at Wich, and he covenanted to levy a fine of all his Bullaries, and that for 4. of the said Bullaries, this should be to the use of John Wintor in tail, and for the other to the use of himself in fee with power of revocation, and after the said Wintor levied a fine, sur connizance de droit come, ceo, only of foure Bullaries, if this fine and the use of the estate passed thereby shall be directed by the covenant, it was the question, and it was moved for a doubt, what Bullarie that shall be intended; whereof the fine is not levied by reason of the incertaintie; quaere, and it was adjourned.

Nota, that an estreate of divers fines imposed upon several indictments at the Quarter Sessions, for several Riots was sent into this Court, and the estreat here being mentioned not, for what offences the fines were imposed, and the re∣cords of the indictments were in the Crown office by a Certiorari; and the chief Baron Tanfield said, that the estreat was insufficient, and we ought not to send out Proces upon them, because they do not mention the quality of the offence, for which the fines were imposed, and therefore it may be discharged by Plea, yet if the estreat be not warranted by the indictment, so that the indictment is discharg∣ed, for insufficiency in the Kings Bench the Record thereof may be certified into the Chancery, and by mittimus transferred hither, and we may discharge the e∣streat: and Altham Baron agreed, that the partie grieved by such fine, upon an insufficient indictment may plead all this matter, and spare to remove the Record, and if the Kings Attorney will confess the plea to be true, it is as good as if the Record had been removed, which was not denied.

An Amercement for a by Law.

IT was moved for the King upon a lease holden for him, that I.S. was amerced 10. l. because he received a poor man to be his Tenant, who was chargable to the parish contrary to a pain made by the Township, and thereupon Proces issued out of this Court, and the Baily distrained, and I. S. brought Trespas, and it was said by the Barons, and ordered, that if I. S. will bring an action for the di∣straining, for this amercement be it lawfully imposed, or not, yet I. S. shall be re∣strained to sue in any other Court, but in this, and here he shall sue in the office of Pleas, if he will, for the Bailiff levied it as an officer of this Court, and for the matter Snig said, that if I. S. received a poor man into his house, against a by

Law made in the Township, there is good cause of amercement; but by Tanfield it is nothing to us, that they have a custome to make by-Lawes herein against a by Law made by us; also a leet of it self, hath no authority to make by Lawes, or such an order, but by custome it is good. Snig and Altham Barons, it is good policy to make an order with a pain in a Leet, that no person shall receive any such Tenant as shall be chargable to the parish; but clearly the Steward cannot amerce one, for such a cause without an order with a pain made before.

Sir John Littletons case.

SIr Iohn Littletons case was, that all the lands of a Monastery were granted unto one Dudley reserving 28. l. rent yearly for a Tenth of all the laid land according to the Statute, and after Dudley granted the greater part of this land to Littleton, and that he had used upon the agreement made between Dudley and him, to pay 20. l. yearly for the Tenth of his part, and Dudley had used to pay 8. l. yearly for that which he retained, and after Dudley was attainted, whereup∣on his part of the said land came to the King, and now the Auditor would impose the charge for all the Tenth, upon Littleton, but by the Court, although the Tenth was Originally chargable, and leviable upon all and every part of the land, yet it being apparant to them, that part thereof came to the Kings hands, it was ordered, that the land of Sir Iohn Littleton should be discharged before the Au∣ditor prorata, and so it was, and Littleton to pay only 20. l. yearly.

Sweet and Beal.

NOta, that in Michaelmas Term 6. Iac. upon a special verdict, this case was depending in the Exchequer, viz. Anthony Brown devised a term to his wife, until the issue of the body of the Devisor accomplish the age of 18. years bringing up the said child. Provided, that if the devisor die without issue, that then the land shall go to the said wife for term of her life, paying to the sister of the Devisor 6. l. 13. s. 4. d. yearly, which he willed to be paid, at two feasts half yearly, and that if it be arrear, then it shall be lawful for the sister to distrain, and to detain the distress until it be paid, and the Iury found, that the devisor had issue at the time of his death, but that the said issue died before he accomplished the age of 18. years, and they found also, that the rent of 6. l. 13. s. 4. d. payable to the sister, was not paid at one day in which it was payable, and that no demand was made for it, and that Moil Beal who was the right heir, entred for the condition broken, and made a lease to the Plantiff, who being outed by the wife, brought an Ejectione firme: and Chibborn of Lincolns Inne, argued that the entrie of the heir is lawful; first he said, when he devised to his wife, until his heir come to the age of 18. years, bringing up the said heir, if in this case the heir die within the said age, the state of the wife is determined, by reason that the edu∣cation was the cause, the land should continue to the wife, and the cause being de∣termined by the death of the heir, before the said age, therefore the estate is also determined, and upon that he bouched a case in Mich. 3. Iac. one Collins devised, that one Carpenter should have the over-sight, and managing of his land, until his son should attain the age of 5. years, and the son died before he attained the said age, and it was agreed, admitting, that Carpenter had by that devise an interest, that it is now determined by the death of the heir: to the second matter, viz. when it is limited: that if the devisor die without issue, that then the wife shall have it, by that it seems to me, that the wife shall not have an estate for life, by these words, as our case, for at the time of the death of the devisor he had issue, so that it cannot be said, that he died without issue, although now we may say, that he is dead

without issue: but in regard, that the words of the will are not performed, accor∣ding to the proper intendment of them, the Iudges ought not to make another construction, then according to the litteral sence, the litteral construction being properly the words to bear such a meaning, and this, as he said, may be proved by Wildes case in Cook lib. 6. but more strong is our case, because in a case which carrieth the land from the heir, there ought to be a strong and strickt, and not a fa∣vourable construction made to the prejudice of the heir, and therefore he vouched a case between Scockwood and Sear, where a man devised part of his land to his wife for life, and another part of his land, until Michaelmas next ensuing his death, and further by the said will, he devised to his younger son all his lands not devised to his wife, and adjudged, that by the said words the younger son shall have only that parcel which was devised to the wife for life, and not that which was devised unto her till Michaelmas: and yet by Popham it appeareth that his in∣tent was otherwise, viz. that all that should go to his younger son; so there ought not to be a strained construction made against the heir, and so in our case the words being, that if he die without issue &c. that then it shall go to his wife, herein as much as he had issue at the time of his death, it cannot be said that he died without issue, but that he is dead without issue, and this appeareth by the pleading in the Lord Bartleys case in Plowden, and he vouched also a case in the Kings Bench 4. Jac. between Miller and Robinson, where a man devised to Thomas his son, and if he die without issue having no son, there it was holden, that if the devisee had issue a son, yet if he had none at the time of his death, the devisee in the remainder shall have it, yet he was once a person having a son, and so in our case, there was a person who did not die without issue, and he vouched also the case of Bold and Mollineux in 28. H. 8. Dyer fo. 15.3. when a man deviseth to his wife for life, paying a yearly rent to his sister, and that if the rent be not paid, that the sister may distrain, it seems to me, that this is a conditional estate in the wife, notwithstan∣ding the limitation of the distress, and he vouched 18. Eliz. in Dyer 348. which as he said proved the case expresly, for there in such a case it is adjudged, that the devisee of the rent may after demand thereof distrain, and yet the heir may enter for the not payment of the rent, although it were never demanded, so that the sub∣sequent words of distraining do not qualifie the force of the condition, although there be there an express condition, and in our case but a condition implyed, and he said, that it seemed reasonable, that such a construction for the distress and con∣dition also shall stand, as appeareth by divers cases, that upon such words, the Law will allow a double remedy, and therefore he vouched Gravenors case in the Common Pleas, Hill. 36. Eliz. Rot. 1322. where a lease was made by Mag∣dalen Colledge to husband and wife, so that if the husband alien that the lease shall be void, and provided that they do not make any under-tenants, and to this purpose he vouched the case of the Earl of Pembrook, cited in the Lord Crom∣wels case, Cook lib. 2. where the words amounted to a covenant and a couditi∣on, and if this word paying should not be construed to be a condition, then it were altogether void and idle, and such a construction ought not to be made in a will, and he conceived, that this rent ought to be paid by the wife, without any demand upon the pain of the condition, and therefore he vouched 22. H. 6. fo. 57.14. E. 4 21. E. 4. by Hussey and 18. Eliz. Dyer 348. vouched before, and so it was resolved as he said, in the Court of Wards in Somings case, where a man made a devise paying a rent to a stranger, this ought to be paid without demand, and he said, that the Common case is proved, when a feofment is made upon condition that the feoffee shall do an act to a stranger, this ought to be done in convenient time without request by the stranger; and so here it seemeth, although a demand ought to be made by the sister, yet the wife ought to give notice to the sister of the Legacy, so that she may make a demand; and therefore he vouched Warder and Downings case, where a man devised, that his eldest son upon entry should pay to the younger son such a summe of money, here the eldes brother ought to give

notice at what time he will enter, to the intent that the younger brother may be provided to make a demand. Edwards of the Inner Temple contrary. First, it seemeth, that by this limitation the wife ought to retain the land until the issue of the devisor should have come to the age of 18. years, for this a time certain, and as it is construed upon such words in Borastons case, Cook lib. 3. that the Executors there have an interest certain, so it should be construed here, to refer to a certainty which is until the time by computation, that the issue should have attained to 18. years, and the rather in this case, in respect the devisor had other∣wise disposed of the land until the son should have accomplished the said age. Se∣condly, it seemeth, that the wife hath an estate for life, not conditional, in so much as the words are not joyned in the case, the 18. Eliz. Dyer hath been vouched: but that was upon an express condition, but here it is by implication, and then the clause of distress taketh away the force of the implication, which otherwise might be thereupon inferred; and therefore in 5. Eliz. Dyer it appeareth, that the word Proviso annexed to other words makes it no condition in judgement of Law, and so in 14. Eliz. Dyer 311. and he vouched also 18. Eliz. Dyer Greens case, that if a man deviseth lands to his friends, paying to his wife with a clause of distress, this is no condition as it is adjudged. Thirdly, it seemeth, that this summe to be paid to the sister is a rent, and therefore ought to be demanded, or otherwise in judgement of Law, the condition shall not be broken, and the 21. E. 4. the case of an obligation to perform covenants &c. and a case between Went∣worth and Wentworth 37. Eliz. that a demand ought to be made for a rent, which is granted in liew of Dower: for the wife brought a writ of Dower, for the land of her husband, the Tenant pleaded, that she accepted a rent out of the land in liew of her Dower, and the wife replied, that the said rent was granted upon condition, that if it were not paid at certain dayes, that it should be void, and that she should have Dower of the land, and she said, that the rent was not paid at the dayes &c. but shewed not in her pleading, any demand to be made, and therefore it was holden evil pleading, for such a rent ought to be demanded, or otherwise the condition is not broken, and so here. Nota, that this case was appointed to be argued again, but after (as I heard) the Barons amongst themselves resolved to give judgement for the Defendant upon one point only, which was, that the estate of the wife of the devisor is not determined until the issue should have come to the age of 18. years, and so none of the other points came now in question, and judgement was given as above-said.

Nota, that in Mich. 6. Jac. upon a motion made by Mr. Nicholas Row of the Inner Temple, it appeared that an inquisition was returned in this Court, by force of a commission, whereby it was found, that one A. was seised of the Mannor of D. and so being seised of the said A. was attainted of Treason in the Kings Bench, and of this should be a double matter of Record to intitle the King, so that the owner of the land shall be forced to his Petition, it was the question, and by the Court, in regard, that the record of the attainder is not in this Court, here is not in judgement of Law a double matter of Record, but if the attainder he removed into this Court, then that and the inquisition would make a double matter of Record, and the Attorney general moved, that when an office findes the attainder, that the party ought to plead no such record.

Worselin Mannings case.

AN Information of intrusion was brought against Worselin Manning and others, and upon the opening of the evidence at the Bar, it appeared that Worsely Manning was an alien born, and that he was made a denizen by the

King, and the Charter of Denization had this Proviso usual in such Charters of Denization, that the Denizen should do legal Homage, and that he should be o∣bedient, and observe the Lawes of this Realm, and after by vertue of a Com∣mission under the great Seal an office found, that the said Worselin after the De∣nization purchased the land in question, and it was found also by the same office, that the said Worselin never did legal Homage, and that he was not obedient to all the Lawes of this Realm, and there was an offer of demurrer upon the evi∣dence, if the Prviso makes the Patent of Denization conditional, and so for the not performance thereof, the Charter of Denization shall be void: and Harris thought clearly, that this proviso for the performance and observation of the Lawes doth not make the Patent conditional, but the intent only was, that if he do not observe them, then he shall forfeit the penalties therein appointed, to which the Court inclined, and after resolved accordingly.

At another day it was moved in Mr. Rowes case, that the possession shall be awarded to the King, and in this case, Tanfield gave a Rule, that Mr. Row ought to plead to the inquisition, but no possession should be taken from him, for although that the attainder make a double Record, yet if the indictment of Trea∣son be taken before Iustices of the peace more then a year after the Treason com∣mitted, as in this case it was, and the partie is outlawed upon this indictment, and the inquisition findes this outlawry generally, yet this is no double matter of Record, for the outlawry is meerly void upon the said indictment, because the indictment it self is void, and to prove that when an indictment is void, that is void as to all purposes; be vouched Vauxes case Cook lib. 4. fo 44. and 11. R. 2. and after in this case the Barons awarded proces to plead, but not to dispossess the partie.

Vaux against Austin and others.

AN Information by Vaux against Austin and others, that they did ingross a 1000. quarters of Corn, upon not guiltie, the Iury found one of the De∣fendants guiltie for 700. and not guiltie for the residue, and found the others not guiltie for all. Prideaux moved that judgement may be given to acquit the De∣fendants in this case, and he vouched the 9th. of E. 3. fo. 1. and 14. E. 4. fo. 2. where an Information was brought for forgery, and proclaiming false deeds, and he was found not guiltie of the proclaiming, and 3. Eliz. Dyer 189. in the Lord Brayes case put by the way, and therefore he said, that if there be an information upon the Statute of Vsury against two, and the Iury found the contract to be but with one of them, both shall be acquitted, and also he vouched Treports case in lib. 6. where a man declared of a lease made by two, where in Law it was only the lease of one, and the confirmation of the other, and therefore evil, 8. R. 2. tit. brief; and if judgement in this case should be given against one being in a joynt information, he could not plead it in Bar of another information for the same thing, and then he should be twice punished for one fault. Hitchcock to the contrary, the Defendants plead, that they nor any of them are guiltie, and issue was joyned thereupon, and by him this case is not to be resembled, to the cases which have been put of joynt contracts, for here the parties commit several wrongs, and he said, if in a decies Tantum, against divers, if one be acquitted the other shall be condemned, and so in an action of Trespas, 37. H. 6. fo. 37. touching maintenance, and if in Trespas against two, one is found guiltie for one part, and the other found guilty for the other part, and 40. E. 3. fo. 35. and 7. H. 6 32. in trespas the Defendant pleads that John S. infeoffed him and R. S. and the Plantiff saith, that he did not infeoffe them, and the Iury found, that be infeoffed the Defendant, only in this case judgement ought to be given if either

of them be guiltie, and therefore there is a difference between that and Wain∣wrights case, for the information was, for the joynt buying of butter and Cheese, but here the information is for ingrossing by way of buying, and so he prayed, that judgement may be given for the King. Tanfield chief Baron, if upon the Sta∣tute of Champertie, a man declares upon a joynt demise by two, and it is found, that one only made the demise, it was adjudged good, and by him this proves the case in question, and the Barons agreed it to be clear, that if a contract be alledg∣ed to be made with one of them, no judgement for usury ought to be given▪ but in the principal case all but Tanfield agreed, that several judgements may be given, for it is like unto a Trespass, and accordingly judgement was given in the prin∣cipal case, against him who was found guiltie.

Nota, by Tanfield chief Baron, and all the Court, that where the Sta∣tute of the 23. Eliz. appointeth, that if any will inform against A. Recusant, and the Recusant be thereupon convicted, that the informer shall have one moitie, and the King shall have another, yet if a recusant be convicted according to the form of the Statute of 28. Eliz. by indictment, an informer can never have any advan∣tage upon an information exhibited after, for the Statute of the 28. Eliz. altereth the course of Law, which was upon 23. Eliz. and no informer can have any advan∣tage upon a conviction of Recusancy by indictment, after the Statute of the 28. Eliz. according to this opinion, there was a judgement now lately in the Common Pleas, as the chief Baron Tanfield said, but if a Recusant be not convicted of Recusancy, an informer may have advantage against him, according to the Sta∣tute of the 23. Eliz. notwithstanding any thing in the Statute of the 28. Eliz.

Jacksons Case.

UPon a motion made by Sir John Jackson in a suit by English Bill, be∣tween Jackson and another; Tanfield said, that it had been decreed in the Chancery, betwixt one Gore and Wiglesworth, that if A. agree with me to lease black-Acre for certain years to me, and after before he makes my lease ac∣cording to his promise, he infeoffes B. of that Acre for a valuable consideration, and B. had notice of this promise, before the feofment made unto him, now B. should be compelled in the Chancey to make this lease to me, according to the pro∣mise, and by reason of his notice, and so the Court agreed upon a motion made in the like case, by the said Jackson, for as before the Statute of 27. H. 8. a feo∣ffee upon valuable consideration, should be compellable in the Chancery to Exe∣cute an use, whereof he had notice, so here.

Sir Edward Dimocks Case argued before.

BRomley the puisne Baron, thought judgement should be given for Sir Ed∣ward Dimock against the King, for the matter in Law he argued but three points.

• First, that the lease made to Queen Elizabeth in the year 26. is not good clearly without a matter of Record, for although that he agreed, that per∣sonal Chattels may be conveyed to the Queen without matter of Record, yet Chat∣tels real can not, for they participate in divers qualities with inheritances and free∣holds; and therefore if a man possest of a Term for years demiseth it to A. for life, the remainder over to B. that this is a good remainder, adjudged now lately in the Common Pleas, but otherwise it is of Chattels personal, as it appears by

• 37. H. 6. the case of the devise of a Grail.
• Secondly, the acknowledgement of the lease before Commissioners, and the prayer of the Bishop to have it inrolled, makes it not a record before inrolment, for it appears by the 21. H. 7. that if the Sheriff by vertue of a writ doth any thing, yet it is no matter of Record, until it be returned, and so is the 9th. of Ed. 4. fo. 96. that if the Phillizer of a County enter Process of outlawry in the room of a Phillizer of another County, this is not a Record in judgement of Law, although that it be a thing recorded; and so he conceived, that it was no sufficient Record in regard the Commissioners have not certified this recognizance, and the prayer of the Bishop: Lessor in the life of the Lessee, and Lessor whereby as he said, he admitted, that if this were certified by the Commissioners in the life of the Lessor and Lessee, that then without in∣rolment this had been a sufficient record to intitle the Queen, who was Lessee.
• Thirdly, he argued that the inrolment subsequent in this case in time of the King that now is, maketh not the lease good, which was made to the Queen, for he thought that the interruptions hindred the operation of this lease (by interrupti∣ons) he meant the death of the Bishop, Lessor, and of the Queen Lessee as it seemeth, and the lease in possession of Sir Edward Dimock by force thereof with∣out inrolment, and therefore he said it was adjudged, if a man covenant to stand seised to the use of his wife which shall be, and there he makes a lease of the land, and then takes a wife, this lease by him is such an interruption, that the use shall not arise to the wife, but in Wintors case in Banco Regis 4. Jac. and also in Rus∣sels case, although it seemed to be there agreed, that the lease for years should be good; yet it was not resolved, but that the wife may have freehold well enough, by vertue of that Covenant, and he also vouched and agreed to Bret, and Rigdens case in Plowden Com.

where the death of the devisce, before that the devisor died did frustrate the operation of the will, and so of the death of the Queen being Le∣ssee: also he vouched the Duke of Somersets case 19. Eliz. Dyer 355. First, as to the exceptions taken to the Bar, by the Attorney general which were two, it seemed to him that notwithstanding them, the Bar is good, for whereas it was objected that the Bar is, that the Commission and acknowledgement of the lease were not returned by Hamond and Porter, who were the two Commissioners who returned it, to that he answered, that the information mentions the acknow∣ledgement, and the return before them two, and therefore there needeth no an∣swer to more then is within the information, also it cannot be intended to be re∣turned by the other two Commissioners, in regard that they were only to the con∣nizance. Secondly, as to the other exception, viz. that where the information saith, that May Bishop of Carlisle by his certain writing of demise, had demised &c. for the Bar is, that the said Bishop made a certain writing purporting a de∣mise, &c. that this shall not be intended the same writing mentioned in the informa∣tion, and 6. E. b. Dyer 70. Ishams case for Ilebrewers Park vouched in main∣tenance of this exception, and he said, that it cannot be intended, but that the Bar intends the same demise mentioned in the information, for here the lease mentio∣ned in the information, and the lease mentined in the Bar, agree in eight several circumstances, as it was observed by the Councel of Sir Edward Dimock; see the argument of Bandrip, and 1. H. 6. fo. 6. where a scire facias was brought against I. S. the Sheriff returned, that according as the writ required, he had made known to I. S. and doth not say, the within named I. S. Altham Baron ac∣cordingly: as to the matters in Law, there are five points to be considered in the case.

• First, he said, that the making of the lease to the Queen without acknow∣ledgement is not good, nor matter sufficient to intitle the Queen, and he vouch∣ed 5. E. 4. fo. 7. and 7. E. 4. fo. 16.4. H. 7. fo. 16.21. H. 7. fo. 18.1. H. 7.17. and 3. H. 7.3. the same Law when awardship is granted; and so an use can∣not be granted to the King, without matter of Record 6. E. 6. Dyer 74. that the Kings Lessee for years cannot surrender without matter of Record.
• Secondly, it seemeth that the confirmation of the Dean and Chapter is good, notwithstand∣ing

• it wanteth inrolment, and notwithstanding the confirmation made before the inrolment, and so before the being of the lease, for here is only an assentor the Dean and Chapter, for the Bishop hath his land in right of his Bishoprick, and an assent may be aswel before the lease as after, insomuch no interest pass••th: so also may an attornement be good, before a grant of the reversion, but otherwise it should be, if an express confirmation was requisite in the case, for then it had not been good, and this difference is, where the parties who confirm have an interest, and where they have only an assenting power, and this is well proved by 29. H. 8. Dyer 40. the Dean of Sarums case, and by Cook lib. 5. 81. and 33. H. 8. tit. confirmation.
• Thirdly, it seemeth, that the bare returning of the Commission without an express inrolment, is no sufficient matter of Record to intitle the King to the lease, for it is without inrolment, no more but an acknowledgement, and the Deed ought to be of Record to pass the estate 7. E. 4. fo. 16. but he agreed, that if the Commissioners return an acknowledgement of a debt, this is suffici∣ent to make a debt upon Record, 2. H. 7.10. but if Commissioners by a dedimus potestatem, to take Conizance of a fine, receive the Conizance of the fine, and return it, yet it is not a fine, until the final Concord be recorded. Cook lib. 5. Tayes case, and so here, it is no record until the inrolment.
• Fourthly, in re∣gard there is no inrolment in the l••fe of the Bishop, and so no perfect leale in his life, this can never be good, for this circumstance of inrolment, is as requisire to the essence, is the attornament is to the grant of a reversion, and is causa sine qua non, for the successor of the Bishop comes in paramount the Lessor, as the issue in tail comes in, partly by form of the guift, and this is proved by the writ of de ingressu sine assensu Capituli in the. Register, and therefore if the Bishop make a lease and dieth, this leale cannot be affirmed after his death, by the Chapter 33. E. 3. entry Congeable 79.11. H. 7. and yet a lease made by the Bishop is not al∣together void by his death, as it appears in Cook lib. 3. in Pennants case, and he compared this case to the case of Smith and Fuller in Plowden, where if a lease be made for so many years, as A. shall name, the years ought to be named cer∣tainty in the life of the Lessor, for otherwise it is not good clearly, and so here the Lessee ought to come in by the Bishop, who was Lessor, or otherwise this is no good lease, and it cannot be so in our case, because it wanteth inrolment, to make it a lease in the life of the Bishop.
• Fifthly, he said the inrolment after the death of the Lessor, shall not have relation to make the lease good, for the Queen takes nothing until the inrolment made, and therefore all is but words until the inrolment, and it differeth much from the case of a bargain and sale, for in such case an use passeth at the Common Law before any inrolment, and this may relate well enough if the Deed be inrolled after within 6. moneths, for the Statute of the 27. H. 8 of inrolments, doth not hinder the relation, for the words are, that nothing shall pals by the bargain (except the Deed be inrolled &c.) so that if the Deed be inrolled in due time, it passeth from the beginning well enough, but o∣therwise it is in our case, see the 12. H. 4. fo. 12. so a fine cannot relate but from the recording thereof, for nothing passeth, but by the Record, and it doth not re∣late as a bargain and sale &c. and as to the exceptions taken to the Bar, he said, that notwithstanding them the plea is good, for it shall be intended the same writing which the information mentions, and it is not like to Mary Dickensons case, Cook lib. 4. fo. 18. where the Plantiff alledged, that the Defendant published a forged writing, in discredit of the Plantiffs utle, and the Defendant said, quod talis Indentura qualis &c. this doth not answer the Declaration, for no like is the same, but in our case the Bar cannot be better, for the information is, that by writing he demised &c. and the Bar is, that well and true it is, that the Bishop by his certain writing made purporting a demise, which he pretended to be no de∣mise in fact, and if he should say in express words, as the information ought to be, then he should confess the thing which is matter in law, and ought not to take a Traverse to the demise alledged, because it is a matter in Law, if it be a demise

• or not: to the second exception he said, that he needs but to answer the express surmise of the information which is, that two Commissioners &c. and the Bat is expressy, that they did not &c. without speaking any thing that the other Commissi∣oners did do any thing, as if an action of accompt be brought, and the Plantiff saith, that the Defendant accompted before A. it is a good plea, that the Desen∣dant did not accompt before A. for though peradventure he accompted before ano∣ther, but this shall not be incended, so the Bar is good.

He accepted to the infor∣mation.

• First, it doth not mention within what time the first lease was intolled, for the words are, modo irrotulat.
• Secondly, the information saith not that the deed of confirmation was ever sealed, but that the Chapter with their seal &c. and saith not sealed, and then it is not good, wherefore upon all the matter it seem∣eth, that judgement ought to be given against the King.

Snig Baron, that the Bar is good, and also the information, first it seemeth, that here is no Record to intitle the King to this land by the lease from the Bishop, for if this deed, which purporteth a lease made by the Bishop, were found by inquisition to be acknow∣ledged, yet it is no sufficient Record 7. E. 4. and 5. E. 4. for the title of the King, ought to be by the Record, immediately from the party who makes the e∣state, and Mr. Stamford is to be considered, that if the King hath an antient right, he may peradventure be in actual possession without Record, but if he com∣eth in as a purchaser; he shall not have without a Record, and this is proved by the case of the Duke of Somerset in 19. Eliz. Dyer, and Mackwilliams case in 3. Eliz. and be said, that as to the relation, if a man seised of a Mannor bargaineth it to me, and rent incurreth before the inrolment I shall not have the rent, al∣though the Deed be inrolled within 6. monehts after, and so of a condition, and if a reversion be granted, and before attornament of the Tenant the rent incurreth, the grantee shall not have the rent notwithstanding any relation: as to the point of confirmation, he vouched the case of Patrick Arch-Bishop of Dublin in Ireland cited in Dyer, also he vouched Dyer fo. 105. and by these books it seemed, that in this case a confirmation is required to be made, and a bare assent is not suffici∣ent, and therefore if an incumbent make a lease for years, and the Patron grants the next avoidance, and after confirms the lease, here the lease is not good in re∣spect the next avoidance interrupts it for his life, but after the death &c. the term will be good, as it was here lately adjudged, and so he thought, that in this case the confirmation is not good, and also that the Commission not being returned, is not good, and after one of the Commissioners die, before the return, it cannot be recurned, and by the inrolment here made the lease cannot take his effect with any relation, and so be concluded, that judgement ought to be given against the King. Tanfield chief Baron, the Commission for the acceptance of the acknow∣ledgement of the Bishop, touching that it is to be known, whether this makes it the Deed of the Bishop, and that the Commissioners should return &c. the con∣firmation in this case, was made in the life of the Bishop Lessor, and of the Queen Lessee, although that some of my brethren conceive the Record to be otherwise, also in this case Dimock entred by vertue of his lease, before the inrolment of the lease made to the Queen, as the Record purporteth: to the points,

• First, I conceive that nothing resteth in the Queen without inrolment, but if Lessee for years be outlawed, the King shall have this lease by the outlawry, for the outlaw∣ry is intended to be upon Record, but of a wardship for land, that is not in the Queen, by the death of the Queens Tenant without an office, because there is no matter of Record, if an Alien hath a lease of land this is forfeited, yet he shall have personal Chattels, and as to the Book of 18. E. 3. cited on the other side, where the King brought a quare impedit &c. this may be well agreed, for the Prior of Durham confessed by Record, that he had made a grant, and this is a sufficient Record, and as to the book of 20. E. 4. where the Patron was outlawed, and before the outlawry the Church became void; that the King shall present, it may be well agreed, although that no office be found, for this presentation is but a

• thing personal, and transitory, and therefore those Books prove nothing in this case.
• Secondly, he said, that when this lease was acknowledged before Com∣missioners, yet that was not sufficient to make a record to intitle the King, and it is here expresly denied in the Bar, that this lease was certified into the Chan∣cery in the life of the Queen, and therefore he thought, that here was no Record to intitle the Queen, and to this purpose he cited a case in 19. Eliz.

Robins and Greshams case, if a Recognizance were acknowledged before a Master of the Chancery and not inrolled, this is no Reco••d, and an Action of debt lieth not thereupon, and the 34. Eliz. in Brock and Bainhams case in this Court, a Re∣cognizance was taken before a Baron of this Court, yet this was no Record without inrolment, and therefore the bare acknowledgement in our case is no Re∣cord: also he denied the opinion of Davers in 37. H. 6. to be Law, but only for personal Chattels, and the 12. Eliz. Brook and Latimers case was ad∣judged against the opinion of Davers for land, or leases. Thirdly, he said, that the successor of the Bishop comes in paramount the lease made to the Queen, and the new Lessee entring before any inrolment, hath made the successor of the Bi∣shop as in his remitter, and when an antient right comes, this prevents the rela∣tion, which otherwise might be by the inrolment, and he said, that the first lease here made to the Queen is meerly dead, until inrolment, and he vouched the 11. E. 4. fo. 1. Vactons case, the discontinuor enters upon the discontinuee, after the discontinuee dieth his heir within age, the discontinuor dieth, this causeth a remitter, and so by him, if the disseissee enter upon the heir of the disseissor, be∣ing an infant and dieth, this avoids the descent by reason of the antient right which the disseissee had, and by 7. H. 7. and 11. H. 7. Eriches case, it appears that an Act of Parliament will not revive a thing that is meerly dead, by reason of any inrolment, and much more here, an inrolment cannot revive this lease which is meerly void by the death of the Lessor, and the entrance of the Lessee of the Bi∣shops successor, and there is a great difference betwixt the inrolment in this case, and the inrolment of a bargain and sale, in regard that the sale is dead before the inrolment, and yet in the case of bargain and sale, it was adjudged in the Com∣mon Pleas Pasch. 2. Jac. in Sir Thomas Lees case called Bellinghams case, that if a man bargain land to A. and before inrolment of the Deed A. bargaines the land to B. which second bargain is inrolled, this inrolment makes not the bar∣gain good to B. for the relation of the first, is only to perfect and make good the conveyance to A. from all incumbrances after his bargain, but not to make the second Deed good which was void before: also in 36. Eliz. in Sir Thomas Smiths case, if the Bargainee suffer a recovery before the Deed inrolled, yet that doth not make the recovers good, and he said, that in this case, until an inrol∣ment of the lease made to the Queen there is no Lessee, and a lease cannot be with∣out a Lessor and Lessee, and before an inrolment of the lease, the Lessor is dead, so that there never was a Lessor and Lessee in life together and therefore the incep∣tion of this lease was altogether imperfect before the consummation came, and so it leemeth by him, that the death of the Bishop Lessor intervening before the in∣rolment is the principal cause, that the first lease is not good: as to the 4^th. point of confirmation, it seems to me, in regard that the Bishop was seised in right of his Bishoprick, and the Dean and Chapter have no interest in the land, so that an assent is only sufficient in this case, it seems to me, that the confirmation (as you call it) is good enough, for it is clear, that an assent may be aswell before the lease as after, for it passeth no interest no more then an Attornment. Cook lib. 5. Foords case proveth this diversity plainly, and by the same reason, also it seems to me, that this assent of parties who have no interest is good enough without in∣rolment, but otherwise it should be, if a confirmation were required in the case: and as to the pleading, I think the Bar is good; and as to the exceptions which have been made, viz. if the lease supposed to be made to the Queen be answered, and he said, it was good enough, for the purpose of the Defendant is to bring the

matter in Law before the Iudges, and the matter in Law is, if it were any lease or not, as the information supposeth, and therefore the Defendant ought not to agree with the information for the matter in Law, and therefore he had done well to shew the special matter as he had done, and not to confess it as it is in the in formation, nor to traverse the said demise, because it is matter in Law: 5. H. 7. and Vernons case Cook lib. 4. he needs not traverse absque hoc. that the lease was made for and in satisfaction of Dower, and to shew the special matter, viz. that it was a conditional lease, and so leave it to the Iudges for the matter in Law if it be a joynture or not: also it seemeth to me, that it is sufficient for the Bar to say, that the Commission was not returned by Hammond and Porter, for that is a Traverse to the information, and it cannot be intended to be returned by any other of the Commissioners, in regard that those two only did execute it for the ta∣king of the acknowledgement as the information mentions, but he said nothing in this case, if this Commission may be returned by those Commissioners who took not the acknowledgement: also by him and Snig (Bromley absent) sigillo suo ratificat. is good enough without saying sigillo suo sigillat. contrary to Baron Altham: also the Defendants have shewed the time in their Bar, when the first lease was intolled, so that it is certain; but it seems to me, that admit the matter in Law was for the King, yet upon this information we cannot give judge∣ment for him, for the information is for the mean profits incurred before the inrol∣ment, and this is clear that the King cannot have them without doubt, (admit that the Bishop had been living) yet the inrolment cannot relate as to the mean profits, although it should be admitted to be good to make the lease good at the time of the inrolment, and so upon all the matter he agreed, that judgement ought to be given against the King, and so it was.

Tanfield chief Baron said, that if a man take a lease of my land from the King by Patent rendring rent, this is not an Indenture to compel him to pay the rent, for the King had nothing to grant, whereupon a rent might be reserved to him. Altham Baron said, that the King shall have the rent here, as by estoppel be∣tween common persons; but it was adjourned.

It was said by Tanfield chief Baron, that a Collector of a fifteenth may levie all the Tax within one Township, upon the goods of one inhabitant only if he will, and that inhabitant shall have aid of the Court to make each other inhabitant to be contributory; which was granted by the Court. Bromley being absent.

Tanfield chief Baron said, that if a man had judgement against A. upon an Obligation, who dieth, and another Obligee of the said A. assignes his Obliga∣tion to the King, the Executors of A. satisfie the said judgement, it is good a∣gainst the King, in respect the debt now due to the King, was not upon Record before the death of the Testator, which was granted by the Court.

Levison against Kirk.

THis Term the case between Levison and Kirk, which was opened the last Term was adjudged: and the case was, that Levison brought an Action upon the case in the office of Pleas against Kirk, and declared, that whereas the Plantiff was a Merchant, and 13. Martii 40. Eliz. intended to go beyond the Seas to M. to Merchandise, and the same day and year at D. he acquainted the Defendant with his determination, and then in the same place appointed and trusted the Defendant being his servant, to receive for him all such Merchandise and goods, which should be sent over, or carried, or conveyed by the Plantiff in the same voyage, and to pay for the custome of them, and to dispose of them,

and convert them for the profit and commoditie of the said Plantiff, and thereup∣on conveyed divers goods to the Defendant, and that the same day and year the Plantiff took shipping, and sailed to M. and that within five dayes following 20. pieces of Velvet were brought into the Port of S. consigned by the Plantiff to the Defendant in the absence of the Plantiff, and that the Defendant on purpose to deceive the Queen of her custome, and to make the Plantiff to allow custome unto him, did take of the said goods so consigned, and land them on the land at S. afore∣said the custome not paid, whereby the Plantiff lost his goods, as forfeited for default of payment of custome to the damage of &c. and upon not guiltie pleaded, a venire facias was awarded to the the Sheriff, that he should cause to come 12. from the Venue of D. and those &c. viz. from the place where the trust was reposed, and from the place where the trust was broken, and thereupon the Defendant was found guiltie, and damages 50. l. and in Pasch. Chibborn Serjeant moved in arrest of judgement that the Action did not lie for every fault against the servant, although it be such a misfeazance, for which the Plantiff receives prejudice, and therefore if you will have an Action in this case, you ought to shew a special trust reposed, and a breach of that trust by the servent, or otherwise an Action upon the case lieth not, and that is not observed here, for although that you shew, that the Defendant being your servant, was appointed and trusted for the goods, to be consigned in the said voyage, yet you did not shew that these goods were not con∣signed in the said voyage, neither do you shew, that he was such a servant gene∣rally used to be imployed in trading for your goods, neither do you shew, that you have allowed or delivered moneys to him, to make him able to pay the custome, and to say, that by the sale of the goods themselves, he may pay it himself, and you appointed him to dispose them at his pleasure, yet hereby you do not inable him thereunto, for he ought to pay the custome before he sell them, and them per∣adventure he had not money to discharge the custome, wherefore there is no cause of your Action, as this Declaration is; and therefore he prayed that judgement may be stayed. George Crook prayed, that judgement may be given, for al∣though it b•• not expresly shewed, that the Plantiff continued beyond the Seas, in the said voyage, at the time of the coming of the goods to the said Port, yet the intendment ought to be so of necessitie, in regard it is shewed, that within five dayes after his departure, and in his absence these goods were consigned &c. and his return cannot be intended in so smal a time, and he vouched 21. E. 4. fo. 13. also it is not material in the case to shew, that the Master hath left where withal to pay the custome, for here the Action is brought in respect of deceipt, and fraud in the Defendant, and this is inferred divers wayes:

• the first, that the Defen∣dant ought to receive my goods.
• Secondly, that he should pay the custome.
• Thirdly, that he should dispose of them at his pleasure, for the profit and como∣ditie of his Master the Plantiff, and it is shewed, that he intended to deceive his Master and the Queen also, and where a wrong is made to another in my name whereby I am damnified, there I shall have an Action, and if in this case, the Defendant had left the goods in the ship, then the Plantiff had suffered no loss, and therefore his taking them out of the ship is the cause, which occasions the loss to the Plantiff, and therefore it is reasonable▪ that he should render us damages, and he vouched the writ of deceipt in F. N. B. and divers cases therein put, and 21. E. 4. that if a man bring an Action in London, and the Defendant to delay my Action brings a writ of priviledge, be shall have an Action upon the case, and he vouched the like case to be adjudged in the Kings Bench 40. Eliz. between Byron and Sleith upon an Action of the case brought by the Defendant, because he sued a scire facias against a Bail in a Court where he ought.

Bromley Puisne Baron said, that the Plantiff shall have judgement.

• First, it shall be intended, that the Plantiff was beyond the Seas, at the time in respect of the Minute of time, be∣tween his departure and the landing of the goods.
• Secondly, he said, that it needs not be expressed, that the Master had left moneys wherewith to discharge

• the custome, for it shall be intended in this case, because the Defendant had taken upon him to meddle according to the appointment of the Plantiff, wherefore &c. and so he departed to the Parliament.

Altham second Baron agreed; that the Statute for the paying of custome appointeth, that if the goods of any man be laid upon the land the custome not paid, that then the goods shall be forfeited, and therefore here he shall not lose his goods, by reason of this Act made by the Defen∣dant, so that if the Defendant be a meer stranger to the Plantiff, without questi∣on an Action of Trespass lies for this taking; then in the principal case, by reason of this trust an action of the case lies, and if a stranger drives my Cattle upon your land, whereby they are distrained by you, I shall recover against the stranger for this distress by you, in an action against him, for by reason of this wrongful Act done by him I suffer this loss, and he vouched 9. E. 4. fo. 4. a case put by Jenney. Snig third Baron to the contrary, I agree that if a stranger put in my Cattle to the intent to do hurt to me, a Trespass lieth, but here is an Action upon the case and that lies not, because it appears not sufficiently, that the Defendant was ser∣vant to the Plantiff to Merchandise, but generally his servant, and therefore an Action of Trespas rather lieth generally, for in an Action upon the case, he ought to hit the bird in the eye, and here it is not shewed, that the goods were for the same voyage, nor that the Defendant is a Common servant in this imployment: also the Declaration is not good, because he doth not shew, that the Defendant had moneys, or means from the Master to pay the custome, and he is not com∣pellable to lay out money of his own, besides he cannot dispose of the goods, until the custome be paid, wherefore &c. Tanfield chief Baron, there are two matters to be considered in the case.

• First, if here you charge the Defendant as your special servant, or if as a stranger.
• Secondly, if as a stranger, then if an Action upon the case, or a general Action of Trespass lieth;

and as to the first, if in this case you have shewed him to be such a servant as a Bayliff, or Steward, and he hath misbehaved himself in such a thing which belongs to his charge, without any special trust, an Action upon the case lieth, but if he be taken to be your general servant, then he is to do and execute all Acts and lawful commands, and against this general servant, if his Master command him to do such a thing, and he doth it not, an action upon the case lieth, but yet this is with this diversitie, viz. if the Master command him to do such a thing, which is in his convenient power, or otherwise not, and therefore if I command my servant to pay 100. l. at York, and give him not money to hire a horse, an Action lieth not for the not doing of this command but if I furnish him with ability to do it, and then he doth it not, an action lieth well against him, and in the principal case it is shewed, that the Plantiff appointed the Defendant being his servant generally to receive &c. and to pay all customes &c. then it is examinable, if the Plantiff sufficiently inabled this Defendant to do this command, and the wo••ds of the command seem to be all one, as if he had commanded the Defendant to receive the Wares, paying the custome, and therefore the Defendant needs not to receive them, if he had not money to pay for the custome, and so it is not within the Plantiffs command to receive the Wares, and then if he doth receive them not paying for the customes, this is another thing then the command, an•• therefore it is no misfeazance as my particu∣lar servant, but being my general servant, he had done another thing then I com∣manded him, whereby I receive some damage, and by consequence is in case of a stranger, for if my general servant, who is not my horse keeper, take my horse out of my pasture and ride him, this is a thing which he doth not as a servant, but as a stranger: then as to the second matter, the Defendant being as a stranger, if an action upon the case, or a general action of Trespass lieth, for this is, as if my general servant take my horse, and rides him without my appointment, a ge∣neral action of Trespass lieth, but if by reason of his riding my horse die, an acti∣on upon the case lieth, and so it is in the case here, the Defendant had laid the goods upon the land, by reason whereof they were forfeited, it is collourable,

that an Action upon the case lieth, but if a man take my goods, and lay them up∣on the land of A. a Trespass, or an Action upon the case lieth against him, who took them by the better opinion; but it is good to be advised, and it was adjour∣ned; and at another day Altham Baron said, that an Action upon the case, or a Trespass generally did lie well enough, and he vouched F. N. B. that if a Bailiff arrest one without any warrant, I shall have Trespass generally, or an Action upon the case at my election, and so in the like case 18. E. 4, fo. 23. Trespass, or Action upon the case lies also: by F. N. B. if Executors be outed by the Testa∣tors Lessor, there they may have an Action upon the case, if they will, or Tres∣pass generally, and in Slade and Morleys case, a case was put, which proves it to be according. Snig Baron agreed, that Iudgement ought to be given for the Plantiff, and by Tanfield, if I take your goods, and detain them, until I have caused you to pay me 10. l. a general Action of Trespass lieth, and not an Action upon the case, and it is cited 7. H. 4. or 7. E. 4. to be accordingly: but yet he agreed, that judgement should be entred, and so it was appointed to be done; but then Chibborn for the Defendant said, that here is a mistrial, for if this trust be not material, because it is not effectually shewed in the Declaration as you have argued, then the Venue shall come only from the parish, where the Wares were laid upon the land, and not from the parish also, where the appoint∣ment or trust was made by the Plantiff, and therefore the trial also being from both parishes, is a mistrial, and the Court agreed, that this is a mistrial upon that reason, for now the appointment or Trust is but an inducement, and there∣fore needs not to be shewed within what parish it was made, and therefore a new Venire facias was granted, and upon that a new trial, and damages more then be∣fore, and judgement was given accordingly.

Arden against Darcie.

NOta, a good case of Attornament, which was decreed in the time of Baron Manwood betwixt Arden and Darcie, and it was this; one Arden was seised in fee of divers lands in the County of &c. and made a lease for years, and after made a feofment with words of Grant of those lands to A. and B. to the use of the feoffor, and his wife for their lives, the remainder to Arden his son in tail, and after the feoffor said to the Lessee, that he had conveyed his land, which the Lessee held in lease to the uses aforesaid, and the Lessee said, I like it well, and after he paid his rent to the feoffor generally, and it was decreed in the Exche∣quer Chamber, that this is no Attornament, because the Attornament ought to be to the feoffees, and it appeareth not, that the Lessee had notice of the names of the feoffees, and therefore it cannot be said, to amount to an Attornament, but not∣withstanding that Decree, Arden the same to whom the remainder was limited, had his Action depending in the Kings Bench to trie the point again, as he said to me: also this Term, a point concerning the said Decree was in question, upon another Bill exhibited in the Exchequer Chamber by Sir Edward Darcie against Arden, and the case was as followeth. Sir Edward Darcie exhibited his Bill here in the nature of a scire facias against Arden, to shew cause, wherefore the said Edward Darcie should not have execution of a Decree made, in the time of Baron Manwood, and the Defendant shewed, that Darcie in his first suit sup∣posed by his Bill, that he had a grant of the land then, and now in question from Queen Elizabeth rendring rent, as it appears by the letters Patents, and in fa∣cto there was no rent reserved upon the Patent, and that the Defendant gave an∣swer to the said Bill, and admitted the Iurisdiction of the Court, and after a De∣cree was made against the Defendant, and the Defendant now having shewed this special matter demurred upon this Bill, in respect that by his pretence the Court had not jurisdiction to hold plea in the first suit, and here it was shewed, that the

first decree was made upon a matter in Law, not properly examinable by Eng∣lish Bill, and that in facto, the Law was therein mistaken, and therefore the Defendant prayed that the decree may be re-examined. Tanfield chief Baron, it is usual in the office of Pleas, that if an action be brought, as a debtor of our Lord the King, this is good, although that de facto no suggestion be made thereof, if it be not shewed on the other side, and therefore a writ of Error for this falsity shall not cause the judgement to be reversed, as it was resolved in a case in which I was of Councel, and so here as it seemeth. Altham Baron, here we are in equity, wherein we are not tied to so strickt a course, as if it were in the office of pleas. Brock of the Inner Temple for the Defendant, in a Court of equity, it is in the discretion of the Court to deny Execution of a decree if good cause be shewed, and in 18. E. 4. fo. 1. judgement was given against a married wife by the name of a feme sole, and reversed, although she did not shew in the first suit, that she was married, and in 8. E. 4. judgement was given in the Kings Bench in a suit, and by writ of error was reversed, although the Defendant had admitted the Iurisdiction of the Court, and the chief Baron, and all the Court inclined, that Arden may exhibit a Bill to reverse this Decree made against him, and may shew what point in Law the Iudges mistook in the Decree, or otherwise we should not do as Law and Iustice requireth, for it is not expedient to be examined by way of Bar to this Bill in the nature of a scire facias: and after Arden accor∣ding to the Decree of the Court, and their direction did exhibit his Bill in the nature of a writ of error, Comprising how the first decree was erroneously made, and prayed, that the said decree might be reversed, and in his Bill he shewed the point in Law, which was decreed, and that upon divers long conveyances ap∣pears to be thus, and so it was agreed by Councel on both parties; that Arden the father was seised of the Mannor of Cudworth in the County of &c. and was also seised of the Mannor of Parkhal in the same County, and of Blackclose &c. which was parcel of the Mannor of Cudworth, but lying neer unto Parkhal, and alwayes used and occupied with it, and reputed parcel thereof, but in truth it was parcel of Cudworth, and that Arden the father made a Conveyance of the Mannor of Parkhal, and of all the lands thereunto belonging, and reputed as parcel thereof, or occupied with it, as part, or parcel thereof, and of all other his lands in England, (except the Mannor of Cudworth) to the use of Arden his son that now is Plantiffe here, and if Blackclose will pass to the son by this con∣veyance, or if by intendment it shall be excepted by the exception made, it was the question here, and was decreed in the time of Baron Manwood, that it is excep∣ted by the exception, but all the Barons now thought it, to be a strong case, that Blackclose is not excepted by the exception of the Mannor of Cudworth, and so the first decree was upon a mistake out of the Law; and Tanfield chief Baron said, that the point is no other, but that I infeoffe you of Blackacre, parcel of the Mannor of D. exceyt my Mannor of D. this doth not except the King by express terms; quaer. if in this case there was any land occupied with Parkhal, which was not parcel of Cudworth, nor of Parkhal, for if so, then it seems that Blackclose will be within the exception, in regard that the words and lands occupied therewith, viz. Parkhal are well satisfied. Harris Serjeant said, that the case is to be re∣sembled to the point in Carter and Ringsteeds case, concrrning the Mannor of Odiam, where a man was seised of of a Mannor within which the Mannor of D. did lie, and is parcel thereof, and he by his will devised the Mannor of D. except∣ing the Mannor of Odiam, where the Mannor passeth by the devise, and is not excepted. Snig and Altham Barons agreed, that this proves the case in equity, but by the chief Baron Tanfield, because this is a rare case, that we should reverse or undo a decree made by our predecessors in the very point decreed by them, it is good to be advised, and therefore they directed Arden to finde presidents if he could, by search made for them in the said case, and therefore the Attorney gene∣ral who was of Councel for Darcie, had demurred upon the Bill which was ex∣hibited

by Arden, and that he being not present, day was given until another term to hear Councel on both parts, at which day the Attorney said, that he con∣ceived it a strange case, and without president, that a Court should impeach and reverse the decrees given in the same Court, and that if it should be suffered, the subjects would be vexed and troubled without any end or quiet, and this stands with the gravity of every Court to maintain their own judgements, and therefore several Statutes were made to reverse judgements upon erroneous proceedings, and judges of other Courts constituted to examine them, which proveth, that before the Statutes aforesaid, and without aid of them the Iudges would not re∣verse their own Iudgements, and so here. Harris to the contrary, it is not without presidents, that in a Court of equity one, and the same decree in the same Court hath been reversed by decree of the same Court, upon some considera∣tion had of the erroneous misprisions of Law, and it is no dishonour to a Court of justice so to do for matter in Law, but otherwise it were for matter of fact, for then that betrayeth an Ignorance in the Iudges, which would be a dishonour to the Court, but for Law men are not Angles, and for that point, there may be errour; to prove that the Court of equity may do so, he vouched the Book of 27. H. 8. fo. 15. Martin Dockwraies case, which is our very case ruled in the Chancery, and so he said, that in this Court 3. Jac. a decree made in the time of Baron Manwood was reversed upon the like reason; and Tanfield chief Baron said to Serjeant Harris, that if it appear by your president, that if the same mat∣ter in Law which was decreed was reversed in the same point in Law, then this proveth for you, but if it were for matter of fact, otherwise it is, and therefore we will see your president.

Kent and Kelway.

KEnt and Kelway entred Hil. 6. Jac. Rot. 722. in the Exchequer, in the case between Kent and Kelway, which was debated Pasc. 8. Jac. the Iudges pronounced in the Exchequer Chamber, that judgement ought to be af∣firmed, notwithstanding their opinion before to the contrary as it appeareth, and therefore I demanded of Mr. Hoopwel Clark of the Errors, what was the rea∣son of their opinions, and he told me that the case was debated by them this Term at Serjeants Inne, and then they resolved to affirm the Iudgement; and the rea∣sons as he remembred were as followeth, and he also delivered unto me the case, as he had collected it out of the Records, and delivered it to the Iudges, which was, that the Plantiff in the Kings Bench declared, that one Benjamin Shephard was indebted to him in 300. l. and that he sued out of the Kings Bench, an Alias Capias directed to the Sheriffe of N. to the intent to compel the said Benjamin Shephard upon his appearance to put in Bail, according to the custome of that Court, for the Recovery of his debt, which writ was delivered to John Shaw; Sheriffe of the said County, to be executed, the Sheriffe made his warrant, to the Bailiffe of the liberty of the Wapentake of Newark, and the Plantiffe him∣self delivered it to James Lawton Deputy of the Lord Burley, the Kings chief Baili••e of that liberty to be executed, and the Deputy Bailiffe by vertue of the said warrant arrested the said Benjamin Shephard, whereupon the Defendant with others made an Assault, and rescued the said Benjamin Shephard out of the custody of the said Deputy Bailiffe, whereby he lost all his debt, and damages were assessed at 172. l. and cost 10. l. and in this case the Iudges agreed, that not∣withstanding the Defendant had rescued the said Benjamin Shephard out of the hands of &c. when the said Benjamin Shephard was arrested upon an Alias Ca∣pias out of the Kings Bench, which writ is only in nature of a plea of Trespass, yet the party who rescued him, shall answer in this action, damages for the debt, because the Plantiffe by this means had lost his debt. And yet it is not shewed,

that the Rescuer knew that the Plantiffe would declare for his debt, but if in this case, the Sheriffe or Bailiffe had suffered a Negligent escape, they should be charged only with the damages in the same plea as the writ supposeth, and no for the debt, and so a diversity: also they agreed, that the Declaration is good enough to say, that he was rescued out of the hands of the Deputy Bailiffe, and the course in the Kings Bench was alwayes so, upon the return of a rescue, not∣withstanding the Book of the 7. Eliz. Dyer fo. 241. also it was resolved, that the Declaration was good, saying that he sued an Alias Capias without mention of any latitat before sued: also it was agreed, that the arrest was good made by the Deputy Bailiffe, by vertue of a warrant delivered to the Sheriffe: but quere, if they should not examine, if the Bailiffe had a power given to make a Deputy by his Patent, for this appears not in the case.

Bently and others, against Leigh in Trespas Hill. 45. Eliz. Rot. 1231. Trin. 7. Jac. in the Exchequer.

TPe Iudges affirmed a Iudgement this Term, between Leigh Plantiffe in a writ of Error, and one Bentley, and others Defendants, and the mat∣ter assigned for Error was, because the Trespass was brought in the year 45. Eliz. for a Trespass made in the 42. Eliz. and the judgement upon the verdict was a∣gainst the Defendant, and the Margent of the Roll it was entred: quod Defen∣dens capiatur, where it ought to be pardonatur (as he pretended) for the gene∣ral pardon, which was in 43. Eliz. had pardoned the fine to the King for the Tres∣pass, and this is a thing whereof the Iudges ought to take notice, as it was said by Damport, who was of Councel with the Plantiffe in the Error, for this word capiatur is of course entred in the Roll, for the Kings fine which is due by him who is convicted of Trespass, as it appears by Cook lib. 3. in Sir William Harberts case, and in this case the fine was pardoned, therefore pardonatur ought to be entred, as it was in Vaughans case, Cook lib. 5. but the Iudges resolved, that of these general pardons they are not bound to take notice without pleading, for in regard there are divers exceptions in them, the partie ought to shew, that he is none of the parties excepted, as the Book is in—E. 4. but if they will, they may take notice thereof without pleading, as it seems by Vaughans case, and so said the Iudges in the Common Pleas this Term, and so here the judgement was affirmed.

Calvert against Kitchin and Parkinson Trin. 7. Jac. in the Exchequer.

IN Trespas by Calvert against Kitchin and Parkinson, upon a special verdict these points were moved and argued by the Councel at Bar, and first ••••e case in substance was, that one Parkinson was a devisee of the next avoidance of the Parsonage of D. the which Church became void by the death of the Incumbent, and after one A. and the said Parkinson Simoniacally agreed, that the said Kit∣chin should be presented by the said Parkinson to the said Church aforesaid, and that after Kitchin not knowing of this Simoniacall agreement was presented, instituted, and inducted to the Church aforesaid, and all this was after the Sta∣tute of 31. Eliz. cap. 6. and after Queen Eliz. intending, that this presentation belonging to her by reason of this presentation for Simonie, by force of this Sta∣tute of the 31. Eliz. presented one D. and before that B. was admitted, and insti∣tuted

the Queen died, and now the King presented Calvert with out any recital, or mention of the presentment made by the Queen, and without any Revocation actually made of the said first presentation, and thereupon Calvert is admitted, and instituted; and for the Tithes as Parson he b••ought Trespass. Hitchcock intended three questions as he said, but moved also other things.

• First, if a de∣visee of the next avoidance be a Patron within the intent of this Statute, of the 31. Eliz. cap 6.
• Secondly, it within the said Statute here be Simonie in the Patron, and not in the Parson, if this ought to prejudice the Parson or not.
• Thirdly, if the King ought to present by this laps after the Queen had made pre∣sentment without recalling of the former presentation, or if the presentation of the Queen ought to be adjudged a Turn: to the first matter he said, that a next avoidance is a thing devisable well enough within this Statute, for the truth is, it is not a thing of any value in the accompt of Law, and therefore it is no preju∣dice, although that the third part do not descend to the Patron, for the Common Law intends it to be of no value, and he said, that the form of conferring to a benefice, was ad ecclesiam &c.

as appears by 7. E. 3. fo. 5. and he vouched Bracton to prove, that the Patron had nothing but to provide, that the Church should be full &c. and to prove, that this is a thing devisable, he said that it was so adjudged in the Common Pleas, Mich. 33. and 34. Eliz. Rot. 2122. but admitting that here was not any Patron by reason of any devise, then if he, who presented be a disturber, and had acquired this Patronage hac vice by Vsurpati∣on, then that also is given to the King within the intent of this Statute, by rea∣son of this agreement for Simonie, and therefore he said, that if he who had but a nomination corruptly agree to make a presentation, or nomination, this nomi∣nation shall be forfeited to the King, within this Statute, as it is said in Plow∣den, in Hare and Bickleys case, he who hath the nomination, hath the effect of the Advowson: and also he observed the words of the Statute, which say, that if any person do for money &c. present any one &c. that every such persons presen∣tation shall be void, and it shall be lawful for the King to give the same benefice, for that turn &c. so that if he had title or not, yet this turn is forfeited to the King as by the Statute of 1. Jac. cap. 33. it is provided, if any goods which ought to pay subsidie, be laid on the land, the subsidie not paid &c. the same goods shall be forfeited: it hath been agreed, that if a stranger who had nothing to do with these goods, cause them to be laid upon the land, that they shall be forfeited against the owner, as it was admitted in Levison and Kirks case, in 7. Jac. and so here in respect that the true Patron suffers a Vsurper to present, and his presentee to be admitted and inducted, this turn shall be forfeited to the King, by reason of the Simonie against the rightful Patron, and he conceived, that although that the Presentee in this case, was not partie to this corrupt agreement, yet he shall be prejudiced by it, although not so prejudiced thereby, but that he may be ca∣pable to be presented again to the same benefice, but, hac vice the presentation of him is void; for as Littleton saith, the presentee ought to accept the Parsonage subject to such charges as the Patron pleaseth, who in the time of Vacation hath power to charge it, and so by his Act had made it subject to the forfeiture, and therefore the person who cometh under him shall be prejudiced, and therefore he vouch•••• the case in the 19. H. 8. fo. 12. if a stranger agree to disseise an infant to the intent to infeoffe the Infant, although that the Infant were not knowing of the Coven, yet he shall not be Remitted, because he came in under a wrong deer. To the third matter he said, that the King may revoke his presentation, and by the same reason he may present another, before his Presentee is instituted, and to prove it, he said, that a Common person may recal his Presentation before the institution &c. and he vouched the Book of the 31. E. 1. Tit. quare impedit 185. the Abbot of Leicesters case, although that Dyer citing of it, 12. Eliz. fo. 292. conceives the Book contrary, but it seems to be in reason that the Law is cleere, that a Lay person may change, although that a Spiritual person cannot, and

the reason is, because a Lay person did not know his sufficiency peradventure at the first, but a Spiritual person by intendment may inform himself thereof wel enough, and therefore he vouched 18. H. 7. and 1. H. 8. Kelloways Reports, which proves that diversity plainly as he said; then he thought by the same reason, if the King present one, and dye, or vary before institution, that here, he himself, or his successor, may present anew, and seemed to him no question, and to this pur∣pose he vouched, 12. Eliz. Dyer fo. 292. that he may repeale, and it is not of necessity that this instrument which purporteth the repeale, should be shewed to the Gardian of the Spiritualties, and by the 19. Eliz. fo. 360. in Coleshils case if it is said, that when the King hath presented, a Repeale by him ought not to be admitted after institution, see for such matters in the Book, also he vouched Dy∣er 339. Yattons case to prove that the King may repeale his presentation, by a new presentation, without mention made of the former, except that the second presentation be obtained by fraud, as there it is, and he vouched Dyer 294. Good∣mans case, and so he concluded. Damport to the contrary, there are two points,

The first is the Patron, and a stranger corruptly agree to present Kitchin, whereupon he is presented, if this shall be void against Kitchin. 2. admitting that the Queen had title to present, and she presents, and dyes before admittance, if the King may present a stranger, without mentioning the other presentation to be repealed. As to the first, he said that at the common Law, so if one be simoniacal∣ly presented, yet this is not void untill the Presentee be deprived, and if before this Statute, such a corrupt presentment had been made, the incumbent and or∣dinary being free, then no presentment should ensue, and he vouched the saying of Linwood an Author of the Civill Law to be accordingly, but if money be gi∣ven by the friends of the Presentee, and after the King had notice thereof and as∣sent, then it is not punishable, but pardonable at the discretion of the King, and now by him the Statute provides no punishment for the person, when the Patron only consents to the Simonie, for he observed that after the said Statute of 31. Eliz. had appointed a punishment for the Patron then in the last part of this branch the words are, the persons so corruptly taking, &c. shall be incapable of the Bene∣fice aforesaid, and so it seemeth, that the intent of the Statute is not to punish any party, but he that is to the Simonie, and this is also explained to be so, by other Clauses in the Statute, for another Clause inflicts punishment upon him who is party to a corrupt resignation, and so in all the clause, those only who are partakers of the Crime shall be punished, and to prove that such comstruction hath been made upon penall Statutes, that he only shall be punished, who had notice of the crime, he vouched Littleton who saith, that upon the Statute of Gloucester notice was requisite, or otherwise no default, also he vouched to this purpose the case of Pickering in 12. Eliz. Dyer fo. 292. a Lay Person presents a Bastard to a Benefice, who was admitted accordingly, &c. and in a suite thereupon, issue was admitted to be taken, if the Patron knew that he was a Bastard, so if he had no notice thereof, then there is no default in him, and he vouched 43. E. 3. to this pur∣pose, & 22. E. 4. tit. consultation, and he well agreed. Closse and Pomcoyes case now lately adjudged, which was, that Sir George Cary being seised of a•• Advow∣son, granted the next avoidance to his second sonne, and dyed, and after the Sonne, corruptly agreed with I. S. to procure the said I. S. to be presented to this Bene∣fice, and the second brother knowing thereof, it was agreed, that for the perfecting of the agreement, the second Brother should surrender his Grant and interest to the elder brother, which elder brother not knowing of the said corrupt agreement, pre∣sented the said I. S. who was instituted, &c. all shall be void, for he is presented here by reason of this corrupt agreement between the Patron who then was, and the parson, and the elder Brother was only used to convey a bad gift by a good hand, and all had reference to the corrupt agreement, with the assent of the Pa∣tron who then was, but here in our case was no agreement assented unto by

the Parson, and this diversity also seems to be good, that if A. hath the presenta∣tion, and B. the nomination to a Benefice, and the Presentor upon a corrupt a∣greement, makes a presentation unknown to the Nominator, here the Nominator shall not be pre••udiced within this statute. As to the second matter it seemes, that by the demise of the Queen this presentation is not countermanded or repealed in Law, and therefore he said that he would agree, that if the Qeen had made such an Act which was only a bare Authority without interest, this will determine by her death, as it was ruled for a Letter of Atturney to execute livery of Dutchy Lands, for this is a bare Authority, and is a means to do a thing to her prejudice, and he agreed that by implication or without cause a common person could not vary from his presentation, as if a Feme sole present, and intermarry, this is not controul∣ed by her marriage, for it is a thing which is not to her prejudice, and he vouch∣ed Cook lib. 4. Forse and Hemlins case, and one Marke Ogles case, proveth that the death of a Common Patron is no revocation of his presentation, for if a man present, and dye, if it be a disturbance, his Executors may have a Quare impe∣dit, and much more in the case of the King who dyeth, but he well agreed, that the King might have repealed his presentation, and after have resumed it again, which proveth that it is not a meere Authority, but mixt with an interest, for an Authority revoked cannot be revived, but without Actuall repealing it is not to be avoided, and therefore he vouched Sir Thomas Wrothes case in Plowden fo. 457. That if the King grant to one licence to purchase Land, in respect that by a means this doth acquire an interest to a party, this doth not determine by the demise of the King, although the Grant be not for the King and his Successors; so here this presentation is a meanes to give an interest to the Party, and therefore is not de∣termined by the Demise of the King, and he vouched 1. Ma. Dyer fol. 92. and so if it be a Licence dispensative, this is not determined by her death, and he vouched 3. E. 3. fo. 29. cited in Sir Thomas Wrothes case, see more after.