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

Pasch. 7. Jac. in the Exche∣quer.

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

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

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

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

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

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

The Earl of Cumberlands Case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Doillie against Joiliffe.

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

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

Shoftbey against Waller and Bromley.

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

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

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

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

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

Trallops case.

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

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.

Mich. 7. Jacobi in the Ex∣chequer.

Sir Daniel Nortons case.

IN Sir Daniel Nortons case it was agreed that where one Oglander was chargable to the King for 27. l. for an Amercement, for which Processe issued out of this Court to Sir Daniel Norton Sheriff of Hampshire to levie it, and his under Sherif being Chamberlain came to Oglander upon another occasion, and Oglander said unto him, Chamberlain you do owe vnto me 30. l. by bond, I pray you pay me, whereunto. Chamberlain said, you are to pay me 27. l. for an Amercement which I ought to Levy against you by Process which I have, and if you will give me my Bond, I will give you 3. l. and discharge you of the said Amercement, to which Oglander agreed, and delivered the Bond accordingly, and all this Oglander disclosed by Affidavit, and further said, that Sir Daniel Norton had taken his goods for the said Amercement again, this not being discharged in the Office, and it was said by the Court, that this was a good levy of the said A∣mercement by Chamberlaine in the Law, and therefore Sir Daniel Norton ought to be charged for it to the King, as a thing levied by him, and Oglander shall be discharged of any another levying, and therefore, &c.

Sawier against East.

SAwier against East in an Ejectione firmae for certain Mills in East Smithfield called Crush Mills, a speciall Verdict was found that Queen Eliz. was sei∣sed of them in right of her Crown, and the 28. of her Raign leased them to Potter for 40. years, who in the 30. Eliz. dyed, and Mary his Executrix entred, and

took to Husband one Burrell, which Burrell 33. Eliz. demised parcell to Wil∣kinson for 20. years, and dyed, Mary took Hitchmore to Husband who in 44. Eliz. 2. May surrendred to the Queen, and after the 2. of June 44. Eliz. the Queen reciting the first Demise made to Potter, the interest of which is now come to Hitchmore, and that he had surrendred to us; demised the premisses to Hitch∣more as well in consideration of xxx. l. paid as for that, that the said Hitchmore did assume upon himself to repair the said Mills at his own cost being greatly in de∣cay, and to leave them so repaired, and the Iury also found that in the same Pa∣tent there was a Covenant that Hitchmore should repaire them, &c. for the do∣ing thereof he had given some assurance, and that the Mills were not repaired, and that the Lease made to Wilkinson is now in Esse, being for 20. years, and that the King that now is, had granted the said Mills to the Lesse of Sawier, &c. Walter for the Plaintif, First, it seemeth that this false recitall in the lease made to Hitchmore makes the lease void, and the point is, that the King by re∣citall in this Lease; intends that all the interest of the former lease was surrendred, whereas Wilkinson was possessed of part thereof, and so it is in deceit of the Queen in matter of Profit; and therefore makes the new Lease void, and to prove that a false recitall in the Patent may avoid it, he vouched 37. H. 6. fo. 23.3. H. 7. fo. 6. and 11. H. 4. fo.—in all which cases it is said, that if the King make a Grant upon a suggestion made to him which is false, this will avoid the Patent, but if a true suggestion be made to the King, and he himsel there∣upon makes a collection or surmise, this doth not avoid the Patent, as the Lord Chandos case, Cook L. 6. and by 21. E. 4. fo. 48. By Hussey, but there if the surmise of the party be false in any thing, this avoids the Patent, and therefore Hussey there saith, that if the King recite: that whereas the Mannor of D. is escheated to him, and he grants it to A. where in truth it was parcell of his Auti∣ent Inheritance, this doth avoid the Patent, but there by him if the King recite that whereas his servant is decrepit, he of his meere motion grants the Mannor of D. to him, this falcity doth not avoid the Patent, because the consideration is of his meere motion, and by intendment the recitall is not the information of the par∣ty, and then in our case, the lease is not ex gratia, &c. and the recitall is the reci∣tall of the party, for it is of an Act done, viz. of a surrender supposed to be made by the party, and that upon the matter is resolved to be a cause to avoid the Patent, as it is in the Lord Chandos case and so also holden by Hussey in 21. E. 4. fo. 48. and 9. of E. 4. in Baggots Assises, if the surmise of the party be false, and valuable to the King, then the falcity there avoids the patent, but if it be not of a thing valuable, or beneficiall to the King, the falsity doth not avoid the Patent, 29. E. 3. Grants 58. if the King recites that whereas the Advowson of D. is holden of A. and he licenceth A. to appropriate, if in facto, it be holden of the King himself, the licence is not good, because the King is deceived in matter of profit, and so 12. Eliz. Dyer 292. and 25. E. 3. there cited, where the King presents, and before admision, he repeals, and then recites, that whereas his Presentee is Canonice institutus, &c. and confirms it, here although that the Bishop after this repeale had instituted the party, yet it appears, that the recitall, which is void, makes al∣so the confirmation void, 8. H. 7. fo. 3.9. H. 6. fo. 28. and 21. E. 4 if the King recite, that whereas the Mannor of D. came unto him by the Attainder of A. be grants to B. and in truth this did not come by the Attainder of A. but is an inheri∣tance of the Crown, this avoids the Grant, and 21. E. 4. fo. 28. by Bryan, if the King recite that he is indebted to A. in 20. l. and grants to him the Mannor of D. if he be not indebted to him the Grant is void, and so it appears by Sir Hugh Cholmleyes case, Cook lib. 2. fo. 54. that if the Queen recite a thing, the fal∣sitie whereof doth prejudice her in matter of profit, now the misrecitall avoids the Patent, as there it was admitted, that if the Queen recite that whereas A. is seised of an Acre in taile upon a condition, &c. and she grants the reversion to B. here if the state of A. were without a condition, the grant of the reversion is void,

for this false recitall, and according he vouched Alton Woods case, Cook L. 1. and in our case it is prejudiciall to the Queen, that all the interest in the former lease is not surrendred, but a part thereof is in Wilkinson, for the Queen intend∣ed that all this Land now leased should be immediately lyable to her rent newly reserved, where in deed it cannot be so here, untill the antient lease be determin∣ed, whereby, &c. this recitall is tacitely intended part of the consideration: For the second Point, it seemeth that here is a falcity in the consideration expressed, for the Queen leased to Hitchmore as well for 30 l. as for that, that he assumed to build and sustaine, so that the assumpsit to build and sustain is part of the consi∣deration, and therein the Queen is deceived, and to prove that the word (pro) is as good as if it had been in consideration, he vouched 43. Eliz. Luttrels case, that the word (pro) implyes a consideration, and here the finding of the Iury is, that no other security or assurance was given to the Queen, here the Queen can have no remedy upon this promise without matter of Record, and this is proved by 26. E. 3. fo. 20. and without question the King intended by this Assumpsit that she might have remedy for the not performance thereof, and although the Iury finds a Covenant in the Patent for repairing, yet this is no sufficient perform∣ance of the consideration, for the words (super se assumpsit) imploy a thing pre∣cedently done, and not to be done or contained in the same Letters Patents, as if the King recite in consideration that A. had surrendred, he grants the same laud supposed to be surrendred, although the very acceptance of the new grant is a sur∣render, yet this is not the surrender intended, nor this is not the consideration which moved the King, for he intenedeth a precedent surrender, and the very words and intent ought to be performed in the point of consideration, or other∣wise the grant is meerely void, although it be not of a thing beneficiall to the King, as appears by Cooke lib. 6. in the Lord Chandos case, and although the consideration be but of a personall thing, and not of a reall, as the difference is ta∣ken by our Books,) and although that the consideration be of a thing executed; and not Executory, (as also some Books take a diversity) yet as it seemes to me the falcity herein avoids the Patent, for this is of a thing which sounds to the Kings commodity, and he vouched Barwicks case, Cook l. 5.94. and 3. H. 7. that if the King for money paid makes a grant, &c. there it ought to be averred that the money was paid, and in 21. E. 4. fo. 48. if the King in consideration that A. had released a debt wherein truth there was no such debt, &c. this fa••city avoids the grants. Also if the King in consideration that A had surrendred his Letters Patents of an Estate Taile, Grants him, &c. although that by the surrender the King was to have benefit notwithstanding because the estate yet continueth, there∣fore this falsity avoids the Patent, as appears in the Lord Chandos case, Cook Lib. 6. Altonwoods case, Cooks lib. 1. fo. 43. and in our case the consideration is of a thing beneficiall to the King to be performed, therefore the falcity much more avoids the Grant: Also the Covenant found here to be made doth not aide the matter at all, for it is not proper to be called a Covenant in Letters Patents, because he did not seale unto it, and it cannot be called his deed, but yet shall be bound thereunto for his estate, but not by way of action, as the consideration intends. Also it seemeth, notwithstanding the construction here was, that in consideration the Lessee would repaire, &c. yet as our case is, the Pa∣tent is void, because it is not repaired according, as appears by Barwicks case, Cook lib. 5. fo. 94. that if the consideration in the case of the King be not duly performed; and that prejudice may accrew to the King, by reason of the not per∣formance thereof, this avoids the Patent. Also if the case be so, this would be an estate conditionall between common persons, 38. H. 6. and the 6. E: 6. Dyer, 72. and 21. E. 4. by Hussey pro quod Relaxabit, &c. and so in Sir Thomas Wrothes case, Plowden, and 15. E. 4 for the King had no other remedy to com∣pell the thing to be done, except to seise the land for the not performance, & therefore it appears by 21. E. 4. and Cook in Altonwoods case, that the Grantee ought

to plead this consideration to be performed on his part, which also appears by Sir Thomas Wrothes case, if it be of a thing Executory, and so for all these causes I pray that Iudgement may be given for the Plantiffe. Crook George at another day argued to the contrary, and he answered three points.

• First, it hath been agreed, that the lease is void upon a false consideration imployed, viz. the mis-recital.
• Secondly, admit that it is not void for that, yet here part of the express consideration is not performed.
• Thirdly, the lease made to Hitchmore was in Iudgement of Law conditional, and the condition not being performed makes an avoydance of the lease.

To the first point it seemeth, that this false recital doth not avoid the Patent, yet I agree the cases, and Books which have been cited out of 9. H. 6. fo. 27. and 29. E. 3. Grants 58▪ for in these Books it appears, that the King is deceived both in point of suggestion, and in point of interest, but our case is not upon a false suggestion, which doth prejudice the King in interest, and in our case the King expresseth another thing to be the Consideration of his grant, and the suggestion is not the consideration, and therefore there is a great diversity, and to warrant this to be a material diversitie, he vouched the Rule of the case in 21. E. 4. fo. 49. in Sir Thomas Wrothes case in Plowden, for in 21. E. 4. it is agreed, that the mis-recital that it was the Kings free Chappel, is not material for the King, is not deceived in point of interest, and although that the book 3. H. 7. fo. 6. is that if the King relase to a Prior a Corody, because that the Priory was of the Kings foundation, whereas it was of another mans foundation, and therefore the re∣lease should be void, because of the falsitie, although that it be a falsitie in the consideration, and so more strong then in our case, yet in the said case, it was adjudged to be a good release, as appears in Plowden 331. put in the case of Mines, and so is 3. H. 7. fo. 7. and that this is not Law; see Altonwoods case Cook lib. 1. accordingly, and as to the book 15. E. 3. there cited, he did a∣gree unto it, for if the King hath the title to present, and he presenteth one not according to this title, this presentation is void: see Greens case in the Kings Bench 44. Eliz. accordingly, and now reported by the Lord Cook lib. 6. fo. 29.8. H. 7. fo. 3. if the King grant the Mannor of D. of the value of 10. l. and this is of the value of 20. the King is deceived in the matter of value by the Informa∣tion of the party, and therefore the grant is void, which was agreed in point of judgement in the Kings Bench 2. lac.—between Mason and Chambers, but there it was adjudged, that if the King will grant to A. the Mannor of D. which Mannor is of the value of 10. l. yearly whereas it is worth 20. l. yet the Grant is good, because the words which Mannor is worth &c. are words but of the Kings recital, and in our case here is but one express Consideration, and therefore the recital is not material, see 37. H. 8. Brook Patents 100. that book maketh a quaere, if a false consideration doth not avoid a Patent aswell as false suggestion, but the book upon which I do principally relie, is a point resolved in the principal case of Altonwood, Cook lib. 1. fo. 45. or 43. where the King recites that he had made a lease to A. and B. and that whereas they had surrendred the Patent of the said lease, he in consideration of the said surrender makes a new lease to A. and B. here although, that in fact the demise supposed in the recital to be made to A. and B. was void, and so the King was deceived in the matter of re∣cital, yet in respect that he made the surrender of the Patent to be the sole consi∣deration of his grant, the falsitie of his recital is not material, for the Iudges ought to take it to be a Motive to the King in his Grant, which he did not ex∣press to be a Motive, especially if he express another Motive, and so in our case: also it should be greatly mischievous to Hitchmore, if this falsitie of the recital should prejudice him, for by intendment it is not in his power to inform the King of this lease, which was made by Burwel to Wilkinson, because he is a stranger unto it, and also the lease is not upon Record, and therefore Hitchmore is not bound to take notice of it; see temps H. 8. Brook, Action upon the case &c.

and also the lease here made by Burwel to Wilkinson is to have continuance but for 8. years after the time of the commencement of the new lease made to Hitch∣more, and so the King then shall have it liable to his rent newly reserved, and so in these circumstances our case differs in matter of prejudice, from Barwicks case Cook lib. 5. for there the Kings Lessee made divers under Lessees for all his Term, and after he himself by fraud accepted a new lease of all rendring rent, which new lease was in consideration expresly of a surrender of the first demise, and of all the estate &c. and this lease was there void, and so the diversitie ap∣pears, also in 18. Eliz. Dyer 352. where the deceipt to the Queen was in point of express consideration, and yet the Lord Dyer said, that in that case the grant was not void, , and then much more in our case; but admitting that the lease should not be good, notwithstanding this false recital, yet it hath been objected, that the consideration is not performed according to the Kings intention, for the words of the lease are, know yee now, aswel for a fine of 30 l. as for that, that Hitchmore had assumed to repair the Mills at his costs and charges &c. and that here the said Hitchmore had not assumed by Record, so that the King may have any remedy against him, for his not repairing, and that the contract is no assurance: it seems to me that the words, for that, that he assumed, and the ex∣press Covenant was sufficient to satisfie the intent of the Consideration, for the words are, the words of the King, and of the Patentee, also in judgement of Law, and therefore Pasch 7. Iac the Lord Evers and Stricklands case was ad∣judged, the Lord Evers had made a lease by Patent, in which these words were contained, viz. and the aforesaid Lessee shall repair the aforesaid Tenement, and that after the reversion was granted to the Lord Evers, and it was adjudged, that the Lord Evers should have a Covenant against the Lessee, and this was in the Kings Bench, Pasch. 7. Iac. and so here for that he had assumed upon himself, it is an accord sufficient to testifie his promise, whereupon the King may have remedy to compel a reparation to be made, and although that the words are not personal∣ly spoken by the Lessee, yet he shall be bound to perform them, as it is in 38. E. 3. fo. 8. if one takes benefit by a lease which he never sealed unto, yet he shall be bound to a nomine penae therein contained, and besides here is an express Co∣venant, and therefore, &c. Thirdly, it hath been objected, that the estate is conditional by these words, he hath assumed to repaire, which con∣dition is not performed, and so the lease made to Hitchmore void, and 38. H. 6.34. and 35. hath been vouched in proofe, which book I do agree, for there the King had no other remedy to have his intent performed, and also the words there, are ad intentionem doth not make the estate conditional, and he vouched Brook condition 96. and 43. E. 3.34. and Perkins 144. that if the Queen give land, and that the Donee should not Amortize, that makes not the estate conditi∣onal for the Amortizing, and so if a man make a feofment to A. that he should pay 10. l. and that R. may enter for non-payment, yet this maketh not a Condition, the reason is, because the first words leaves it to the libertie of the feoffee, and the words after shall not be construed to make it conditional, but I agreed the case put in Sir Thomas Wrothes case in Plowden, Pro eo quod relaxabit, that this makes a condition if it be not performed, because it is of a thing, futurely to be done, or Executory, and the King had no other remedy; also in our case the circumstances manifest, that the Kings intent was not to make a conditional estate upon this lease, for he accepted an express Covenant for the requiring, and he vouched the Lord Cromwels case, in Cook lib. 2. fo. 72. and he said, that if here the lease had been made to Hitchmore, in respect he had agreed to in∣crease his rent, and further had a clause of distress for the rent, it shall not be in∣tended, that the King in such case purposed to make the lease conditional, if the increase be not paid, because he had provided himselfe a distress, wherein although that the King had no more remedy, then by the Law he should have had without these words, yet the words manifest his intent

to have no other remedy but the distresse, see 7. E. 6. fo. 79. and 3. E. 6. Dyer, Non licebit alienare makes no condition in the case of the King without the words subpaena foris facturae, and he vouched, 4. Ma. Dyer 138. the Countesse of Sur∣reyes case, and also 18. Eliz. Dyer 348. which as he said, was one Greens case, where it was adjudged. that if the King provide himself of another remedy, the words by reason of any implications shall never be construed to be conditionall, and so was the opinion of Manwood and Harper in Wellock and Hamonds case cited in Barrastons case, Cook lib. 3. and 31, E. 1. Voucher 141. A man made a Feoffement with warranty against all people rendring rent, and further willed that if the Feoffee could not enjoy the land, that he should pay no rent, here the words subsequent take away the force of a recovery in value, which the warranty otherwise would have given, and so here the King had ap∣pointed the remedy which he intended to have, and therefore it shall not be constru∣ed to be conditionall, because the consideration intended is executed, viz. that he hath assumed, &c. Dyer 76. and 44. Eliz. in the Kings Bench, Sir William Lees case, in consideration that he had assumed to make a release another promi∣sed to pay him 10 l. an action may be brought for the 10 l. without averment of ma∣king the release, because the consideration is a thing executed, viz. the Assumpsit, &c. but if Executory, then the Grant is conditionall, as 9. E. 4.19. & 15. E. 4.9. If an Annuity be granted pro concilio impendendo, this makes the Grant conditi∣onall, and void for not giving counsell, but otherwise it is if it be pro consilio im∣penso, 4. But admitting that here it was conditionall, yet the Queen cannot avoid it without Office, and so the Plaintiff had no title to enter for an avoidance which was before his grant, and so the lease is in esse at the time of the Grant made to the Plaintiff, your Grant is without recitall thereof, and therefore is void, see Knights case Coo. lib. 5. If there be a condition to re-enter for non-pay∣ment, an Office ought to be found, but if it be upon condition to cease for non∣payment, then it is void to the King without Office, as it was agreed in this Court in Sir Moyle Finches case, and he vouched Cook lib. 1. Altonwoods case, to prove that the lease ought to be recited in the Grant of the reversion, or future interest, and here although there be a non abstante in your Patent, this doth not aid you, because it is not found in the speciall Verdict: Also for another cause the Plaintif shall not have judgement here, for it is not found that the Queen died seised, neither that it came to the King that now is, and so it cannot come to the Plaintiff, and although a fee-simple shall be intended to continue in the same per∣son, yet without shewing it shall not be intended to come to the heir, 7. H. 7. 3. and so he prayed judgement for the Defendant. Tanfield chief Baron said, that the case here is by Verdict, & therefore we ought to intend such circumstances, if they be not expressed to the contrary: also the seisin of the Queen is shewed to be in Jure Coronae, and therefore the intendment that it may be devised by disseisin, or abatement between common persons holdeth not here.

Carew against Braughton Mich. 7. Jacobi in the Exchequer.

THomas Carew Exequetor of William Carew brought debt against Morgan Broughton Sherif of the County of Cardigan, and the case was that John Wyner was in execution upon a Iudgement for William Carew, and that after William Carew dyed, and that John Wyner brought an Audita querela against Carew, Executor of William Carew, and upon that Writ he had a ve∣nire facias against Thomas Carew, and thereupon (as the Stat. apoints of 11. H. 6. cap. 10.) he put in baile by recogni-zance in the Chancery to the said Thomas Carew, and one of the parties for his baile was Thomas Wyner, and after upon the Audita Quaerela, Iudgment was given against the said Wyner, and a Scire facias awarded & issued against Thomas Wyner

as Bail, and after the said Thomas Winer was in execution upon this Recog∣nizance as Bail to the said Thomas Carew, and the said Morgan Broughton being Sheriff, suffered him to escape, upon which escape Thomas Carew brought debt against the Sherif in the debet and detinet, and had a verdict to recover, and now in arrest of judgement it was moved by Jefferies that the action ought to be brought in the detinet only, and he said that if an Action be brought as Ex∣ecutor, this alwaies ought to be in the detinet only, and he vouched Hitch∣cock and Browns case remembred at the end of Hargraves case, lib. 5. where the case was, that one Anthony Brown Executor brought debt against one Lister, and that Lister being in execution, the wife entermarried, the said Lister escaped, the Husband and Wife brought debt for his escape in the debet and detinet, and there it was resolved that it ought to be in the detinet only, and so here, and see the custome to plead mentions, that the Recognizance acknowledged was to the use of the Executor: and not to the use of Thomas Carew by his name, but Wild of the Inner Temple prayed judgement, and said that the Action is well brought in the debet and detinet, and he vouched 9. H. 6. and 20. H. 6. if an Executor recover, and after upon the Iudgement he brings debt, it ought to be in the de∣tinet, but if an Executor sels goods of the Testator, and takes an Obligation in his name as Executor, yet here the Action upon this Obligation ought to be in the debet and detinet, because it is upon his own contract, and 1. E. 3. Brooke Executor pla. 287. although it appears there, and so by 9. H. 6. fo. 11. That is good either way, and 41. E. 3. Brook pla. 545. that if a debt be brought against the Executor upon a contract made by them, it ought to be in the debet and detinet, or otherwise the Writ shall abate, and as 9. H. 6. is at his pleasure to name him Executor or not, and therefore &c. Snig the second Baron, if the Executors bring an Action of goods carried away in the life of the Testator &c. and hath judgement to recover 20 l. and dammages for them, and upon this judgement he brings debt, this shall be in the detinet, Altham 3. Baron, if an Executor sells the goods of the Testator, and an Obligation is made to him for the money for which they were sold, without doubt this action shall be in the debet and detinet, for the action concerns him in his person, and so if he with his own money redeem goods which was pawned by the Testator, &c. and the Stat. of the 11. H. 6. cap. 10. is that upon an Audita Querela the party who sueth it shall put in Bond to the party, &c. and the Testator is not party at the time of this Audita Querela, but Thomas Crew who is the Executor, and it is not as a Proces of execution pursuant, &c. but is a new thing, and so for his opinion sud∣denly it is good in the debet and detinet. Bromley the 4. Baron seemed cleer, that if a Bond be made to an Executor upon a simple Contract made with him for the goods of Testator, there the action ought to be brought in the debet and detinet, but this account is conceived upon a dependency of a duty to the Testa∣tor, and therefore it ought to be detinet only. Tanfield chief Baron, the case is doubtfull, and therefore it is good to be advised, but for this time it seemeth there is a diversity where the Recognizance is Legally forced, and where it is vo∣luntary, for in our case the Law compels this Recognizance upon the suite which the Executor prosecureth as Executor, &c. and for the Testator, and there it ought to have a resemblance of the Regionall debt, and although that the Statute appoints that the sayl shall be to the party, as Altham Baron remembred, yet here as the pleading purports, the Bayl is to the aforesaid Executor, which implies a le∣gall dependency upon the first suit. Then it hath been granted, and the Law is so, that if an Executor recover a debt, which was due to the Testator, and hath judgement for it, now if you will have an action upon this judgement, this ought to be in the detinet, because it is a legall pursuance of a thing given to the Testator, and not voluntary as a bond for further security or assurance, and so here the Bayl being pursuant and compulsory, but by 5. E. 3. if it be volun∣tary, then it ought to be put in the Kings Bench to an Executor which is to be

resembled to our case, if an Executor bring debt upon a Bayl, it ought to be as Executor, and not as I. S. cleerely: Altham the Bayl in the Kings Bench is upon the originall suit, and so it is not here, wherefore, &c. to which it was not an∣swered, but for that matter it was adjourned, see H. 6. in the Kings Bench, if a Feme, &c. take Husband, and one of the Debtors of the Testator promise the husband if he will forbear his suite to pay the debt, if the Husband will commence his action upon this promise, it ought to be in the name of his Wife also, because the action pursueth the Originall debt. Williams contr. it was agreed that if the Law were such, that the Action ought to be in the detinet only, then the bringing of it in the debet and detinet is such a Ieofaile as is not aided by the Sta∣tute of 18. Eliz. Nichols case, and Chamberlains case. Cook lib. 5. Tanfield chief Baron said in this case, that it is proper that the Action ought to be brought in the detinet only, but as our case is, here is no issue joyned, because here is not a negative, and an affirmative, for the declaration is, that he oweth and de∣taineth, and the Bar whereupon the issue is joyned is, that he oweth not, so where if his Action ought to be in the detinet, then there is not any N••gative, and so no issue, which was not denyed: at another day they agreed that the action ought to have bin in the detinet only, and therefore judgement was given that the Plaintif take nothing by his bill.

Sir Henry Browns case touching the Countesse of Pembrook.

SIR Henry Browns case, wherein Hawkins and Moore were parties, was this, the Plaintif declared of an ejectment of the Mannor of Kiddington, D••le, & Sale, and doth not mention them to be adjacent to any Ville, and also of an 100. Acres of Land lying in the same Ville of S. and that upon not guilty pleaded, the Iury at the Assises at Oxon were ready, and then the Defendant pleaded, that the Plaintif after the last continuance had entred into a Close called Well Close parcell of the Tenements mentioned with conclusion, and this in the Declaration he is ready to aver, and demanded judgement if it, &c. and this was before Yelve∣ton Iudge of Nisi Prius there, and now the Plea here was debated: And 1. in this case it was upon conference with all the Iudges allowed, that this plea may be pleaded at the Assises well enough, and the Iudge there accepting of it, had done well, but as Tanfield chief Baron said, the Iudges may allow it or not, for if they perceive that it is Dilatory they may refuse it, for it is in their discretion, and therefore, &c. But by Dodderidge the Kings Serjeant, the Iudge of Nisi prius is not Iudge thereof, if it be well pleaded or not, but is to give day to the Parties in Court where the Suit depends to maintain this Plea, for he is only appointed Iudge to take the issué, and upon such Plea he ought to discharge the Iury of the matter in issue, and record the Plea, and this is all his duty, and by him in this case here is a Discontinuance, for the parties have no day given upon the Roll as it ought to be, for the day in bank in judgement of Law is all one with the day of Nisi prius, and this is of course given to the Parties to hear Iudge∣ment only concerning the matter in issue, and here is other matter, and there∣fore the Iudge, &c. Nota, that in all Cases where a thing is pleaded triable before other Iudges, the Iudge before whom it depents ought to give day to the Par∣ties to be before the Iudges where the matter is tryable, 12. E. 3. Voucher 115. and Title Day, 25. and 34. and Assise pla. 14. a Lord demands Cognizance of Pleas, day ought to be given to the Franchises, or otherwise it is a discontinu∣ance of the Nisi prius, for there ought to be a speciall day for the parties here to hear judgment in this Plea, 10. H. 7. fo. 26. so if at the Nisi prius a protection be cast, the Iudges shall give day to the Parties in Bank to hear judgment, if this protecti∣on shalve allowed or not, for the Iudg of Nisi prius is no Iudg therof: Also the Iudg in this case ought to have discharged y^e Iury & it appears not here y^t he had done so, &

therefore upon the whole matter it is a discontinuance, but admitting that here was no discontinuance, it seemeth that the plea was good; and I agree, that in all cases of Pleas issuable, the plea ought to be expresly shewed; or that which Tantamounts, and here is shewed that which Tantamounts, for when the Plan∣tiffe in his Action had shewed the names of the Mannors, and the Towns in which the acres lies, then the Venue to try it for every parcel shall come de vici∣neto from all together, and by consequence it is reasonable, that the Venue for the trial of one particular to be parcel, or not parcel shall come from all, for if the plea in this case were, that the Plantiff hath entred into the premises, this had been good, and then if it be good for the general, it seemeth it should be good for every particular; also it is clear that two may be parcel of all the three Mannors, as in this case it is admitted to be parcel of all the premises by the demurrer if so &c. Coventry, the plea here is not good, for the plea is to the writ, and the con∣clusion ought to be pursuant to the premises of the plea, or otherwise the plea is not good 36. H. 6. if a man plead to the writ, and conclude to the Action it is e∣vil 20. Eliz. Dyer 361. also the plea is not good, because it is not shewed, where the land lies, wherein the entrie is alledged, and therefore if the Plantiffe had denied it, then is there no certain place, from whence the Venue should come, &c. Walter of the Inner Temple, it seemeth that the plea is good. First, this plea although it is but to the writ, yet it is peremptory as other pleas to writs are: see l. 5. E. 4. fol.—as to the conclusion of the plea, it is but matter of form, which the Clark ought to amend, and therefore upon your general demurrer, you shall not take advantage of it, and by the Court, this is but matter of form, and not being alledged for one of the special causes agreed, that notwithstanding the de∣murrer be special, yet the Court ought to apply the conclusion alwayes as the matter of pleading will bear it, and therefore if a man plead to the Iurisdiction of the Court, and demand judgement of the writ, yet it is good by Newton 7. H. 6. for if the Bar be good, the writ is not maintainable, and it was said by Pop∣ham in a case in the Kings Bench 34. Eliz. that one, &c. had two issues in one plea.

• First, if one thing be once repeated in a plea, repetition thereof will sup∣plie all the residue for avoiding infiniteness in repetitions.
• Secondly, one &c. will serve to supplie the defect in matter of form as here, and as to the Objection that the plea is not good, because no certaintie is shewed where the entrie was; it seems to me the plea therein is good, because here is no need in our case to men∣tion the certainty in the Declaration, for here by our plea we offer two things issu∣able, viz. the entrie, or not entrie.

Secondly, if it be parcel of the premises, or not, and when divers things issuable are specified, it is not necessary to shew the place of any, for it is time enough to shew it in the rejoynder. 3. H. 7.11.3. H. 6.8.41. E. 3.8.10. H. 6.1.14. H. 6.31. And therefore it was agreed in the Kings Bench, that if one pleads in Bar divers matters issuable, the Re∣plication ought not to take issue upon any of them, but leave it to the rejoynder to the intent, that the place may be shewed therein, and so here. Secondly, here a place is sufficiently shewed by awarding of a venire facias, for it is certain e∣nough to shew it to be parcel of the Mannors, as it was resolved in Bailies case Trin. 7. Iac. in the Court of Wards, then by the same reason it is good enough, to shew it to be parcel of all the three Mannors, for the Venue shall come from all, as it shall be to trie the issue of all, and by the demurrer here it is admitted to be parcel of all, and therefore, &c. Thirdly, he said, that the omission of the place is but matter of form, and such a thing is within the Statute of 27. Eliz. and ought to be specially set down, or otherwise the partie who demurreth shall take no advantage thereof, and to prove that it is but matter of form, he vouched the case of Hall and Goodwin in the Kings Beuch Hill. 31. Eliz. and he said, that a Replication makes not the plea good, which is evil in matter of substance, and yet a Replication made to a Bar which wanteth a place, maketh the plea good, which proveth it to be but form: also he vouched the case of 34. H. 6.2. in debt

the Defendant pleads the receipt of parcel hanging the writ, and 34. Eliz. in the Kings Bench, between Noy and Midldeton, such a plea was in Bar. Stephens, the plea is not good in matter, for the place where the entrie was made after the last continuance, ought to be shewed, for alwayes the most certainty ought to be observed for the Venue to arise, as 6. H. 7. if Trespass be brought upon the Statute of R. 2. for entring into the Mannor of D. in D. the Venue shall come from the Ville, and so here if the place be not parcel of any Mannors, yet if it lieth in any Towns mentioned in the Declaration, the Venue shall come from the Ville, and not from the Mannor, 32. H. 6.15. three several places are men∣tioned, and one pleaded a deed dated at the place aforesaid, it is not good: also here it seemeth, if the party will plead, and not demur, the want of place ought to be shewed in the rejoynder, as it hath been conceived on the other side, but if he will not replie, but demur upon the Bar, the plea in Bar is not good: Trin. 40. Eliz. in B. R. Rot. 1023. an Action of Covenant was brought by a Bishop of a Lessee, and no place alledged where the assignment was made, and a demurrer thereupon, and adjudged that the plea was not good, and there it was also agreed, that it was not matter of form, and so here: see after.

Tanfield chief Baron excepted to the form of an entrie for the King which was, that Postea the Iustices of Assise Deliberaverunt Tenorem placiti, &c. for by him the Presidents in the Kings Bench are, quod deliberaverunt recor∣dum praedictum, which as he thought was the best, but after upon the view of a President shewed, where an exception was taken in Baron Manwoods case, up∣on a writ of error in the Exchequer Chamber after judgement given here, and the entrie then allowed to be good, and upon the view also of divers Presidents shewed by Turner Master of the pleas, the chief Baron and all the Court agreed, and resolved, that the entrie of Tenorem placiti, or Tenorem recordi, is as good or better, then recordum praedictum, &c. and therefore nothing was spo∣ken to that exception: see the President of pleading in Stradling and Morgans case Plowden, where it is Tenorem placiti.

Sir Anthony Ashleys case.

IT was agreed by all the Court in Sir Anthony Ashleys case, that if the King be intitled to the profits by an outlawry, and after B. assigns a debt to the King, and the King had granted the profits which accrued by the outlawry to Ashley, yet the lands of Ashley may be extended for this debt, for the King had no interest in the land, but only the profits for the outlawry, and therefore it may be extended for debt, per Curiam, quaere, if so for a common person.