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.

MICHAELMAS 3 Jac. in the EXCHEQƲER.

Bret against Johnson.

IN an information for the King by the Attorney General against Sir Robert Iohnson for entrie into a house, and Close in Buckingham Town, called the Parsonage Close, in February 4. Iac. upon not guiltie pleaded a special verdict was found to this effect: that Queen Elizabeth was seised in fee, in right of her Crown of the late Prebends of Sutton Bucking∣ham, Horton, and Hordley in the Countie of Buck, where∣of the place where &c. is parcel, and she 20 Februarie 11. Eliz. granted to Hen∣ry Seymor Lord Seymor the said Prebends for life rendring 11. s. 4. for rent, and the Iurors say, that these Letters Patents, by the command of the said Lord Seymor were restored to be cancelled; and he being seised pro ut lex postulat, Queen Eliz. 21. Mar. 37. Eliz. reciting the former Patent, Quas quidem litte∣ras patentes, et totum jus, statum, titulum, terminum et interesse de et in prae∣missis praefatus dominus Seymor modo habens, et gaudens surfum rediddit et restituit cancellandum, to this intention nevertheless that we should make to him another patent, which surrender we accepted of by these presents; she by her pa∣tent under the great Seal aswell in consideration of the said surrender, as for other causes and considerations, demised and granted to the said Lord Seymor the said foure Prebends for his life, the remainder to Anthony Wingfield for life, the re∣mainder to Robert Iohnson for life rendring 90 l. 3 s. 3. d. for rent, and they found that there was not any actual surrender, or cancellation of the said Letters Patents of 11. Eliz. but restitut. ad cancellandum as before the making, and ac∣ceptance of the second Patent of 37. Eliz. and they found that there was not any Vacat made upon the inrolment of the Patent of 11. Eliz. and they found that 10. April 37. Eliz. Anthony Wingfield, and Iohnson granted to the Lord Sey∣mor for 90. years to commence after his death, or forfeiture of his estate, if Wing∣field, or Iohnson, or one of them should so long live, and 20. April the same year the Lord Henry Seymor granted to Sir Robert Iohnson for 60. years to begin after the death of the said Seymor, rendring 400. l. rent to him his Execu∣tors or assignes; the Lord Seymor died 4. Iac. and Sir Robert Iohnson entred, upon which entrie this information was brought: nay, that the Defendant is guil∣tie, and he divided the case into two points. First, if there be any actual surrender of the patent of 11. Eliz. because there is not any record thereof, and the King cannot take by bargain or contract if there be not a record of it, as appears by 5. E. 4. and 7. E. 4.6. and Plowden in the Dutchy of Lancasters case, for as it is there said, it agrees with the Majestie of the King to have a record of things

made by him,* 1.1 or to him, and if a grant is pleaded to be made to the King, it is good to say quod non habetur tale Recordum, and here is no record, but a me∣morandum made upon it, for otherwise leases made by Abbots before the dissolu∣tion shall be said to be of record, because after the dissolution they were all put in the Tower amongst the records, but questionless those leases are not of record, be∣cause there is not any Memorandum made upon them: also in the Lord Latimers case 12. H. 7. in Kelloway, where Baron and feme seised in right of the feme in fee granted to the King, this is not good if the deed be not inrolled, for there they of the other side would have concluded the Tenant to say the contrary, but that the deed was inrolled, and so by way of admittance confess that a grant to the King is not good, if the deed be not inrolled: 3. Eliz. Dyer the Lord Dacres surren∣dred a patent of an office granted to him before Sir Nicholas Hare Master of the Rolls, but the surrender was not recorded, nor the patent Cancelled, nor a Va∣cat entred upon the inrolment, this is void, and shall not be aided now after the death of Sir Nicholas Hare per optimam opinionem; in Kemps case Dyer 195. but it will be said that it appears not there, that the surrender was made in Chancery, and therefore differs from our case; but see 19. Eliz. Dyer 355. which is direct in the point, where an exchange of land was with E. 6. by deed acknow∣ledged to be inrolled &c. but not inrolled, it cannot after nor be inrolled, nor vest any interest in the Queen either as heir, or Purchasor, so hereby it appears that before inrolment, an estate vests not in the King, and he said that he had heard Popham late chief Iustice say, that the opinion of the Iudges was, that in this case nothing vests in the King until inrolment, and for that there was a private Act made in 39. Eliz. to relieve this particular case, so the Memorandum makes the record, and not the delivery of the patent to be cancelled, but the opinion of Davers in 37. H. 6.10. may be objected against me, where he saith, that if a man make a feofment to the King, and deliver the deed in the Exchequer, or at the Kings Coffers, it is good without inrolment, which by the Court is intended for goods, and not to a feofment made to the King, for this is only the opinion of Davers, which I denie to be law, and also all this may be admitted for law, and yet prove nothing, for when the partie surrenders to the King, and delivers the deed to be inrolled, so that he had done all which in him is to pass the land to the King, then it may aptly be said in common speech, that the right of the land is in the King: because he of right ought to have it after inrolment, although he had not the propertie of the land before the Deed be inrolled, then if nothing vest in the Queen in the principal case before the patent made in 37. Eliz. the words sub∣sequent in the patent will not help the matter, viz. quam quidem sursum redditi∣onem acceptamus per praesentes, because the King had taken nothing before, and the recital in the patent concludes not the Queen; it hath been said that the not making of a Memorandum is the fault of the Clark, and this shall not prejudice the partie in so great a mischief, but I answer that the same mischief will insue, where a man sells land by indenture, and delivers it to the Clark to be inrolled, and he inrols it not within 6. moneths, nothing shall pass by the sale, yet this is only the fáult of the Clark, but in this case he may have his action upon the case against the Clark, if so it be that he had paid all his fees, the fame law in the principal case, but admitting that, yet great mischief will insue if it be so that the estate shall pass to the King before inrolment, for then the estate and interest shall be tried by the Countrie, and not by the record, and then also in what place should a man search to finde the Kings estate, and perhaps for want of knowledge thereof every grant of the King will be avoided, and this would be a great mischief to the subjects, but admitting that this should be a good surrender without a Memorandum, or Vacat, yet this is not shewed in this case, for it appears not here that his intent was to sur∣render it, for although he deliver up his Letters patents, yet his estate remaines; and then the consideration of the patent in 37. Eliz. being of a surrender of the first patent, and also of a surrender of the estate, if the estate be not surrendred as well

as the patent, the consideration is for that false, and then the patent is void, and to p••ove that the estate remains although that the patent be surrendred, it appears by Fisher 12. H. 7.12. where Tenant in tail of the gift of the King loses his let∣ters patents, his heir is not at a mischief, for he may have a Constat, and this shall be good in evidence, but he cannot plead it, and this appears by the Preamble of the Statute of 13. Eliz. cap. 6. Dean and Chapter Lease land, this shall be by Deed, and in this case although that the lessee redeliver his deed, it is no surren∣der of the estate, but he shall not plead it without shewing a Deed of the assent of the Chapter; but he shall give it in evidence, and good, because he had once a D••ed thereof, as it appears by 32. E. 3. Monstrance of Deeds, and it appears by 32. H. 8. Patents Br. 97. that if the Kings Patentee lose his letters Patents, he shall have a Constat, and by 32. H. 8. surender Br. 51. and 35. H. 8. tail: that if the King give in tail, and the Donee surrender his Patent, the tail thereby is not extinct, so although letters Patents are necessary for pleading of the Kings Grant, yet they are not requisite for the essence and continuance of the estate: also it is found that the said Patents were restored to be cancelled per mandatum Do∣mini Seymor, & it is not found what manner of authoritie the Lord S. gave, nor found to whom the letters Patents were delivered, nor at what time, and peradven∣ture they were delivered after the second Patent made, and then is the second Pa∣tent false, because then there was no surrender, and this is one of the reasons put it Kemps case 3. Eliz. 195.

The second point admitting that there is no actual surrender, if notwithstand∣ing that, the Patent of 37. Eliz. be good, and as to that, I say if this Patent be good, it is because the Queen had recited the particular estate; and therefore is not to her damage, or because the second Patent is a surrender in law of the first, and the rather because it appears to be the intention of the Queen, that the accep∣tance should be a surrender by these words, quam quidem sursum redditionem ac∣ceptamus per praesentes; and as to the first reason it seems to me, that the Queen recites this as a particular estate determined, and not as an estate continuing, for by these words modo habens et gaudens it appears that the meaning of the Queen was, that the Lord Seymor had not an estate continuing in the intent of the Queen at the time of the making of the second Patent, but the Lord Chandos case in Coo. 6. fol. 55. seems to impugne me in this opinion, where the King made a gift in tail, and afterward by Patent reciting the former Grant, and also that the Patentee had delivered up the Patent into the Chancerie to be cancelled, by vertue whereof he thought himself to be seised in demeasne as of fee, did grant the lands unto the said Donee in fee, in that case it was adjudged that the reversion did pass unto the Donee, although the words of the reversion were not contained in the Patent: although that the King in that case did think that he granted a po∣ssession, but the reason of that was, that although the Patent was not inrolled, yet by law it should have been surrendred unto the King, nevertheless because that was the collection of the King, and not the suggestion of the partie that the King was seised by vertue &c. therefore the collection being false shall not make the Pa∣tent void, for all there that came of the suggestion of the partie is true, but our case is otherwise, for here the intention of the King was, that he had the land in possession when he had made the grant, and in truth he had but a reversion: also if the Patent should be good, great prejudice would or might ensue to the Queen there∣by, for put the case that the Queen had annexed a condition to this lease, or that she had reserved a greater rent upon it, this condition, or increasing of the rent was the cause that the Queen had made this grant, and that if the second grant should be good, and the first not determined, that the Grantee may claim his first estate, and so defeat the Queen of her rent, and of his condition to have benefit of either, and this was the reason why the Patent was adjudged void in the case of Barwick Coo. lib. 5. fo. 94. because some parcels were not surrendred to the Queen, and therefore they were not subject to conditions, or rent reserved upon

the second Patent: and for a second reason he argued that the acceptance of the second Patent is not a surrender in Law of the first Patent, because the first Pa∣tent is meerly void, as it appears in Fulmerston and Stewards case Plowden 107. that the reason why the taking of a second lease shall be a surrender of the for∣mer is, because both the estates cannot be in one and the same Parson at one and the same time, but this reason holds not in our case, because no estate passeth by the second Patent in regard it is void, and therefore this case may be resembled unto the last case in 23. Eliz. Dyer, where a man taking a second benefice incom∣patible without dispensation, doth not make the first benefice void by the Statute against Pluralities, because he never was a lawful Parson of the second benefice in respect the never subscribed to the Articles according to 13. Eliz. cap. 12. and in Harries and Wings case the second Patent was void: but a third reason was, he thought that these words Quam quidem sursum redditionem acceptamus have not aided this Grant, for the second Patent is made in consideration of a surren∣der made by the Patentee, and therefore there ought to be a good surrender made by him, or otherwise the consideration is false, for the King in consideration of a surrender made doth grant lands where in facto there was no surrender, as if the King grant black acre in consideration of a surrender of white acre, which in facto was not done, this grant is void: also this appears by these words modo habens et gaudens sursum reddidit et restituit &c. that the intention of the Queen was, that the Lord Seymor had surrendred before, and that he had no estate at this time of the making of the grant, for these words modo habens et gaudens ought to be interpreted according to the rules of Grammar, and for that in 9. H. 7.16. b. the Court consulted with Grammarians touching the exposition of Latine words and was by them directed, and he said that this word modo had divers significati∣ons, for this signifieth nuper, interdum, aliquando, but most properly it signi∣fieth nuper, or interdum, modo Paratus e••at, Codrus erit subito, qui modo Craesus erat, modo ad hunc diem &c. there it signifieth the present Tense, or time, but in the principal case, if modo should signifie the present tense, then it would not stand with this word sursum reddidit which is the preter tense, but if here it be construed that modo signifieth the present tense, this may well stand with sursum reddidit, and the meaning of the Queen ought to be taken to be that the Queen was deceived, and the Patent void, although in the principal case here was a good surrender before the second patent, yet until agreement nothing vests in the Queen, and therefore if a man pleads a surrender made by the lessee to him in reversion, he ought to plead an agreement to this surrender, and 13. H. 4. that this is not in him before agreement and entrie, and 32. E. 3. Bar 262. that un∣til agreement nothing vests in him; it was lately adjudged in the Common Pleas, where an incumbent had resigned yet until the ordinary did agree unto it, he re∣mained an incumbent still, and for that in asmuch as the Queen had not agreed before the second Patent made, nothing vesteth in her till then, and then she was deceived, for she thought that she was in possession thereof at the time of the grant, and therefore he concluded that he conceived the Patent was void. Brock to the contrary, and he divided the case into three points.

• First, whether here be an actual surrender found to be made in Law.
• Secondly, if the acceptance of the second lease be good, or if the Queen reciting the estate, and that he had surren∣dred which the Queen had accepted, and that in consideration thereof she made the Grant, whether this be made good although there be no actual surrender.
• Third∣ly, admit that here he no actual surrender in facto, whether this grant be aided by the Statute of 43. Eliz. cap. 1. but first before he would enter into his argu∣ment, he said that he would wash away the Rubs cast in his way to make his way the smoother, and first where it hath been said, that if the Queen should take by contract, or bargain without record that great mischief would insue, for by that means the Queens title should be tried by the Countrie: and in proof thereof he cited the Lord Latimers case in 12. H. 7.10, 11. which he thought to be no autho∣ritie

• for that purpose, for there the opinion of the Court was delivered concerning the shewing forth of Letters Patents, but not concerning matter of inrolment, also the case was of an estate of inheritance to be conveyed from the King, but the case now in question is but for an estate for life, which may in law more easily be deter∣mined than an estate of inheritance conveyed: also the case of 19. Eliz. Dyer 335. cited of the other part proves not this case, for first the question was not there whe∣ther the King took any thing without inrolment, but whether the Deed may be inrolled in the time of another King.

Secondly, if this be confessed that the King there should take nothing without inrolment, yet this is not like to our case, for here this is but to merge a particular estate which differs much from the case of convey∣ing of an inheritance: also this is confessed if there had been a Memorandum made in the Margent, then the surrender had been good: and the want thereof is the laches of the Clark, and then if it should not be a surrender before the Memo∣randum made, the Clark should make the surrender, and not the partie: and as to the Book of 37. H. 6. it is not answered, for to say, that the King hath no right to the thing granted before inrolment, but that he hath the propertie, that cannot be: and to that which hath been objected, that there doth not appear any intention of the surrender, because that although the Patents are surrendred, the estate remained, the Book of 32. E. 3. Monstrance of faith 178. proveth no∣thing, for there it is said, that a man may plead, that a Dean and Chapter did not lease modo et forma without shewing any Deed, for there this pleading is not to devest any thing out of &c. and also it appears in the principal case, that his intent was to surrender, for the Iury do finde that the Letters Patents were re∣stored by the command of the Lord Seymor to be cancelled: and to that which hath been objected, if the second Patent should be good; that the Queen might lose her Rent, or condition, because the first lease hath his continuance; to that I give answer, that the first lease hath not his continuance, and therefore no loss can grow to the Queen: and to that which hath been objected, that the Queen is deceived, it appears by these words modo habens &c. restituit &c. that the intention of the Queen was, that the Lord Seymor had surrendred his estate before, and that he now had nothing, because that the word modo being joyned with the word reddidit signifieth the time past, but as to that it seems to me, that although (modo) poe∣tica licentia in the strict construction of Grammer may signifie the time past, yet the signification thereof shall not be so taken in the letters Patents, for there it shall be taken in common construction, and not to the deceipt of the King, and therefore in the Dean and Chapter of Bristols case 7. E. 6. Dyer the words are nuper in Tenura I. S. et modo in Tenura A. B. there nuper is taken for the time past, but modo for the present time: and in 11. H. 7. Rogerum Townesend modo militem is to be intended that he is now Knight, and not that he was a Knight in time past, and not now; also it is so to be observed here, that these words (habens et gaudens) are annexed to this word modo, both which are in the present time, and restituit comes afterwards, and so modo is not annexed to restituit, but unto habens et gaudens, also although the word shall be referred unto restituit, yet all may well stand together, for restituit may be referred unto the time present, as siquae fuerint in 35. H. 6.11. and to that which hath been objected, that until the Queen agrees unto the surrender, the estate is not in the Queen, he thought that where Tenant for life surrenders before agreement, he in the reversion is Tenant to the Praecipe, although he shall not maintain a Tres∣pass before entrie, for by 21. H. 7.12. it appeareth that an estate for life may be determined aswel by word as by surrender, so in 9. H. 7. where the Tenant dies without heir, the freehold is immediately in the Lord, but yet he shall not have an action of Trespas before entrie: now as to the first point he conceived it to be an actual surrender although there be no Vacat made, nor any Memorandum, and to examine it he did relate what Acts might make a surrender, and to that pur∣pose he said, that words being used which do prove an assent of the Tenant, that

he in reversion shall have an estate, that shall be a surrender without express words of a surrender, for a man may surrender by these words Remisit, or resignavit, for the words are not material, if so there be substance, as in 40. E. 3. placito 14. and 40. Assises pl. 16. if a lessee for life saith to his lessor, that you shall enter, and I will that you shall have this land, this is a good surrender. So in 28. H. 8. Dyer 33. if a Termor agree that he in the reversion shall make a feofment, that is a surrender, so in 8. Eliz. Dyer 251, 252. lessee for life is content that he in the reversion shall have the land, and his interest, that is a surrender, but in that case it appeared that a rent was reserved, and an agreement that the lessee should have it againe, if he survived the lessor, and therefore appearing plainly that it was not intended to pass by way of surrender, it was at the last adjudged no surrender, so in 14. H. 8. the Grantee of a Rent did surrender the Deed, and that held to be a good surrender of the Rent: it is daubted in 2. Eliz. Dyer in Sir Maurice Barkleys case 156. if the surrender of the Patent of an Office, unto a master of the Chancerie out of the Court be good without beliverie of the Patent to be cancelled, but that Book proveth nothing, but that a delivery of a Patent to be cancelled shall be a good surrender, though the Patent be not cancelled in facto: it hath been objected, that it matters not what commandment the Lord Seymor did give, nor in what Court the Patents were given up, nor before whom; but to that he said in asmuch as it is found, that the Patents were given up by the command∣ment of the Lo••d Seymor to be cancelled, that being it was by his command, it was his own surrender: also it appears that the letters Patents were under the great Seal of England, which alwayes issueth out of the Chancery, and there∣fore it cannot be cancelled in any other Court, and it shall be intended, that they were given up to be cancelled there, also this word restituit signifieth to restore, and a man cannot restore any thing but where he had it, and he had it out of the Chancery, and therefore it shall not be otherwise intended but to be there restored, so in Baggots Assise 9. E. 4.7. it is pleaded Quod restituit litteras Patentes Cancellandas, and sheweth not to whom, nor where, and it was held to be very good: but it is there pleaded Quod sursum reddidit Patentes Domini Regis, and shewed in special to whom they were surrendred, because it may be to any that hath power at the time of the surrender, but a man cannot restore unto any, but such a one who granted unto him, and therefore needs not shew unto whom he did restore: and these words restituit Cancellandas are no new words, but usually used in surrenders of Patents, as it appears by 9. E. 4.7. and in Altonwoods case Cook lib. 1. and there the not entring of a Vacat doth not hurt, for it was the fault of the Clark: and Sir Maurice Barkleys case in 2. Eliz. 176. cited before doth not question it, that the entring of a Vacat should be material; but the question here is, because he did not deliver them up to be cancelled; in the Lord Darcies case Dyer 195. the jury did think that there was no surrender at all, but the Book-doth not marrant but that there may be a surrender without a Vacat: and he said, that at this time the matter is depending for Saint Savi∣ours in Southwark if it be a good surrender without a Vacat entred, and no o∣pinion as yet given in that case: and where it hath been objected, that there is no actual surrender until that the Queen hath agreed, and 8. and 21. H. 7. cited, that where a man pleads a surrender, he must also plead an agreement, yet because the agreement cannot appear by any Record, that the partie can procure to be made of it, it shall be good, although there be no record made of that agreement; yet in this case, the Queen doth agree, as appears by the words in the second Patent, Quam quidem sursum redditionem acceptamus &c. Secondly, admitting there is no actual surrender in this case, yet if when the Queen did recite the particular estate, and that she had accepted the surrender thereof, and in consideration of it she maketh a grant, whether this second Patent shall be good, and it seemeth that it shall: and therefore it appeareth by 37. H. 6.18. that the taking of a se∣cond lease shall be a surrender of the former: and in Corbets case 11. Eliz. Dyer

208. & 4. Mar. Dyer 140. although the first lease be by deed indented, and the second but by word: and in Ives case Cook lib. 5.11. acceptance of a future lease is a surrender of a lease in possession; and to that purpose is 21. H. 7.14. H. 8.15.31. Assises placito 26. and other Books, and in 3. Eliz. Dyer 200. the King granted a house for years, and after did grant to the Patentee the custody of the house with a fee, and the Patentee accepted the fee, and it is there doubt∣ted it that shall be a surrender of the Term, and the matter was Compounded, but he said that he heard that the opinion of the Iudges was, that the acceptance of the custodie and fee was a surrender of the Term, by that I do infer, that there shall be a surrender by implication aswell where the King is partie, as where a common person only, first, if a surrender be effectual, it is sufficient although it be not formal, because it worketh as much profit to the King, and the surrender in this case was at the same instant that the Queen did Seal the letters Patents, for the estate passeth from the Queen without delivery: and it appears that the intention of the Queen was not to have any actual possession of that, by these words (modo habens et gaudens:) but it hath been objected in as much as this surrender was at an instant, that it should be void; because that in instants the best shall be taken for the King, yet it seemeth to me that it is good, as in the case of 49. E. 3.5. a. a man deviseth Burgage land holden of the King, and dieth with∣out heir, this devise is not good against the King, because the devise. taketh not effect until the instant of the devisors death, and at that instant also doth the title of the King begin by death without heir; and he cited Plowden 108 & 109. in Fusmerstons case, for the exposition of these words (not now in being) within the Statute of Monasteries; and if in that case issue had been taken, whether it had been a surrender or not, it should have been found to be a surrender, because it is a surrender in the law, as it was in Thetfores case in the Common Pleas p. 28. Eliz. Rot. 122. in wast, Baron and Feme Donees in tail make a lease for life, the husband dieth, and the wife disagreeth to the lease, and the issue was, if the husband and wife did lease, and it was found that they did not lease, because now by her disagreement it is become in law not the lease of the wife; Cook lib. 3. Butler and Bakers case accordingly fo. 27. & 28. but if the King be to sustain any loss by the consideration if that were false, then shall it make the Patent void: as it is in 9. H. 6. where the King was deceived in the value, so 18. Eliz. Dyer 352. where there was a loss in esse; but it is contrary where there grows no loss to the King as 26. & 28. H. 8. of a thing passed: because the King is not to have benefit of it, the Lord Chandos case is not answered on the other side, for there the King did intend to have the actual possession where in facto he had not, yet be∣cause that was only a recital and Collection, in the matter in law it doth no hurt, so in the principal case, and so if the King grant a Mannor although he hath but a reversion of it, yet it shall pass without the word reversion 7. Eliz. Dyer 233. and the Kings Patent also shall be so construed, that one part may stand with a∣nother, viz. that the Lord Seymor now having the estate &c. doth restore unto us, &c. the which we do accept &c. as in Sir John Molins case 40. Eliz. Cook 6. Lord, measne, and Tenant, the Tenant was attainted of Treason; and the King did grant the laud, tenendum de nobis &c. suis noftris et aliis cap. domi∣nis feodi illius per servitia inde debita, et de jure consueta. He shall in that case hold of the mesne as the Tenant held before, for if he should hold of the King, the words subsequent would be void; and for that cause such a construction shall be made that all may stand together; now for the third point, admit that the sur∣render is not good, yet it is aided by the Statute of 43. Eliz. cap. 1. which aides all grants and surrenders &c. to or from the Queen: the clauses for conveyances to the Queen are with restraint, but for the conveyances of the Queen there are certain exceptions, our case is within that part of the Statute which relates unto the 25th. year of her Raign, and our case is within the words of the Statute, viz. surrenders, and surrenders within the Statute are such as are surrenders

to a common intent, and therefore where the partie hath done that in him lieth, but some thing is to the perfection of a surrender, that is aided by the Statute: also by this word assurance in the Statute a purchase without deed is not aided, by a good assurance a surrender without deed is aided within the Statute, or else the Statute should serve for little or nothing, the Statute of confirmations of letters Patents hath the same words. That the Statute of 43. Eliz. hath, and upon 18. Eliz. it was resolved in 27. of Eliz. in Husseys case, that if Tenant in tail be and the reversion is granted to Queen Eliz. this is good, and aided by the Sta∣tute, so if a man grant lands to the King, but the Deed is not inrolled, this also is aided by the Statute, and where a grant shall be good at the Common Law by a Commonperson, there the like grant made by the King is made good by the Sta∣tute, and there was a case in the Dutchy Chamber Trin. 37. Eliz. between Ca∣vendish and Bateman, where the Queen did grant Turbary within the Mannor of Lady Meadows within the Countie of Darby unto Bateman for 21. years, Bateman thereof makes a meadow, and afterwards the Queen in consideration of the surrender of the first grant, doth grant the same unto him for 40. years by the name of a meadow, and although he made no surrender, yet by the taking of the grant it was resolved that it was a good surrender, because there it was but of a particular estate, but otherwise if should be of fee, for a fee cannot be surren∣dered by implication: Dodderidge Serjeant of the King, argued that the De∣fendant is guiltie of intrusion: and he divided the case into two parts only, the first whether there be a sufficient consideration at the Common Law, to make the second Patent void, the second point admitting that there is not a sufficient con∣sideration by the rule of the Common Law, whether the defect thereof be aided by the Statute of 43. Eliz. and he argued that the surrender, which the Queen inten∣ded to be the consideration of the grant, was an actual surrender alreadie perfected before the grant, which doth plainly appear to be so as he took it by the word sur∣sum redditionem, and he said that he could not so have that word in the Preter∣perfect Tense, as it would be supplied by an act of the Present Tente as is preten∣ded, viz. that the surrender is to be made by the acceptance of a new grant: and he vouched 35. H. 6. also he thought her to intend an actual surrender for an other reason, viz. for the words nobis sursum reddidit et restituit cancellandum, the which cannot be performed without an actual surrender, for otherwise there is no restoring: and he vouched 18. Eliz. fo. 437. & 43. E. 3. fo. 19. where it is ob∣served, that if a wife do not remain with an Adulterer with her own accord &c. ano∣ther reason, the Queen did intend an actual surrender, because of the words (ea intentione) which implie a surrender to have been actually precedent; another reason was for that hereby the acceptance of the second Patent there is no surren∣der wrought of the former estate in the Law, until after the acceptance of the second letters Patents, and so the Queen deceived in the time: and he vouched the case of Totnes in 40. Eliz. in the Kings Bench, and Savages case in 9. H. 8. Carrels Rep. fo. 195. and here it appeareth, there was no surrender upon re∣cord precedent unto the second grant: also it ought to have been found by a speci∣al verdict. that the second letters Patents were granted at the suit of Seymor, or otherwise the granting of them to him makes no surrender of his former letters Patents, and then it follows that they are not surrendred yet. And where it hath been objected that the Queen useth these words in the second letters Patents, quas quidem litteras patentes praedictus Seymor modo habens et gaudens, and therefore it must be intended she takes notice that the first letters Patents were not yet surrendred, for then she would not say (modo habens et gaudens) he answered that this word modo signifieth the time passed, or the time presently for to pass, and the word habens cannot be taken in a legal sense, no otherwise then the word being is taken in Dockwrais case, 27. H. 8. fo. 19. and so these words modo habens et gaudens, signifie no more but that one he had an estate; also the Queen is deceived in this word acceptamus, for she cannot in the Law be said to

accept of that which by the Law is not vested in her: also he said that an actual surrender ought to be an actual giving up of so much as the Patentees received of her grant, as it appears 14. H. 8.21. E. 3. Brook Prerogative 90.7. E. 6. Dy∣er Sir Maurice Barklies case 2. Eliz. 159. Sir Ralph Sadlers case, that a dupli∣cat is not sufficient if the letters Patents be surrendred and cancelled 3. Eliz. Dy∣er 195. and he said that the surrender which the Queen intended, ought to pass an estate from the partie surrendring which is not so done here: and where it hath been objected that the very delivery in the Court made of the letters Patents is a surrender of them, by the opinion of Davers in 37. H. 6. fo. 10. he said that this book was no Law as it may appear 12. H. 7. fo. 12. Carrels Reports: al∣though in that book also Vavasour agreeth with Davers: and where it hath been objected that here is an actual surrender made, yet the intention of the Queen ought to be observed to make it an effectual surrender, or otherwise though she hath no loss by the surrender that is made, yet is it no effectual surrender, as ap∣pears by 18. Eliz. Dyer 352.. and so also was the case of the Isle of Man: also Sir Henry Seymor did not in this case all that he might have done for the perfect∣ing of this surrender, for he ought to have seen this his surrender recorded, as it appears by the book case of the 11. H. 4. where it appeareth that if I be bound to levie a fine I ought to sue forth a writ of covenant or dedimus potestatem, and do all such other acts as it may make it a good and perfect fine in Law. Secondly, he took it that the Statute of 43. Eliz. did no whit aid this case, for that makes no surrender to the Queen to be a good surrender, but only an actual surrender which here is wanting, and the Statute in no sort extendeth to a surrender in the Law, for the surrender which this Statute intendeth to aid, ought to be a surren∣der conveying and assuring &c. and this surrender in the law conveyeth nothing but only extinguisheth, and for that purpose he put this case, if A. take a new lease of the Queen in 27. by indenture and this is of his own land, this Statute of 43. Eliz. doth not make such a kind of conveyance in the Law, by Estoppel good to vest the land in the Queen by this Estoppel which is a conveyance in the Law, unto the which the Lord chief Baron Tanfield said, insist not upon a labour of that kinde for it is plain enough, because the Queen being partie there can be no Estoppel as to any part in that case, also as to that part of his argument Mr. Walter a∣greed on the other side, and also he said, that if a grant of the Queeen were void at the Common Law for default of want of consideration, this Statute aids not; Walter for the Defendant, and he divided the case into foure points,

• the first whe∣ther the Tenant for life by the Kings guift by surrendring his letters Patents hath also surrendred his estate.
• Secondly, if the surrender in this case made be de∣fective only for want of matter of circumstance as the inrolment &c. whether such defects are saved by the Statute 43. Eliz.
• Thirdly, whether in this case an actual surrender be the consideration meerly which moveth the Queen to grant, or what shall be intended the consideration in this case.
• Fourthly, admitting that an actu∣al surrender is the sole consideration in this case, then whether a Patent shall be adjudg'd void for default of such consideration, for a false consideration doth not avoid a Patent, but a false surmise doth first when the Kings Tenant for life doth sur∣render or give up his Patent (although without deed) yet with such circumstan∣ces as the law requireth, the surrender is good: for although a surrender of letters Patents made by the Kings Tenant in tail will not make estate tail void or deter∣mine, as it appears by the book case of 35. H. 8. title surrender and Cook 6. the Lord Chandos case, yet the bare giving up of the letters Patents by a Tenant for life is a surrender of his estate, so here in this case is some proportion between a Tenant for life of the Queen, and a Tenant for life of a Common person to a∣mount to a surrender, and therefore it appeareth by 43. E. 3. that a Tenant for life may surrender without deed; and without livery and from the land, but a Te∣nant in tail may not do so: also if a Common person hath a rent or other thing which cannot pass but by deed, yet a surrender of such a rent shall be good by a

• bare deliverie up of the deed if he hath but an estate for life in the Rent: and this also, although it be but to the disseissor of the land out of which &c. the same Law, he took it of a particular Tenant for life of years: also 32. H. 8.

Brook Patents 97. it is made a doubt whether the estate tail of the Kings Donee be determined and gone by surrendring of the letters Patent, and he referred that if thought worthy of a doubt whether it should be a good surrender of an estate tail, they would hade held it clearly a surrender for an estate for life: and it was admitted 3. Eli 2. Dyer fo. 193. Mack-Williams case, that if in the principal case if a Vacat or cancellation had been, the surrender had been good actually without question: and Sir Maurice Barkleys case cited on the other part proves the same also, for there it is admitted, that if the letters Patents had been given up, there had been a perfect surrender. And 40. H. 3. fol. 5. Belknap held that a surrender may be by word, which is to be intended by giving up the Patent: and that appears by Rolfs case in Dyer, that a voluntary surrender needs no Conftat: also where it hath been objected that the special verdict in this case hath not found in what Court the surrender was made, he answered, that the Law shall intend it to be made in the same Court from whence the letters Patents did issue, for a surrender cannot be good being made in another Court, and therefore it must needs be intended the same Court: and he vouched 11. Ed. 3. fo. 1. and 18. Eliz. Plinies Case and Covel and Cabels Case in Banco Regis 38. Eliz. wherein a special verdict it was holden that all things necessary for the perfecting of that the Iury hath found to be done, must be necessarily intended concurrent. Secondly, the want of circumstances in a surrender are perfected and supplied by the Statute of 43. Eliz. for although matters of substance are not aided within this Statute, yet matters of circumstances are aided. And he said that all the defects in this Case are mat∣ters of circumstance, and to prove that the defects in this Case are only in cir∣cumstance, he said that there are three principal defects in conveyances which are meerly matters of circumstance and aided within this Statute,

• the first is meerly want of form in a conveyance, and that such a defect is aided, he cited Hussies Case to be adjudged accordingly;
• the second is where words are wanting in a con∣veyance, and that such a conveyance is aided by this Statute, he cited the opi∣nion of Popham and Gawdy in 44. Eliz. in a cause depending in the Chancery:
• the third matter of circumstance is where there is want of some matter concerning the executing of an estate, and that such defect is only matter of circumstance and aided within this Statute he cited Morley and Whartons Case to be adjudged 7. Eliz. in the Common Pleas, that the default of not inrolling is aided by this Statute, and Mack-Williams and Kemps Case cited in Dyer before, proves this to be but matter of circumstance, and for that he thought the surrender in the principal Case wanting nothing but inrolment is aided by this Statute: also in the argument of the second point he shews what defects in conveyances should be accompted matter of substance and so not aided by this Statute of 43. Eliz. and to this purpose he held: that all disabilities of the person in a grant is matter of substance, and so not aided within this Statute; and he cited Twynes Case 32. Eliz. in the Exchequer to be accordingly.

Secondly, he held that the nature of an assurance is not aided by this Statute, and therefore if a man hath power to grant an estate by fine, and he doth it by Deed, this is not aided by the Statute, for this is defective in matter of substance, and he cited Wisemans Case, and Sir Hugh Cholmleys Case in Cook l. 2. also he said if a man give land to the King and his heirs to have ten years after such grant, this is not made good by the Sta∣tute. Thirdly, whereas it may be Collected, that because it is found in the spe∣cial verdict that an actual surrender was the cause which moved the Queen to grant, or that it appears to be the cause, he held that no consideration plainly ap∣peareth but only by relation to a consideration before mentioned, and he said that these words used by the Queen viz. (modo habens et gaudens) shew that the Queen took notice the state was still injoyed notwithstanding the delivery up of the

letters Patents; and therefore it cannot be intended by the verdict that the Queen intended an actual surrender before made for the consideration: but whereas it hath been objected of the other part, that the word modo doth often signifie the time past, and some instances according to Grammatical construction were given in proof thereof; and thereupon they would infer that the Queen by these words modo habens did intend no other but lately having or injoying: to that he gave a double answer; to the first he said, that there was no cause shewed or instance gi∣ven. That modo habens joyned together will signifie a time past, though taken ••everally that may signifie so much, which makes a plain difference betwixt those instances, and this present case. Secondly, admitting in a Grammatical con∣struction they did signifie as the other side would have it, yet the judges ought to adjudge thereof according to the most natural sence of these words in Common understanding, and that so it may be done, he vouched one Talbots Case in 32 Eliz. in Banco Regis, in which after the Iudges had conferred in the Court with divers learned Schollers touching the Grammatical construction of a word used in a Convey ance, they afterwards notwithstanding did wave the Grammatical con∣struction, and adjudged the word to signifie in Law according to the Common received sense of the word, and according to this he vouched 12. H. 8. where the word uterque received the like construction: also he vouched the 20. Eliz. Dyer fol. 262. where it is admitted, that the word modo is to be taken in the present Tense, and to this purpose he also vouched Billings Case in 38. H. 6. and Bo∣zuns Case Coo. lib. 4. and then he concluded that in asmuch as the special ver∣dict had definitively found no consideration, but generally for the consideration a∣bove exprest, he held that the second Patent was good, for a Patent cannot be void, because there is no consideration to move the King to grant, but a Patent may be void as is pretended for a false consideration, which is not in this case, and therefore &c. Fourthly, admitting that the consideration in this Case was for an actual surrender before made, and that in this case no such actual surrender was before made, yet he held that in this Case the second lease is good: notwithstand∣ing the false consideration, for it appears by 37. H. 8. Brook title patents 100. that a Patent shall never be void for a false consideration, but by reason of a false surmise it may; but he confessed this difference was generally denied, because a Patent shall be void by reason of a false consideration, but he said that the diffe∣rences were infinite also upon this ground, for some take a difference where a con∣sideration is real, and where it is personal, and they hold that a real consideration being false shall not avoid the grant, but otherwise of a personal, and so they take the Book of 37. H. 8. before cited to be good Law; and upon this difference o∣thers also have taken a difference where the consideration is to come to the King himself, and where it is to come to a stranger: others also have taken a difference where the consideration is of a thing valuable, and where it is not of value, yet they take a difference where that is past and executed, and where it is to come or Executorie; but he said that although divers of these differences seemed to be good with great reasons, and were backed with some Authorities, yet he needed not to take advantage of any of them for the maintenance of this Case, and for that he took this general difference for the maintenance of this Patent, viz. that if the consideration be such which brings a benefit or commonditie to the King, and this is false, that this avoyds the grant; but if it bring no commoditie to the King, al∣though it be false, yet the grant is good, and to prove this diversitie, he cited Har∣ris and Wings Case to be adjudged in Banco Regis, and Barwicks Case Cook lib. 5. and Sir Hugh Cholmleys Case Cook. lib. 2. to be adjudged accordingly of a false recital, and he said, although it be admitted that the consideration which the King intended to have was an actual surrender, yet in asmuch as this cannot be intended a thing more to his advantage, then a surrender in Law, the which plainly appears to be in this case, that the Patent is good, and for that he held that the second lease shall not be avoided for such a falsitie, and also he said that

this Case is more strong of his side then any Case which may be cited, in asmuch as the King had no discommoditie or loss by the falsitie of the consideration, but in this Case also he should be at a loss if the second lease were not good, for the second lease reserveth a greater rent to the King, then was reserved by the first, and therefore it is for his benefit, that the Law should allow of the second lease, to the intent it may make a surrender of the former lease, for the Kings advan∣tage, and if the King granteth probis hominibus de O. rendring rent they are by this grant impliedly made a corporation for the benefit of the King to render him the rent, whereas otherwise the grant would be void; and so he took it in the prin∣cipal case although the grant should be void, by reason of the false consideration, yet it should be good to this purpose for the Kings benefit: and after Termino Mich. Anno Sexto Jacobi Regis this Case was argued again, and Nicholas Serjeant for the Defendant said, that the sole point of the Case is, if the consi∣deration of the lease made in 27. Eliz. be good or not, and this is exprest to be Tam in consideratione sursum reddditionis praedict. quam pro aliis Causiis, et Considerationibus &c. then it is to be considered if here be such a surrender as is meant to be within the intent of the Consideration of the Queen, and he said that in this Case here was a good surrender in law clearly by the Book of 37. H. 6. for in all Cases where a Teimer for years accepts a lease of him in Reversion as here the Lord Seymor did, then this is a surrender in Law of his first interest, but the Earl of Salisbury Lord Treasurer said, that this is not properly a surren∣der of this Antient Term, but an extinguishment thereof, to which the Lord chief Baron Tanfield agreed: and Serjeant Nichols further said, that the Considera∣tion which moved the Queen to her grant was only the sufficient surrendring of the precedent estate of the Lord Seymor, and not the restoring of the letters Pa∣tents, and therefore although it be admitted, that here was not a sufficient resto∣ring of the letters Patents, nor an actual surrender by this means, yet here is an effectual surrender by the operation of Law, and then this being the sole Consi∣deration which moved the Queen to her grant, the not sufficient restoring of the letters Patents is not material, for he said, it seemed to him that in rei veritate the particular estate cannot be sufficiently surrendred by this bare giving up of the letters Patents by the Tenant for life, as it appears by Walshes Case cited in Altonwoods Case Cook lib. 1. and therefore he insisted not upon that. Second∣ly, he argued that a recital in the Kings Patents of a thing material if it be false, and come by information of the partie is all one as a false Consideration and not otherwise: and he said that it appears by Brook tit. Patents pla. 100. that all Considerations valuable, although they are false do not avoid a Patent, as where the King grants lands prodecem libris sibi solutis, although that in facto this is false, yet the grant is good: also it appears by 26. H. 8. and Sir Thomas Wrothes Case, and by 21. E. 4 fol. 48. that a consideration executed avoideth not a grant although it be false, but he said that it appears by the Case of 18. Eliz. Dy∣er 352. that if the King make a lease in Consideration of a surrender of a precedent lease which in truth was void, by some that the King may avoid the lease, but o∣thers contrary, because it was not done upon the suggestion of the partie, but for a consideration executed, and the surrender of the estate precedent was the materi∣al cause and consideration of the grant: and he said, that although in this Case there be not a good surrender of the letters Patents, yet the Consideration being only the surrendring of the estate, that is not material, for as it is said in Alton∣woods Case Cook lib. 1. if the King in Consideration only of the surrender of precedent Patents makes a grant, in this Case there needs no averment of an estate, for the surrender is not material of the letters Patents. Also it appears Cholm∣leys Case Cook lib. 2. that if the King recite an estate to be made with Condition, although that at the same time of the recital this is not Conditional, yet if once this were Conditional the King is not deceived, although the condition be now relea∣sed, and he cited also the Lord Chandos Case Cook lib. 6. where it appears that

if the King recite a thing untruly which cometh not of the information of the par∣tie, this shall not hurt the Grant, except it be part of the consideration, and he said, that Harris and Wings Case differs from this Case, for there the King had a Tenant who held a Tenement by the yearly rent of six pounds, and another Tenement of him by the yearly rent of nineteen pounds, and he made a new lease of both those to the said Tenant, without any recital of the former leases reserving but Nineteen pounds for both, and there it was adjudged, that the second lease was not good, but he said, that the reason of that judgement was, not because the antient lease was not recited, but by reason that a loss in the rent came to the King, and so by intendment he was deceived, and this was also upon the matter the reason of the resolution of Barwicks Case, and also in Mack-Williams Case, for there was not a surrender of the estate as the King intended, which ought to be, but in our Case the estate is well surrendred clearly, and he thought that these words (modo habens) may well stand with the Kings intent aswel to a surren∣der in Law, as to an actual surrender. The Attorney generall to the contrary.

• First for the recital, that the information of the partie was, that the King should have an actual surrender, and so was the Kings intent collected upon the infor∣mation of the partie.
• Secondly, that here is not any actual surrender.
• Third∣ly, that by consequence it followeth that the Queen is deceived.
• Fourthly, here is no surrender in Law in this Case.
• Fifthly, although here were a surrender in Law, yet that is not sufficient to make the grant good: to the first point be said, that alwayes a familiar construction ought to be made of the Kings grants, and therefore if the King grant all his portion of Tithes in D. this doth not pass his Parsonage in D. although he had no other Tithes there;

so if the King grant all his Titheable lands within the Mannor of B. although the lands of Coppihol∣ders are parcel of the demeasnes of the Mannor of B. yet these lands in such Case do not pass, Cook. lib. 1. Bozuns Case, and Cook lib. 1. Altonwoods Case fo. 46. a••so it appears by the pleading in Plowden in Wrothesleys case, and in Adams case, and also in Fulmerstons case; that although the antient particular estate be gone in Law by the acceptance of a new estate, yet it ought not to be plea∣ded as a surrender, and therefore it shall not be construed that the King intended such a surrender, which pleaders in their pleading do not accompt a surrender: also he said, that in regard that the Queen saith, quam quidem sursum redditi∣onem acceptamus it seems by that, that she did not intend a surrender in Law, and therefore accepted nothing, but gave an estate &c. and must be meant such a surrender, to which she is partie by her acceptance: also where the words are, mo∣do habens et gaudens, and therefore it is inferred that the Queen intended an estate containing in the Patentee this is true, for although that the Queen inten∣ded an actual surrender precedent to be made by the Patentee, yet his estate con∣tinues against the Queen untill an acceptance of a surrender by her, although also this may be called a surrender like unto a surrender of a benefice, untill an accep∣tance by the ordinary: also although it was found that the Queen made a new lease or letters Patents of the said Land to the said Lord Seymor, yet it appears not that the new letters Patents were accepted by the Lord Seymor until a moneth after the making of them when he made a lease to Johnson, and until that time without question there was no surrender either in fact, or in Law; and where it hath been objected that these words (modo habens) implie only the present time, he said that the word modo will alwayes signifie such a time as the Verb with which it is joyned will signifie, and therefore Cicero saith, modo hoc malum in hanc Rempublicam invasit: also the words Jam et nunc, are of such signi∣fication as this word modo is: and these words are alwayes governed by the Verb, as Jam venit &c. so in the Bible the story of Naaman and Gehesey, Jam modo venerunt duo, behold two young men are come to me &c. and as to the second point it is clear, that here is not any actual surrender, for the King cannot take by an actual surrender without matter of Record. And therefore it

was holden in the Lord Stanleys Case, that the King took nothing although his officers, by his command did feise a mans lands into their hands for the Kings use: also he said, that this appears by the 11. E. 4. and 2. Eliz. Dyer, if a man comes and saith, that he surrenders his office, and a Memorandum is recorded there∣of, but the Patent is not delivered up, it seems this is not sufficient to make a surrender, so on the other side, if the Patentee make a deed purporting asmuch: yet it appeareth by 19. of Eliz. Dyer, if the deed be not inrolled it is a good sur∣render, and he agreed to that which hath been objected against him, that although that the Iury did not finde in what Court the restoring of the Patent was, yet it ought to be intended to be made in Chancery, but he said that the Iury did not finde any time when the surrender was made, and that is a thing material to be found as it appears in Kemps Case, and Mack Williams Case before. Third∣ly, an actual surrender being in the King, new letters Patents urged to be made shall be intended to be part of the consideration which moved the King to a new grant, and he vouched 18. Eliz. Dyer 352▪ where a lease was recited which need∣ed not, and in facto, the said lease was a void lease in Law. And therefore the new lease made was also void à fortiori here where an actual surrender is recited to be made. Fourthly, he said, that the sole reason in Harris and Wings case was, that the first lease ought to have been recited, for if the King makes a lease, and after makes another lease of the same land to the same lessee, the first lease is in being at the time of the acceptance of the new lease, as appears by Fulmer∣stons case in Plowden, and therefore if in such case there be not a good recital of the lease in being, the second lease is not good, and so the acceptance of it makes no surrender of the former lease, and he said that the recital of the Queen in the principal Case is a shewing of a former lease destroyed, and not in being, and then no actual surrender being made, the said former lease contrary to this recital is in being still, and so the recital is false, and consequently the second lease is a void lease, and so this worketh no surrender in Law of the old lease, and so he conclu∣ded the fourth point, that here is no surrender in Law, and he held that if there had been a good surrender in Law, yet this had not made the Patent good, and where it was objected, that a consideration executed though valuable being false avoyds not a Patent, he said it appears in 6. Ed. 2. tit. pardon Brook 79. that a consideration of service in the Kings Patent ought to be alledged to have been performed, nevertheless it appears in Sir Thomas Worths case in Plowden, that such a particular service being alledged in the Patent to be executed needs not an averment that it was performed, for the Patent is good although such considera∣tion be false; but he said, that in this Case the precedent surrender is the materi∣al consideration, and therefore there ought not to be any material variance in the form of the consideration, and so is the difference betwixt this Case, and Worths Case, and therefore if the King make a grant to A. in consideration, that he had released by deed inrolled, and he had released by fine, here is a failing of the con∣sideration, that he had released by deed inrolled, when as he had released by fine, and so the grant is void, and he said that as it appears by the judgement given in Welshes Case cited in Altonwoods Case, that no equitie ought to be observed in the Kings grant against his express words, so here no equitie ought to be ob∣served against the King, otherwise then his plain words import, and therefore here his words import and intend an actual surrender precedent, which ought not to be satisfied with a surrender subsequent: and after upon the motion of the Earl of Salisbury Lord Treasurer of England, this Case was referred to the Lord Privy Seal, and the Lord of Worcester, who awarded to Sir Robert Johnson 200 l. per annum during his life, and the life of his wife for all his interest; but the Earl of Salisbury Lord Treasurer seemed that the matter in Law was against Sir Robert Johnson, although that equitie was for him, to which opinion Tan∣field chief Baron also inclined, in regard there was not here any surrender in the Case, but an extinguishment only.

Hill. 4. Jac. in the Exchequer.

IT was moved by one, whether the Kings Patentee of Pirats goods, seising some goods of Pirats should pay custome for them or not, and it was holden by the Barons, that he should pay none, for in asmuch as they are goods given by Law unto the King, no reason that he should have custome for his own goods.

The Case of Queens Colledge in Oxford of Minosmer.

UPon a special verdict the Iury found, that Queens Colledge in Oxford was incorporated by the name of Provost and Schollers of the Hall of the Queens Colledge of Oxford, and they were seised in fee of an advowson where∣of the place is parcel, the Church being void, the Provost and Schollers aforesaid did by the name of Provost of Queens Colledge in the Universitie of Oxford, and the fellows and Scholers of the same present one A. to the same avoydance, who after admission &c. made a lease for years, yet to come to the Defendant, which was confirmed by the Patron and Ordinary, and that afterwards A. died, and the Plautiff was presented admitted, instituted, and inducted, and the Defendant entring claiming his lease, the Plantiff had brought this Action. Harris Junior Serjeant for the Plantiff seemed, that the presentation of the lessor of the Defendant was not by the true name of the Patrons, and so the lease void, and therefore the Defendant a Trespasser as to the Plantiff, and he said, that the name of a Corporation is not like to a mans surname which groweth by nature, but is like to a name of Baptisme which groweth by politie, and therefore ought to be truly observed in their grants and presentations, as appears by 35. H. 6. fo. 5. and it is there said, if a man be baptized by the name of Posthumus, if this addition of Posthumus be omitted, this abates the writ, but yet he agreed that variance of the name of a Corporation in some manner of Surplusage hindreth not, as in Plowden Crofts and Howels Case, and it was in Fisher and Boys Case ruled, that Custos for gardianus was not any material variance, but he said, that in Mich. 29. & 30. Eliz. in Banco Regis in Merton Colledge Case, where the title was, that the said Colledge was incorporated by the name of the Colledge of Scholers of the house of Merton Colledge, and in a lease by them this word Scholers was omitted, and holden void, for that cause, and so it was betwixt one Wingate and Hall, the Dean and Canons of Windsor 22. E. 4. were in∣corporated by the name of Dean and Canons of the Kings free Chappel of St. George the Martyr within his Castle of Windsor, adjudged the variance (of the Kings and Queens free Chappel) was material although the lease was made in the time of Philip and Marie. And he vouched also 44. E. 3. fo. 3. and 38. E. 3. fo. 28. and he said, that it seemed to him, that this presentation by another name had gained an usurpation by the Provost in his natural capacitie: also it see∣meth that notwithstanding it is not found, that Doctor Airie was presented, in∣stituted, and inducced; yet the special verdict is good enough to have judgement of his part, but he agreed, that if the truth of the Case had been discovered by the pleading, then it ought to be precisely shewed, that such exact finding is not ne∣cessary in a special verdict, as in pleading, and he vouched Allens Case 33. Eliz. Banco Regis where the Iury found, that Tenant for life made a lease for years, and found not the lessor living nor dead, and yet in this Case he was intended li∣ving. and he cited also Haydons Case Cook lib. 3. and Hunts Case 5. Ma. Dyer 153. and he voucht the Case of West against Munson in a writ of error in the Kings

Bench, wherein the first action being an Assise in the Common Pleas, it was alledged for error that the Iury did not finde the Plantiff was disseised, but only the Defendant disseised him, and yet the judgement was affirmed: Dodderidge the Kings Serjeant for the Defendant, he agreed that the name of a Corporation is essential to be alwayes used in their grants, for thereby they are distinguished from other Corporations, but he conceived that in this Case here is a sufficient supplying of that part of the name which is omitted, and he said that although the special verdict in one place mentions the name of Queens Colledge, yet when they nominate the Corporation, it cals them the Provost and Scholers of the Hall o∣mitting the words (Queens Colledge) and then they finde that the Provost and Scholers by the name of &c. and he said, that in so much the Iury found precisely that the same Corporation made the demise, it is not material by what name they made it, and therefore he said that if a Iury finde, that I. S. had made a feofment by the name of R. S. this is good enough, as it was holden in Shotbolts Case 10. & 11. Eliz. and so in 13. E. 2. fitz. tit. Bastardy pl. 25. a Iury found that two daughters were heirs, and that the Defendant was born in espousals, a non suit, and so 20. Eliz Dyer 361. the Iury found that Executors received rents incident to the reversion, and so assets in their hands, and he cited also Dyer 372. to the second matter he thought that the omitting of the name precisely of Doctor Airie made the special verdict vitious, and will inveigle the Iudges, so that they can∣not give Iudgement, for it may be that Doctor Airie was presented by the same name of Corporation as the other presentee was, for he said in truth the Case was so: also the special verdict is vitious, because they found not any time of the Presentation of Doctor Airie, for peradventure he was presented by the said Colledge, when he was Provost thereof, and then his presentation is not good, by 22 E. 4. and to this purpose he cited Heckers case in 12. H. 8. and one Ful∣jambes case in 6. E. 6. in Bendlows, and then admitting that Doctor Airie should be intended an usurper if he shall avoid this lease: it was also moved, that if a Corporation by a false name present, and admission, institution, and induction is made by a true name, if this make a Plenartie: and Boswel and Greens case Cook lib. 6. was cited: See more after fol.

The Maior of Lincolns Case.

Huddleston and Hills case.

IN an Attachment against the Maior of Lincoln, and the Steward of the Court there being Colshil, it was said, that if a writ of error be directed to an inferi∣our Court, they ought to execute it in all things although that their fee be not paid, nor tendered to them, and Mr. Man Secondarie to Roper said, that the fee which is demanded by them ought to be indorsed upon the return of the writ of error, so that the Iudges may judge of it if it be reasonable, and divers presidents warrant that accordingly.

Huddleston and Hill against Bows, an Elegit upon a judgement issued at the suit of Hill, and after Hill died, and his eldest son sued a scire facias upon the said judgement, and holden that it lieth not.

If a man sue in the Ecclesiastical Court for Tithes of Headlands, the Defen∣dant may have a Prohibition, but by some he ought to suggest that they are but small Headlands, and that there is a custome of discharge in consideration that he paid Tithes in kinde of Meadows, and in this case Williams said, that if a man keep sheep in one Parish until Shearing time, and then sell them into another Pa∣rish, in this Case the Vendee shall pay the Tithe wool to the Parish where they

were depastured in the greater part of the time of the growing of the wool. See the Tithing Tavle the fifth question.

Skelton against the Lady Airie.

IN a Prohibition the Plantiff saith, that—was seised of the Mannor of Calthrop, and also of the Rectory of Haughton Calthrop, and that the land whereof the tithe is demanded is Coppihold, and holden of the said Mannor, and that this was also found by special verdict accordingly, and that it had been always discharged of payment of Tithes, and it was argued, that the Prohibition did lie, for it was adjudged Mich 34. & 35. Eliz. that a perpe∣tual union of the Parsonage, and the land charged is a sufficient discharge of the Tithes, and a prescription may be well enough to be discharged of the payment of Tithes, as it appears by a Case put in the Arch-Bishop of Canterburies Case: Cook lib. 2. George Crook of Counsel on the other side, and he conceived that a perpetual unitie was no perpetual discharge, and he said there was no judgement given in the Case cited before, and he also said, that the Iury in this Case found not a discharge of payment of Tithes, but only a new usage to pay by unitie of possession, and he cited 10. H. 7. or 6. where the manner of Tithing is set down; also he cited the Bishop of Winchesters Case Cook lib. 2. and he cited the Prior of D. Case to be resolved in 40. Eliz. that a Coppiholder may prescribe to be dis∣charged of Tithes by pleading that he was alwayes Tenant by Copie to a spiri∣tual Corporation: also he cited the Case of Pigot and Hern mentioned in Cook lib. 2. in the Bishop of Wintons Case fol. 45. and he said, that it was adjudged in Sheddingtons Case, that if a man prescribe to be discharged of payment of Tithes by reason of payment of another kinde of Tithe, that this is not good.

Marie Reps against Babham.

MArie Reps by her Gardian was Plantiff against Babham in an action of Trespas, the Case was, that a feofment was made to the use of husband and wife for their lives, and after to the heirs of the body of the wife begotten by the husband, and if this was an estate tail general in the wife, or an estate in spe∣cial tail to the husband it was demurred: Richardson argued that it was a gene∣ral estate taile in the wife, and that the husband had but for life, and he vouched 11. E. 3. Fitz. tit. Formedon in proof thereof: Henry Yelverton thought it was an estate tail in both, and he said, that the Case in the 11. E. 3. is not like to this Case, for there the Prior cannot take but as Tenant in Common, and he vouched of his part 17. E. 2. title—where the inheritance is limited no more to the body of the one then of the other, there is an estate tail in both out of which Littleton took his Case; and Fitz. nat. Brevium fol. 193. G. where he puts the very Case in effect 41. E. 3. fol. 24.3. E. 3. fo. 90. Rips Case 21. E. 3. fo. 41.4. E. 3. fo. 145. and 15. Eliz. in the Common Pleas was, that a guift was made to husband and wife, and to the heirs of the bodie of the husband, of the body of the wife begotten, and this was holden an estate tail in both, if the word husband followeth immediätely, the word heir it is an estate tail in that person only, but if the word (with) be interpreted it altereth, but the word (or) interposed maketh no difference, no more then if the word husband had immediately followed 19. H. 6.75.

Pasch. 4. Jac. in the Exche∣quer.

Richards against Williams.

IN an action of Trover and conversion, betwixt Richards and Williams for two loads of Barley, the Defendant saith, that the Dean; Arch-Deacon, president, and Chapter of Landaffe was seised of a Personage in fee, and by the said name had leased unto the Defendant, to which the Plantiff replied, that the Arch-Deacon and Chapter of Landaffe were seised in fee, and leased unto him without that, that there was any Corporation as Dean, Arch-Deacon, president, and Chapter, whereupon the Defendant demurred: George Crook argued, that the Replication is good, and he made two points.

• First, that here is a good inducment to a Traverse.
• Secondly, that there ought to be a Traverse in the Case: to the first he said, that if the Defendant intitle himself by one name, and the Plantiff by another name, here is a good inducement for a Traverse, and he cited Croft and Howels Case in Plowden, where the Cooks were incor∣porated: by E. 4. by the name of Master and Governous;

and they made a lease of lands by the name of Master and Wardens, and this was holden a void lease, and he vouched to this purpose also 21. E. 4. fol. 56. where a Corporation was of Dean and Viccars, and a lease was made by them by the name of Dean and Priests, and 30. Eliz in the Kings Bench, and Windgate Hals Case, and Eaten Colledge Case in 3. & 4. Ma. Dyer 150.2. that in this Case the Plan∣tiff ought to take a Traverse, and he cited 44. Assise pl. 9. &. 44. E. 3. fo. 26. where one pleaded, that the Prior of the Hospital of St. &c. and the othersaid that the Prior of the house &c. and an averment was made, that it was known by the one name and by the other, or otherwise the plea had not been good without a Traverse: also he cited the Case of Raunce, and the Dean and Chapter of Chichesters Case in the Kings Bench, where Raunce took such an averment, or otherwise he ought to have taken a Traverse, and he cited the Lord Barleys Case in Plowden, and 5. H. 7. and he said, that the Plantiff by his Replication alledged other mat∣ter in fact then the Defendant did, and therefore there ought to be a Traverse 12. E 4. also if a man brings an action by the name of Gardian, and the other saith he is Prior, this is not good without a Traverse that he is not Gardian, 4. E. 4. fo. 6.32. H. 6. fo. 4.38. E. 3. fo. 34. an accompt supposing the Defendant one of the company of M. and it is there said, that the Defendant not being sued in the action, as one of the company, but this is only used for an addition, therefore there ought to be no Traverse: and after this argument Tanfield chief Baron said, that the argument now made touched not the point in this Replication, for the point is not if there needeth a Traverse in the cause, but what thing is Tra∣versable therein, videlicet, what is the principal matter alledged for the Defen∣dant, and therefore he put this Case, Prior and Covent of D. claim an Annuity by prescription, the Defendant saith, that within time of memory they were in∣corporated by the name of &c. in regard that it is within time of memory, Quere what thing is Traversable here, that is to say, what thing is the principal mat∣ter: and after at another day Walker to the contrary; and first he said, that it is not alledged in fact by the Defendant, but by implication. That there was any such corporation as Dean &c. and that which is alledged, but by implication ought never to be Traversed, and he vouched Dyer 365. & 27. H. 8.27. The al∣ledging that the Dean &c. is but matter of induement to the Plea in Bar, and therefore is not Traversable, for the lease supposed to be made by them is the matter of substance, and he vouched a Case between Richarson and Sir George Heart 31. Eliz. to be, where in an action against the Sheriff, for suffering an other to escape who was in Execution at the Plantiffs suit, and the Sheriff said, that he never arrested him, and he vouched also 10. H. 6. fo. 13. thirdly, he said,

that the Plantiff doth not Traverse in the same manner as is alledged by the Defendant, and therefore the Traverse is not good, and he vouched 27. H. 8. fo. 26. where in Trespass the Defendant saith, that I. S. is seised in fee &c. the Plan∣tiff saith, that his father was seised in fee, without that that he had, any thing, this is no good Traverse, and Thompson thought it no good Traverse; it is alledg∣ed in fact for the Defendant, that such a Corporation made a lease, therefore there was such a Corporation, and he said that a man may Traverse by a Negative pray∣er, or by a Negative pregnant 9. H. 7. & 27. H. 6. where a Trespas was brought by I. and G. his wife, the Defendant said, there is no such G. his wife, and this is good: and so in 40. E. 3. fo. 36. & 37.11. H. 4. fo. 10.45. E. 3. fo. 6. in a quare impedit praesentare to the Church of D. the Defendant saith, that there is no such Church, 22. E. 4. fo. 34. an action was brought against I. S. Maior of D. and he Traversed that there is no such Corporation; Tanfield chief Baron said, that if in an action of Trespass the Defendant saith, that I. S. was seised in fee, and infeoffed him without that &c. and the Plantiff saith, that I. S. was seised in fee, and infeoffed me without that, that there was any such person as I. S. in being, this is no good Traverse: Hern Baron seemed that this Traverse is good in the principal Case, but he was once of Counsel with the Plan∣tiff; and it was moved that the Case should be Compounded.

An Information against Page.

IN an Information against Page, and another upon the Statute of 3. & 4. E. 6. cap. 21. for buying of Butter, and selling of the same by retail contrary to the form of the Statute, upon not guiltie pleaded, the Iury found one of them only guiltie both of buying and selling, and the other not guiltie: and it was moved, that no judgement may be given in this Case, in asmuch as the action is conceived upon a joynt buying by two: and it appeareth that this is but by one, but it was argued, that judgement ought to be given, for it cannot be intended in Law, as to this purpose a joynt buying, for the wrong is several, and in proof thereof was cited 36. H. 6. fo. 27. the 11. H. 4. Dyer fo. 194. or 195. accordingly; also this action is for a wrong done to the Common-wealth, which is a several wrong by either; and to this purpose was cited 40. E. 3. fo. 35. & 36. H. 6. ci∣ted before, and 5. H. 5. fo. 3. where an action de malefactoribus in Pareis was brought against three, and one only was found guiltie, and judgement was given against him, and there is no difference as to this purpose between this Case, and an action of debt upon a joynt contract made by two, as appeareth by 21. H. 7. and Partridges Case in Plowden, where it is said, that the bargaining is but matter of conveyance to the action, and according unto this was cited 33. H. 8. Brook tit. issue: and also 28. H. 6. fo. 7. and 36. H. 6. fo. 29. and a Case was adjudge∣ed in Mich. 35. & 36 Eliz. in the Kings Bench, which proves the same also: where an information was brought supposing the Defendant to have bought Cattle of two, contrary to the form of the Statute, and it was found that he bought them but of one, and yet judgement was given: Hitchcock to the contrary. and he argued, that no judgement ought to be given, for he said, that if an information be brought against two upon the Statute of usury, and one only is found guiltie, yet no judgement may be given in this Case, to which the Court agreed: and he cited Dyer 160.5. Ma. where two sued in the Court of Admiraltie one, for an offence triable within the bodie of the Countie, contrary to the Statutes of 13. & 15. of R. 2. and an action was brought against one of them only, and good, and he vouched also 22. Eliz. Dyer fo. 370.2. R. 3. fo. 18. where three brought an account against one, he pleads he was never their receiver, and the Iury found &c. and he cited a case to this purpose, an information was brought against two for buying of Cattle of one B. and for selling of them contrary to the form of the

Statute, and in this Case the Iury found the Defendant not guiltie for the buy∣ing them of B. but that he bought them of one P. and upon an attaint of the Iury the opinion of the Court was in this case, that though the verdict was affirmed, yet no judgement ought to be given thereupon, and this was the true Case of Lid∣wood and Pearpoint cited before on the other side, as George Crook said.

York and Allein.

A Man recovered damages in an action upon the Case against B. who at the time of the judgement was joyntly seised in fee with C. and that after B. and C. aliened, the partie who recovered is outlawed, the King eight years after this outlawry extends the moitie of this land for these damages recovered against B. and it was moved, if he shall have them in extent for them, or not, also if he shall have it without a scire facias; and the Barons were clear in opinion that he shall have it in extent, for it was liable to the extent of the partie outlawed before the Alienation, and then when it comes to the King by the outlawry, although it be after the Alienation, it continueth extendible for the King, although the Alienation was before the outlawry.

It was admitted by all the Barons, that if a Coppiholder surrender to the use of a younger son, and dies, that this younger son cannot bring an action until admittance, but if the Copihold had descended to the heir, he may have an action before admittance: see Cook Coppihold Cases lib. 4. fol. 22. and also it was said, that all Coppiholders of the Kings Mannors may now have admittance into their Coppihold estates well enough, and the order for the stay of their admittances which was made heretofore is now dissolved and quashed.

Dennis against Drake.

DEbt was brought by Dennis against Drake Sheriff for an escape, a man had judgement in the Kings Bench, and a writ of error was brought with∣in the year, and after the year passed the judgement was affirmed in the Exchequer Chamber, and within a year after the affirmation a Capias issued to the said Drake the Sheriff, who took the partie and suffered him to escape, and this being the Case upon the declaration in this action the Defendant demurred, and all the Barons said, that there is no question but a Capias may well issue within the year after judgement affirmed without a scire facias, though it be more then a year after the first judgement, and it seemed to them, that there was no difference, though that the writ of error was not brought untill after the year of the first judge∣ment given, although in such case there be an apparant neglect in the partie, who had not sued his execution within the year, and therefore he was enforced to a scire facias thorough his neglect, whereas if error had been brought within the year, he had never been driven to his scire facias in this Case, yet for asmuch as when the judgement is affirmed, this is all one as a new judgement, they conceived it made no difference, and Tanfield chief Baron said, that it had been often so judged in the Kings Bench.

It was said here, that if a man be instituted to a benefice he ought to pay the first fruits before induction by the Statute, but by the Common Law it was o∣therwise, for he is not to have the temporalities until induction, and therefore he could not pay the first fruits, but another person cannot be presented to this be∣nefice during the continuance of the first institution, see Cook lib. 4. in Digbies Case fol. 79. that the institution to a second benefice is a present avoydance of the first.

Saint Saviours in Southwark in an Information.

IN an Information of intrusion against A. and B. the Defendants claim and justifie by force of a lease made unto them by the Queen of the Rectory of Saint Saviours in Southwark in the year 33. Eliz. and the truth of the Case was, that the Church-wardens of the Church of Saint Saviours, and their successors were incorporated by letters Patents, in which Patents, it was contained that the Parishioners or the greater number of them, every year should elect two Church-wardens, and that the said Church-wardens and their successors are a Corpora∣tion capable to take, purchase, and sell, and after the said Charter so made in re∣gard of the great number of the Parishioners of the said Parish, the Bishop of the Diocess made an order, that the Parishioners should appoint a certain number of the said Parish to be called Vestrie men, the which Vestrie men, should have the election of the Church-wardens from time to time, for and in the name of the whole Parish, and after it was used, that the said Vestrie men elected the Church-wardens accordingly for a long time, and that A. and B. being so elected the Queen Anno 33. Eliz. made a lease to them for years by the name of A. and B. Church-wardens of the Parish of Saint Saviours &c. and their successors rendring rent, and this appearing to be the Case upon evidence to the jury; the Barons moved two points.

• First, if the election made by the Vestrie men were a good election to make them a Corporation capable to purchase within the intent of the Kings Charter, in so much that saith, that they shall be elected by the greater number of the Parishioners, and here but a small number that is the Vestrie elected them; and as to that it seems by the Barons, that in regard it was not given in evidence that others of the Parish to a great number did withstand, or gain-say the said election or nomination, it being made at a day usual and place certain, and therefore all the Parishioners by intendment were knowing of it, or might by intendment of Law have been present at the said election, it being in an open place where every Parishioner might make resort, and did not, therefore it was held that this election was as good as if all the Parishioners had met and elected them, for it were hard in Law, if the election by these that are present should not be good when the residue are wilfully absent, and therefore Tanfield chief Baron cited a Case, where the King did grant that the Parishioners of Wallingford should be a corporation to bargain and sell, and that the greater number of the Pa∣rishioners there did make leases and estates, and there was an usage, that at the time of meeting for the making of any such leases by them, they did use to Ring a bell, by the which notice was intended to be given of the assembly: and that after such Bell rung 20. of the Parishioners then present did make a lease, there being 100. others in the Parish not present, and yet this was adjudged in the Court 32. Eliz. to be a good lease, and he said, that if there be a day and place by usage certain for their meeting, in such case there needeth no warning; and therefore in the principal case, the election was good, but as for any order made by the Bishop that had been of no force to this purpose.
• Secondly, it was moved, that although this were not good to make them Church-wardens within the intent of the Kings Charter of Corporations, yet that this lease made by the King, should amount to make them a Corporation, and to a lease unto them also, that being by intend∣ment for the benefit of the King, inasmuch as a rent is reserved; like as when the King makes a lease, to the honest men of Islington rendring rent, but unto this Tanfield the chief Baron said, that he held, that this lease should not make a corporation where the King conceived, that there was no corporation before, but

• that the King should rather be said to be deceived, for he took a difference where there is a reputed Corporation in being and where there is not, and thereupon the Barons directed the Iury to give a general verdict.

In this case it was agreed by the Barons, that if the King make a lease for years to A. and after he makes a lease of the same land to A. for more years, this second lease is meerly void, and therefore the acceptance of it shall not cause a sur∣render of the other lease, and they said, that it was holden accordingly in Harris, and Wings Case; see Plowden, Fulmerston and Stewards Case, in which case the second lease was one good, although it was void after by relation.

It was held for Law, that if a man do make a feosment to A. to the use of B. for the life of C. and that if B. and C. die, then the remainder over, this is a Con∣tingent remainder by Borastons Case in Cook lib. 3. and also by Colthirsts Case in Plowden.

It was also held, that if a man doth in consideration, that his son shall marry the daughter of B. covenant to stand seised to the use of his son, for life, and after to the use of other his sons, in reversion or remainder, these uses thus limited in remainder, are fraudulent against a putchaser, though the first be upon good consideration, viz. for marriage, also it was holden, though the consideration of marriage be a good consideration, yet if a power of revocation be annexed to it, it is void as unto strangers.

By Standon and Bullocks Case cited in Twins Case Cook lib. 3. if a man reserved a power of revocation by assent of a stranger, this is fraudulent, but if there be a consideration to be paid before the revocation it is otherwise.

Mich. 4. Jac. in the Exche∣quer.

An Information against Bates Mich. 4. Jac. in the Exchequer.

AN Information was exhibited against Bates a Merchant of the levant, and it was recited, that the King by his letters Patents under the great Seal had commanded his Treasurer, that he command the customers, and receivers, that they should ask and receive of every Merchant denizen, who brings within any Port within his dominions, any Currants five shillings a hundred, for impost above two shillings and six pence, which was the Poundage by the Statute of every hundred, and it was alledged; that Bates had notice thereof, and that he had brought in Currants into the Port of London, and refused to pay the said 5. s. in contempt of the King, whereunto Bates came, and said, that he is an Eng∣lish Merchant, and an venturer and a denizen, and that he made a voyage to Ve∣nice, and there bought Currants, and imported them into England, and he re∣cited the Statute of the first of King James cap. 33. which grants 2. s. 6. d. for Poundage, and he said, that he had paid that, and therefore he had refused to pay the 5. s. because it was imposed unjustly, and unduly against the Lawes of the land, whereupon the Kings Attorney demurred in Law; this matter had been divers times argued at the Bar, and at the Bench, by Snig, and Savil, Barons, and now by Clark and Flemming chief Baton whose arguments I only heard, and Clark, who argued first this day said, that this Case being of so great conse∣quence great respect, and consideration is to be had, and it seemeth to me strange, that any subjects would contend with the King, in this high point of Prerogative; but such is the Kings grace, that he had shewed his intent to be, that this matter shall be disputed and adjudged by us according to the antient Law and custome of the Realm, and because that the judgement of this matter cannot be well directed by any learning delivered in our Books of Law, the best directions herein are presedents of antiquitie, and the course of this Court, wherein all actions of this

nature are to be judged, and the Acts of Parliament recited in arguments of this Case prove nothing to this purpose, the best case in Law, is the Case of Mines in Mr. Plowden Com. where this ground is put, that the precedents of every Court, ought to be a direction to that Court, to judge of matters which are apt∣ly determinable therein, as in the Kings Bench for matters of the Crown, in the Common Pleas for matters of inheritance and Civil contracts, and in the Exche∣quer for matters of the Kings Prerogative, his revenues, and government, and as it is not a Kingdome without subjects and government, so he is not a King without revenues, for without them he cannot preserve his dominions in peace, he cannot maintain war, nor reward his servants, according to the state and ho∣nor of a King, and the revenue of the Crown is the very essential part of the Crown, and he who rendeth that from the King pulleth also his Crown from his head, for it cannot be separated from the Crown, and such great Prerogatives of the Crown, (without which it cannot be) ought not to be disputed, and in these cases of Prerogative the judgement shall not be, according to the rules of the Common Law, but according to the Presidents of this Court wherein these matters are disputable and determinable, as for Example, an action of accompt lies not by the Common Law against him, who had the land of the accomptant by mean conveyance, but if one be an accomptant to the King, and had land in fee, and alien it unto A. who alien it unto B. B. by reason of this land shall be charged with this accompt: in 14. E. 3. a Coroner was elected by the Kings writ as he ought to be, by the Countie, and after be was amerced, and because he was not sufficient to answer the Amercement the Countie was charged there∣with, and that appears of Record here, and in 30. E. 3. Rot. 6. as appears also of Record, in this Court one William Porter was Magister monetae, and had received Bullien of divers Merchants, and Coyned it in the Kings Mint, and did not restore the Coyne to the Merchants, but was insufficient, and the King paid the Merchants, and inquired of the suerties for the Coyne, and it was found that he had none, then it was inquired who recommended him unto the King, and it was found by whom he was recommended: and they who only recommended him as friends, were charged with the Debt, and if one be outlawed in a perso∣nal action, and Debt is due to him upon a contract, this shall be forfeited to the King, and this is ordinary by the Presidents of this Court, and yet this seems to be contrary to Law, and is against our Books, and the Kings Debtor shall have a quo minus against Executors upon a simple contract, and therein he cannot release, nor be non-suited, and I put these cases to prove, that the presidents of this Court ought to be pursued and observed, although they seem to cross the Common Law, and the Books thereof: a case was here betwixt the King and Jourden, Jourden was receiver, and sold his office to one D. and he not being able to pay Jourden for his office at the day limited, it was agreed, that Jourden should come to the next receipt, and when D. received the Kings money, that Jourden should take it for his office, which was done accordingly, after D. was indebted to the King, and this matter appearing as above &c. Jourden was char∣ged with the money which he had received, and as Stamford in his first cap. of Prerogative saith, that the King is the most worthy part of a Common-wealth so is he the preserver, nourisher, and defender of the people, and true it is, that the weal of the King is the publick weal of the people, and he for his pleasure may a forrest the word of any subject, and he thereby shall be subject to the Law of the Forrest, and be may take the provision of any man by his Purvieour, for his own use but at reasonable prizes, and without abuse, the abuse of which officer hath been restrained by divers Statutes, and the King may take wines for his provision, and also Timber for his Ships, Castles, or houses in the wood of any man, and this is for publick benefit, and the King may allay, or inhaunce Coyne at his pleasure, for the plentie of the King is the peoples peace, and these imposts are not only for the benefit of the people, and for the Kings profit, but are

also imposed many times for the increase of Merchandise, and Commerce, as the Statute of, Aulnageors made in the 2. E. 3. cap. 14. which was made princi∣pally to make cloathes more Vendible, and so Corporations are granted by the King with immunities and priviledges, and to seclude other subjects from them, are well limited and good, for it is for the increase of the peoples wealth, and there∣by the Kings revenue is increased, and sometimes there is contained in grants a Prohibition to other subjects, that they usury not upon the priviledges of such Corporations upon a pain, as in the custome of Forraign bought, and Forraign sold in London, and York, and divers customes are permitted to such Corpo∣rations, as in the Chamberlain of Londons Case, Cook 5. and the breach or violation of these customes is a decay of the Corporations, and so an impairing of the revenues of the Crown, and therefore the King may make them, and also give them priviledges, and make inhibitions to others, not to Vsurp upon them: King Edward the third in the sixteenth year of his Raign proclaimed, that no man should sell Wool-fels, or Leather under such a price, so that these staple commodities might not be debased, and this at no place, but at Northampton and Anwick, and this proclamation was the cause wherefore the Merchant in 43. Assise 38. was punished for using the slight to abate the prices, and for presidents in this matter of Impost, there are many of antiquitie, and first for Wines in 16. E. 1. the custome for a Tun of Wine was 4. s. and 21. and 24. E. 3. it was increased to—and 12.13. & 14. of H. 8. it was increased to 17. s. the Tun, and after in the 4th. of Mary it was increased to 4. Marks, and as it appears by the Records of this Court, it was answered upon accompt, for all this time according to that rate, and it is apparant, that no act of Parliament gave this to the King, but that it was imposed by his absolute power, and shall it now be doubted if it be lawful? God defend Prisage, that the King shall have one Hogs-head before the Mast, and another Hogs-head behinde, is not given to the King by any Statute, but was only an Impost by the Kings power, the Impost upon cloathes in 31. E. 1. was two shillings for a Scarlet, and 18. d. for other cloathes in Grain, and after in the 37th. year of E. 3. it was raised again and in the 37. E. 3. an Act was made for the length of cloathes, in the 33. H. 8. it was raised again, and in the time of Queen Mary, because that the making of so ma∣ny cloathes made the Impost of Wooll to be of so small value, therefore the Im∣post of every cloath was raised by her to a noble, and in the first of Eliz. an Im∣post was imposed, for the overlength of cloathes, and it appears in 30. E. 3. that the Impost of one Cloath was for a stranger 2. s. 8. d. and for a denizen 1. s. and all for cloathes: another Impost was for Woolfels, and Leather, the 31. E. 1. it was for Wooll half a Mark for a Sack, and after that to 10. s. and in the time of E. 3. to 20. s. and after to 40. s. and after to 3. l. and so of Woolfels and Lea∣ther, and as the benefit and price of commodities did rise, so was the Impost rais∣ed, and no Act of Parliament for the first imposing, and increase thereof, and so much for Woolfels and Leather. Now for allom, upon every kintal of allom was imposed 3. s. 4. d. which was answered upon accompt, and in the case of Smith it was not doubted if it shall be paid as here it is, but if it were contained in Smiths Patent or not, the imposition imposed upon Coles, now the 1. s. in∣crease is paid, the imposition upon Tobacco was never doubted to be unjust as this is, and so much for presidents. And now for Statutes, the Statute of Mag∣na Charta cap. 30. which was objected, that thereby all Merchants may have safe &c. to buy and sell, without all Tolluets, but there is a saving, viz. by the antient and old customs: the Statute of Articuli super chartas cap. 2. hath a sa∣ving in the end of it, that the King or his Councel did not intend thereby to in∣crease the antient prices due and accustomed; so are all the other Statutes of Purveyors, the Statute of the 45. E. 3. cap. 4. which hath been so much urged, that no new imposition shall be imposed upon Woolfels, wooll, or Leather, but only the custome and subsidie granted to the King, this extends only to the King

himself, and shall not binde his successors, for it is a principal part of the Crown of England, which the King cannot diminish, and the same King 24. of his Raign granted divers exemptions to certain persons, and because that it was in derogation of his state imperial, he himself recalled, and adnulled the same; as to that which was objected, that the Defendant had paid poundage granted by the Statute of the first to the King, that is nothing to this purpose, for that is a sub∣sidie, and not a custome, for when any imposition is granted by Parliament, it is only a subsidie, and not a custome, for the nature thereof is changed, and the impost of Wine is paid over, and above the poundage, and so should it be here, and whereas it was objected, that if it were in the time of war, it is sufferable, but in peace not, this seems no reason, for the King cannot be furnished to make defence in war, if he provide not in peace, and the provision is too late made, when it ought to be used, and as to that which was said, that the subject ought to have recompence, and valuable satisfaction, it seemeth to me that he had; for he hath the Kings protection within his Ports, and his safe conduct upon the land, and his defence upon the Sea, and all the Ports of the Realm belong to the King, and in this Court, there is a president where one in the time of Queen Eliz. claim∣ed to have a Port to himself as his own, and it was adjudged that he could not, for it belonged to the Queen, and it could not be severed, and the King only shall have the customes, for landing throughout all the land, and in the 17. of E. 3. there is a notable president, where he reciteth all the benefits, which the subject had in his forraign Traffick, by the Kings power and protection, and therefore he imposed a new Impost: the writ of ne exeat Regnum comprehends a probabi∣tion to him to whom it is directed, that he shall not go beyond the Seas, and this may be directed at the Kings pleasure to any man, who is his subject, and so con∣sequently may he prohibite all Merchants, and as he may prohibite the persons, so may he the goods of any man, viz. that he shall export or import at his pleasure, and if the King may generally inhibite, that such goods shall not be imported, then by the same reason may he prohibite them, upon condition or sub modo, viz. that if they import such goods: that then they shall pay &c. and if the general be lawful the particular cannot be unjust, and the words in the writ of ne exeat Reg∣num, viz. et quam plurima nobis, et Coronae nostrae praejudicialia ibidem prosequi intendis are not traversable by the subject, but he ought dutifully to o∣bey his Soveraign: as to that, which is said, that this command to the Treasu∣rer is not sufficient under the great Seal, that is otherwise, for before the Sta∣tute of R. 2. for matter of customes no command was directer to the Treasurer, but alwayes the King signified his pleasure to his customers under his privie Seal, and this gave authoritie to them to collect customes, and the same authori∣tie is given now to the Treasurer, and derived from him to the customers, as to that which is said, that the conclusion is evil, because it is in contempt of the King, without doubt it is a contempt, for the King may inhibit Traffick into any part of the world, if he will, or inflict a pain upon any, who shall Trade into such place inhibited, so may he do upon any commoditie either inhibit it generally, or upon a pain or Impost, and if a subject use the Trade after such inhibition, or import his wars, and pay not the impost, it is a contempt, and the King shall punish him for it, at his pleasure; and as to that which is said, that it is a bur∣then to the Merchant, that is not so, for the burthen layeth it only upon the better part of the subjects, and if it were a burthen, it is no more then they themselves imposed, which was in their hands by commission in the time of Queen Eliz. and they have raised the prices to subjects more then the value of the Impost; and it is not to be intended, that the King by any Impost will prejudice the cause of Merchants, for the Trade in general is to him more beneficial, then any parti∣cular Impost: the case of the 11. and 14. H. 4. of Aulnageor, is not to be com∣pared to this Case, for there the King had made a grant to a subject, and it was also of a thing which was granted before to a Maior, and also of a commoditie

within the land, and not transported, and for the case of Darcy: for the mono∣poly of Cards it is not like, for that is of a commoditie within the land, and be∣twixt the Patentee, and the King, and not between the King, and the subject, and as to the exception taken to the Information, that it is Vsitar. and doth not prescribe, this needeth not, for it is a prerogative wherein lieth no prescription, for every prerogative is as antient as the Crown, and as to the conclusion of the Information it was objected, that it is not good, for the informer ought to pray the forfeiture; but this belongs to the Court to Iudge of what shall be lost or for∣feited, the offence being a contempt, and therefore the conclusion good enough, and so for all these reasons, judgement shall be given for the King. Flemming chief Baron, touching the exceptions to the Information they are of no force, for the first Vsitat &c. it hath been well said, that the King needs not prescribe in any prerogative, for it is as antient as his Crown is, 2. E. 3. and for the conclu∣sion viz. that he in contempt &c. that deserves no other answer, but that which hath been given before, for it is enough, without doubt warranted by infinite presi∣dents, but for the Bar, it is an increase of the Defendants contempt, and no suf∣ficient matter to answer an indigested and confused tale, with an improper and disobedient conclusion, and there is in it multa non multum, but the conclusion is without president, or example, for he saith, that the imposition which the King had laid, is indebite, injuste, et contra leges Angliae imposita, and therefore he refused &c. in the case of Smith for Allom, the conclusion was moderate, and beseeming a subject, judgement if he shall have Impost by his grant, and in the case of Mines, the Defendant being a great Peer of the Realm, concluded upon his grant and interest in the soyl, and that he took the Mettal, as it was lawful for him, and did not confront his Soveraign with terms of injuste, indebitè, and the like, and the King as it is commonly said in out Books cannot do wrong, and it the King seise my land without cause, I ought to sue to him in humble manner, Humillimè supplicavit &c. and not with such terms of opposition in the Informa∣tion, and all his matter had been saved to him then as well as now, or he might have pleaded his matter, and said wherefore he refused, as it was lawful for him: but for the matter it is of great consequence, and hath two powerful objects, which it principally respecteth, the one is the King, his power, and prerogative, his Treasure, and the Revenues of his Crown, and to impair and derogate from any of these was a part most undutiful in any subject, the other is the Trade and Traf∣fick of Merchantdise, transportation in and out of the land of commodities, which further publick benefit ought much to be respected, and nourished as much as may be; the state of the question is touching a new custome, Impositions or customs, are duties or summs of money newly imposed: by the King without Parliament upon Merchantdise, for the augmentation of his revenues, all the questions arising in the case are, aut de personis, de rebus, vel de actionibus, viz. form and proceeding, the persons are first the King, his power, and authoritie. Secondly, not Bates the Defendant, nor the Venetians, but all men who im∣port Currants, the imposition is properly upon Currants, and for them, and is not upon the Defendant, nor his goods, who is a Merchant, for upon him no imposition shall be, but by Parliament. The things are Currants a forraign commoditie, and a Victual; the 5. s. for impost which is said to be great, the action formed or Process is the command by the great Seal, and the word there∣in are Petere et recipere, if they be sufficient, and if good without Proclamation or other notice, and how notice shall be given, and if it be good without an ad quod damnum, and the case of Mines in Plowden, which is the sole case in the printed Books of Law, to this purpose hath in it, foure reasons of the judgement.

• First, the excellency of the King, or his person.
• Secondly, the necessitie of Coyn for his state.
• Thirdly, the utillitie of Coyn for commerce.
• Fourthly, the inconvenience, if the subject should have such royal possessions;

and these reasons are not extracted out of the Books of Law, but are only reasons of poli∣cy,

for Rex est legalis et politicus, and reasons pollitick, are sufficient to guide Iudges in their arguments, and such cases and presidents are good directions in cases of judgement, for they are Demonstrations of the course of antiquitie, where upon my judgement shall consist upon reasons politick, and presidents; the case in Dyer 1. Eliz. fo. 165. was not like to the case in question; but only a confe∣rence, and the case there was, for an impost upon cloath, a domestick commo∣ditie; in this case, are recited their Grievances, but it was paid, and it is deni∣ed here; but there was no resolution thereof: at the same time, was the impost of Wines increased, and paid, and no petition or complaint thereof, and the cu∣stome of Englands commodities, were at the first imposed by the Kings will, for no Statute giveth them, viz. for Wool, Woolfels and Leather, and it was called the great custome, and that it was paid, it will not be denied, and yet now it is doubted, if the King can impose it upon forraign commodities, the King may restrain the person as it is in Fitz. Nat. Br. à fortiori he may restrain the goods; there was no custom for home Commodities, but the great custom aforesaid, which was after increased by Parliament, which was called the petit custome: it is a great grace in the King to the Merchants, that he will com∣mand, and permit this matter to be disputed between him and his subject, and the most fit place is in this Court, and the best rules herein are the presidents thereof, and pollitick reasons, which I shall give, and apply them to the particulars before recited, and first, for the person of the King, omnis potestas à deo, et non est potestas nisi pro Bono, to the King is committed the Government of the Realm and his people, and Bracton saith, that for his discharge of his office, God had, given to him power, the Act of Government, and the power to Govern: the Kings power is double, ordinary and absolute, and they are several Lawes and ends, that of the ordinary is for the profit of particular subjects, for the Execution of Civil Iustice, the determining of Meum, and this exercised by equitie end Iu∣stice in ordinary Courts, and by the Civillians is nominated Jus privatum, and with us Common Law, and these Laws cannot be changed, without Parliament, and although that their form and course may be changed, and interrupted, yet they can never be changed in substance: the absolute power of the King is not that which is converted or executed to private use, to the benefit of any particular per∣son, but is only that which is applied to the general benefit of the people, and is Salus populi; as the people is the body, and the King the head; and this power is guided by the Rules, which direct only at the Common Law, and is most pro∣perly named pollicy and Government, and as the constitution, of this body va∣rieth with the time, so varieth this absolute Law, according to the wisdome of the King, for the Common good, and these being general rules and true as they are, all things done within these rules are Lawful; the matter in question is material matter of state, and ought to be ruled by the rules of pollicy, and if it be so, the King hath done well to execute his extraordinary power; all customes be they old or new, are no other but the effects and issues of Trades, and commerce with forraign Nations, but all commerce and affairs with forrainers, all wars and peace, all acceptance and admitting for Currant forrain Coyn: all parties and Treaties whatsoever are made by the absolute power of the King, and he who hath power of causes, hath power also of effects, no exportation or importation can be, but at the Kings Ports, they are the Gates of the King, and he hath abso∣lute power by them to include or exclude whom he shall please, and Ports to Mer∣chants are their Harvours, and repose, and for their better securitie he is com∣pelled to provide Bulworks, and Fortresses, and to maintain, for the collection of his customs and duties, collectors, and customers, and for that charge it is reason, that he should have this benefit: he is also to defend the Merchants from Pirats at Sea in their passage, also, by the power of the King they are to be re∣lieved, if they are oppressed by forrain Princes, and his Treaty, and Embassage, and he be not remedied thereby, then lex Talionis shall be executed, goods for

goods, and Tax for Tax, and if this will not redress the matter, then war is to be attempted, for the cause of Merchants: in all the Kings Courts, and of other Princes, the Iudges in them are paid by the King, and maintained by him to do Iustice to the subjects, and therefore he hath the profits of the said Courts: it is reasonable that the King should have asmuch power over forrainers, and their goods as upon his own subjects, and if the King cannot impose upon forrain Commodities a custome, aswel as forrainers may upon their own Commodities, and upon the Commodities of this land when they come to them, then forrain states shall be inriched, and the King impoverished, and he shall not have equal profit with them, and yet it will not be denied, but his power herein is equal with other states, and so much for the person of Bates the subject: it is said, that an imposition may not be upon a subject without Parliament: that the King may impose upon a subject, I omit, for it is not here the question, if the King may impose upon the subject or his goods, but the impost here is not upon a subject, but here it is upon Bates, as upon a Merchant, who imports goods within this land, charged before by the King, and at the time when the impost was imposed upon them, they were the goods of the Venetians, and not the goods of a subject, nor within the land, but only upon those which shall be after imported, and so all the arguments which were made for the subject, fail; and where it is said, that he is a Merchant, and that he ought to have the Sea open and free for him, and that Trades of Merchants, and Merchandise is necessary to export before, the Surplus of our commodities, and then to import other necessaries, and so is favourably to be respected, as to that it is well known, that the end of every pri∣vate Merchant is not the common good, but his particular profit, which is only the means, which induceth him to Trade and Traffick, and the impost to him is nothing, for he rateth his Merchandise according to that, the impost is imposed upon Currants, and he who will buy them, shall have them subject to that charge, and it is a great contempt to denie the payment, and so much for the person: I will give a brief answer, to all the Statutes alledged on the contrary part, with this exposition, that the subjects and Merchants are to be freed of Maletolt, and this was Toll unjustly exacted by London, Southampton, and other Ports within this Realm, but they are with this saving, that they pay the duties and customes, due, or which hereafter shall be due to the King, which is a full an∣swer to all the Statutes; the commoditie of Currants, is no commoditie of this land, but forrain, and whereas it is said, that it is Victual and necessary food, it is no more necessary then Wine, and impost for that hath been alwayes paid, without contradiction, and without doubt, there are many drinkers of Wine, who are also eaters of Currants, that which should be said Victual for the com∣mon-wealth is, that which ariseth from Agriculture, and of the earth within this land, and not nice and delicate things imported by Merchants, such as these Currants are, and are rather delicacy or Medicine then a Victual, and it is no reason that so many of our good and staple Commodities; should be exported to Venice, for such a slight delicacy, and that all the impost shall be paid to the Ve∣netians for them, and the King should have none for their Commoditie, and although that the price be thereby raised, this hurteth not the Merchant, nor no other, but only a smal number of delicate persons, and those also who are of most able and best estate, for their pleasure, but when the King is in want, he is to be relieved by a general imposition or subsidie upon all the subjects; the imposition which is here said, to be so great, and intollerable, is an evil president, for if he may do so much, he may do it in infinitum, and upon all other Merchandise: for the Imposition I say, that it is reasonable, for it is no more then foure times so much then was before, and that there hath been asmuch done in antient time in other Im∣posts, as in that of Wooll, which was at first but an Noble a fack, and is now at 50. s. the Impost of Wine was in antient time 3. s. 4. d. a Tun, and now is foure Marks, the lessening of custome and Impost is much to be guided, by in∣telligence

from forrain Nations, for the usage and behaviour of a forrain Prince may impose a necessitie of raising custome of these Commodities, and so it was in the particular of Currants, the Duke of Venice Imposed upon them a ducket by the hundred, which by the wisdom of the state was foreseen to be a means, that in time will waste and consume the Treasure of the land, whereupon the Queen writ to the Duke, that he would abate his custome, which he refused, wherefore to prevent, that so great a quantitie of this Commoditie should not be imported into the land, the Queen granted to the company of Merchants of the Levant, that none should bring in Currants, but by their Licence, and those Merchants Imposed upon them who did Import, which were not of their company, if he were denizen 5. s. if he were a stranger 10. s. and this was paid by the Mer∣chants without contradiction, but there was a clause in the Patent, that when the Duke of Venice abated his Impost, that the Patent should be void, and after the Duke was Solicited again, that he would abate the Impost, but he refused, and the first Commission was recalled, and after a new grant was made, which was executed all the Queens life time, which was as aforesaid; and where∣as it is said, that if the King may Impose, he may Impose any quantitie what he pleases, true it is, that this is to be referred to the wisdom of the King, who guideth all under God, by his wisdom, and this is not to be disputed by a sub∣ject, and many things are left to his wisdome for the ordering of his power, ra∣ther then his power shall be restrained, the King may pardon any fellon, but it may be objected, that if he pardon one fellon he may pardon all, to the damage of the Common-wealth, and yet none will doubt, but that is left to his wisdom, and as the King may grant a Protection for one year, so it may, be said, that he may grant it for many years, which is a mischief, and so ought to grant none, which will not be denied but that he may, so it may be said, that the Queen may grant a safe conducted a stranger, for if she may do that, then she may grant to all, which would be but then same to the inhabitants, and yet it will not be denied; but that she may grant to any or all, as in her wisdome shall seem convenient, and the wisdom and providence of the King is not to be disputed by the subject, for by in∣tendment they ••••mot be severed from her person, and to argue a posse ad actum to restrain the King and his power, because that by his power, he may do ill, is no argument for a subject, to prove the power of the King by presidents of anti∣quitie in a case of this nature may easily be done, and if it were lawful in antient time, it is lawful now; for the authoritie of the King is not diminished, and the Crown hath the same Attributes, that then it had, and in antient time such Imposts were never deuied, and that which is given by Parliament is not an Impost but a subsidie: in antient time small Traffick or intercourse was betwixt the inha∣bitants of this land and forrain Nations, so that the principal custom was of the Commodities of this land, which were Wolfels and Leather, and that the custom for Wools was an Noble for a Sack, was an imposition, as it appears by the Statute of the 14. of Ed. 3. cap. 21. it is objected, that Merchants cannot be restrained, but only persons suspected, as the writ of ne exeat Regnum is, but as it is said in Dyer, before cited, it is without doubt, that the cause is not Tra∣sable, and that the King may inhibit any man, for if it be not Traversable, it is not material, and the reason wherefore any man may be restrained, is for defence of the Realm, and it may be done by privie Seal, privie signet, great Seal, or Proclamation, and that appears by the writ of licentia Transportandi in the Register which containeth licence for one to Travail, and limits him to what place he shall go, and when he shall return, and with what goods; that the King may prohibit body and goods, and when a man is beyond the Seas, the King may command him to return, and if be doth not obey such command, he shall forfeit his good: now 〈◊〉〈◊〉 restraint of commodities many presidents are to prove it in the time of H. 3. and E. 1. it was forbidden, that no Wooll should be Transported into Flanders, and in E. 1. a Comu••••ssion was awarded to inquire, who had done a∣gainst

this ordinance, and the goods of one Freeston were seised, therefore, an Attachment awarded against the Ships of Hull, for Transporting contrary to the ordinance, in the 22. E. 1. there it was forbidden, that no Merchant should Trade with France, for, Trade with forrainers is a forrain thing which is only referred to the King: in the 17. H. 6. all Merchants were forbidden to import wares from Flanders into this land, and the Cittizens of London complained of certain Merchants, which had done contrary to this ordinance to the Lords of the privie Councel, which I have here ready; for the Record mentions it, and the Kings Attorney was commanded to exhibit an information against the Merchants, which he did, and they pleaded that the Proclamation was made, here upon Ea∣ster Eve, and that they were then at Bruges, and upon the Wednesday after Bruges Market they bought the wares before notice of the Proclamation, and before it were possible, that they could have notice of it, and pray judgement &c. and so much for restraint of the person and goods, by the Statute of 31. E. 3. Cap. 8. times were appointed in which Wools should be Transported, and also Cap. 9. Authoritie was given to the Chancellor and Treasurer, to defer the passage at their pleasure, but that this was the Common Law, and that the King by his su∣pream Authoritie might do it, it seems to me it is apparant by the Statute of the 26. H. 8. Cap. 10. which gives power to the King by his letters Patents, to li∣mit the time for importing of Wines against the Statute of 23. H. 8. Cap. 7. which was no more but a restoring of his power abridged before, and so was the Statute of 31. E. 3. for otherwise the Parliament would never have given him Authoritie to contradict an Act of Parliament by his letters Patents, or to revive these Acts: Impositions are meerly a new custome, and so are they stiled in the Margent of the Roll of the 3. E. 1. in this Court, where it is Recorded, that the King had assigned Merchants to receive (using the same words which are used here) half a Mark for every Sack of Wool, and a Mark of every Last of Lea∣ther, and that if the Merchant who is so appointed Transport any after, that it shall be forfeited, and out of this record I observe, that three hundred Pelts make a Sack of Wooll: from the 21. Ed. 1. unto the 28. E. 1. the customs for Wools was 40. s. a Sack, and in 25. E. 1. the Imposition of Maletolt was repealed by Act of Parliament, which Maletolt was an increase of Impost upon staple com∣modities, and therfore was given to the King a great subsidie with this cause, that it should never be drawn into president; which shews, that this Maletolt was rightly imposed, otherwise the Parliament would never have given him so great a Recompence for the Abrogation of it: but after in the 13. of E. 3. because it was a thing of so great consequence to the Crown. it was revived and made 40. s. for Wool, and Woolfels, and 3. l. for Leather for denizens, and double for stran∣gers: in the 14. Ed. 3. a Petition in Parliament to abate it, and for a great sub∣sidie it was released, and in the 18. of Ed. 3. it was again revived, and a new peti∣tion was made in Parliament, and this petition was continued until the 36. of Ed. 3. and then it was abated, and also by the 45. E. 3. it was again abated, so that it seem, that between these times it was revived, but after it did not continue long, for in 48. E. 3. it was again revived, and for Wool the Impost was 50. s. et sic de singulis, and in 1. R. 2. after it was answered to the King, as it ap∣pears in the accompts here, and in 5. R. 2. it was again suppressed by Parliament for a subsidie granted to the King with a saving of antient rights: all these Sta∣tutes prove expresly, that the King had power to increase the Impost, and that upon commodities of the land, and that he continually used this power notwithstan∣ding all Acts of Parliament against it, and so much for commodities of this land: but for forrain commodities it appears by no Act of Parliament, or other president that never any petition or suit was made to abate the Impost of forrain commodi∣ties, but of them the Impost was paid without denial; as for example, for Wines in the 16. E. 1. as appears in this Court upon Record, it was commanded to the Bailiff of Dover to levie and Gollece of every Tun of Wine of a stranger 4. s. and

in the 22. E. 1.2. s. thereof was released, at the suit of the French Ambassador, in the 26. of E. 3. the King granted priviledges to Merchants strangers, but there was given for it an increase of custome, and this was answered as it appears upon accompt in the times of E. 1. and E. 2. the case of Allom was as it hath been reci∣ted by my brother Clark: it is objected, that the Merchant ought to have free passage upon the Sea, but that both not conclude the King, but that he shall have his Impost if he cometh into his Ports, and here the question is for Merchandise after that they are brought into the Port, but it is said, that they cannot come in∣to the Port but by the Sea, that is true, but if this reason should hold then the King could not grant Murage, Pontage, and the like, because the common Channel to them is free, and Average is for securitie aswel as Ports: another objection, that the Defendant here is not restrained, but that is answered, for if a pain be inflicted upon them who import, this is an inhibition upon a pain to all; another objection was, that there was no consideration of the Imposition, and if it be demanded what differences between the cases; I answer as much as is between the King, and a subject, and it is not reasonable that the King should express the cause and consideration of his Actions, for they are arcana Regis, and no satisfaction needeth, for if the profits to the Merchant faileth he will not trade, and it is for the benefit of every subject, that the Kings Treasure should be increa∣sed: an objection was made against the form of proceeding, because it was by the great Seal to the Treasurer, and that he by the customers, Peteret et recipe∣ret, and this could not be better, as it was answered before: it was objected that it should be by Proclamation, and that needs not, for it toucheth not all the subjects, but only those who are Traders in Merchandising, the best and aptest means to give them notice by the customers, and it is alledged by the informati∣on expresly, that he had notice. It was lastly objected, that there ought to be a quod damnum in the case before the grant, that is not so, for that shall be only when the King granteth any thing which appertaineth to his prerogative, and not when he maketh Charters, to his servants to levy his duties due to his Crown, wherefore I think that the King ought to have judgement, which was after given accordingly.

6. Jac. in the Exchequer.

An Information against Sir Edward Dimock.

THe Bishop of Carlisle called John May in A. 26. Eliz. made a lease in rever∣sion to Queen Eliz. of the Mannor of Horncastle, whereof the Bishop was seised in right of his Bishoprick, and this was for 4. years, and it was acknow∣ledged before Commissioners appointed for this purpose, and the Bishop prayed it to be inrolled, and this prayer is indorsed but not inrolled, and in 37. Eliz. this lease was confirmed by the Dean and Chapter in the life of the lessor, and in 44. Eliz. the successor Bishop leased this land to Sir Edward Dimock, the Statute of the 43. of Eliz. hath a proviso, that it shall not extend to any lease before made by the Bishop of Carlisle to Queen Eliz. then not inrolled, and after the death of the Queen, viz. 5. Jac. this lease in 26. Eliz. is returned, and certified to be acknowledged, and is then also inrolled, and Sir Edward Dimock had entred, and was in possession by vertue of his lease, in the 3. Jac. and the information was for entrie and intrusion in 3. Jac. and upon the Bar all this matter was discove∣red, and a demurrer joyned George Crook for the King, conceived that the lease made in the 26. Eliz. is good, first he said, that although the Queen cannot take an inheritance of freehold without matter of Record, yet she may take Chattels upon a surmise made, that they were granted unto her, and therefore he vouched 21. H. 7. fo. 19 that an Obligation may be granted to the King without inrol∣ment of the grant, and 40. Assise pl. 35. Brook tit. suggestion pl. 5. it appears

that the King shall have a Chattel by a demise by parol upon a suggestion made thereof in the Exchequer, without a Record, and in the 15. H. 7. fo. 15. the Kings Baylie who is not of Record, may be compelled to accompt upon a suggesti∣on made, Brooks suggestion pla. 31. and in the 37. H. 6. fo. 7. & 18. if the King gives goods with his hands, this is good, although no record be made thereof, because it is but a Chattel, and by the same reason he inferred, that he may also accept of Chattel without a Record: but admitting that he cannot take without a Record, it seemeth that here is a thing well enough Recorded, to intitle the King after the return made by the Commissioners, for the Commissioners are officers of Record to this purpose, and they endorse the prayer of the partie to have it Recorded, and this being after the return is a sufficient Record to intitle the King, and he vouched the 2. H. 7. fo. 10. where the servant of Iustice Catesby after the death of the Iudge made a return, and this was good, and the 8. H. 4. a Record certified by a Iudge after he was displaced, and 43. Assises if a Coro∣ner makes his Rols and dies before he certifie them, they may be certified after his death, and so here, this acknowledgement and prayer being certified may at any time after be inrolled, and although it seemeth by the Book in the 19. Eliz. Dyer fo. 355. that a grant being made to the King and acknowledged before one of the Masters of the Chancery, and inrolled in the time of another King maketh not the Grant good, yet he said, that it was adjudged for another grant made to the King by the Duke of Somerset, and acknowledged before one of the Masters of Chancery, and inrolled in the time of another King was good enough to per∣fect the grant, and this was by a grant made by the Duke of Bozoms Inne in London, and he said, that it is not reasonable, that the Law should adjudge otherwise, for it may be, that the Clark will not inroll it untill such a time, viz. a moneth, within which time the King may die, should it now be reasonable, that it should not be inrolled at all, he said it was unreasonable, and he said, that it appeareth by the 37. H. 6. fo. 10. that a deed delivered at the Kings Coffers is good enough to avoid his lease made in the 44. Eliz. for although that it be true that a grant of a reversion shall never operate to the destruction of a right of a third person, yet it seemeth that an Act commenced, may be confirmed well enough to the destruction of a mean interposed Act, and it seemeth that the inrolment here, is but a confirmation of a precedent lease, and not a relation to make a thing which was not before, and therefore to examine what thing an inrolment is, and it seem∣ed to him that it is no matter of Record, as it appears 24. E. 3. and 29. H. 8. fo. 15. and therefore it appears by Wymacks Case Cook L. 5. that a deed inrolled ought to be pleaded, hic in Curia Prolat. which proveth, that the deed, and not the inrolment thereof is the thing which passeth the estate, and therefore he vouch∣ed the case in the 6. E. 6. Brook title faits, if one joynt Tenant sells all his land in D. and after his companion dieth, and then the deed is inrolled, yet a moitie only shall pass: and 41. Eliz. Cook Perimans Case lib. 5. if a man make a feof∣ment of lands, and inroll the Deed within the Mannor, as by the custome it ought to be, yet the inrolment shall pass nothing, and therefore it is there said, the in∣rolment may be good enough after the death of the parties, so by the same reason aforesaid, it is put in the same Case of Perimon, and also in Butlers and Bakers Case Cook lib. 3. that if a man deliver a writing as an escrow, to be his Deed up∣on certain conditions performed, and after the Obligor, and the Obligee die, and then the Conditions are performed, the Deed is good, for there was traditio in∣choata in the life of the parties, and this being after consummated, takes his effect by force of the first delivery and acknowledgement, and therefore also he said, that it was lately adjudged, that if two men are mentioned to be bound by one Obli∣gation, and the one seals at one day, and the other at another day, this is as good, as if it had been at one day, and therefore he said, that there is no doubt but if a lease be made to the King by a Bishop, and after another lease is made also of the same land, or if the Bishop die, yet if after the first lease be inrolled, this

is good, and therefore also he cited a case to be adjudged in Banco Regis 41. Eliz. between Collins and Harding, that if a man be seised of freehold, and Coppi∣hold land, and makes a lease of both for years with licence rendring rent, and after he grants the reversion of the freehold, and makes a surrender of the Coppihold, to the use of the same person, and an attornment is had for the freehold, and the presentment of the surrender for the Coppihold, is not made untill a year after, yet he in reversion shall have an action of debt for all the rent, for the presentment of the surrender is but a perfection of the surrender before made, also he cited the case as I observed him to this effect, in the 9th. of Eliz. in the Abbot of Colche∣sters Case, where he said, that the Abbot of Colchester committed treason, and after made a lease for years, and then he surrendred to the King all his lands, and after an office found the treason, and it was holden the lease is good against the King, who took by the surrender, and not by the treason committed before, but as Walter said, the case was adjudged, that the King should avoid the lease, for now he is in by the treason paramount the surrender.

Phillips against Evans.

IN an Ejectione firmae brought up three acres in the forrest of Kevington in the Countie &c. the Defendant pleaded not guiltie, and the Venire facias was a∣warded de vicineto of the forrest, and the Defendant moved in arrest of judge∣ment, because the Venire facias de vicineto of the forrest was not good, for as Stephens, for the Defendant said, that a forrest and the name thereof, is but a place priviledged for Venison, and not a place certain from whence a Venue may come, and it was said, that in the 16. Eliz. in Banco Regis in the Lord Padgets Case a Trespass was brought of 3. Acres of land in Beer-wood, and the venire facias was awarded de vicineto, de Beer-wood, and the chief Baron Tanfield said, that in this case the venire facias was not well awarded; and so it was holden in the Kings Bench, and therefore he would be advised in this Case; and after at another day it was moved, and then the chief Baron said, that he had per∣used the Books touching the Case in question, and that it appears by the 47. E. 3 fo. 6. by Fuchden, that a forrest is many times out of any Parish, and there∣fore shall not be intended to be within any Parish, and he said, that the Defen∣dant in this case ought to have pleaded, that the forrest was within such a Parish, and demanded judgement, if he shall be answered without alledging it to be within a Parish, and that otherwise judgement ought to be given for the Plantiff, and so he said, that it was now lately adjudged in the Kings Bench, where a man was indicted for Hunting in a forrest, and a venire facias was awarded de Foresta and good, and he vouched also the 8th. of H. 8. in Savages Case, and the 7. of E. 3. and Baron Altham Accorded; and he vouched also the Book of the 18. of E. 3. fo. 36. where it is said expresly, that if shall not be intended to be within a Pa∣rish, except it be shewed in the pleading on the other side, and he vouched also 27. H. 8. fo. 12. and then all the Barons agreed, that judgement shall be given for the Plantiff.

Airie and Alcock.

THe Case was argued again, between Airie and Alcock concerning the mis∣naming of Corporations, which was argued before, as appeareth fo. and Thomas Stephens the Princes Attorney argued, that the lease is void by the rea∣son of the misnosmer, and he observed the Misnosmer to be principally in these two material things.

• First, where the foundation was, by the name of the Hall, or the Colledge of the Queen &c. the presentation of the Parson, and also the confirmation of the lease made by the name of the Queens Colledge &c. omitting the word (Scholers) which should immediately precede the word Aulae Reginae which he held a material variance;
• the second variance he observed to be thus, that

• where the foundation was by the name of the Hall or Colledge of the Queen in Oxford, the presentation and confirmation of the lease was, by the name of Pro∣vost of Queens Colledge in the Vniversitie of Oxford, so that the word Vniver∣sitie was added, which was not in the foundation, and to prove that these varian∣ces were material for the avoiding of leases, he cited the case often remembred, in the argument before, which conceived Merton Colledge in Oxford;

and the parties to this case, were Fish and Boys, which was in Trin. 30. Eliz. Banco R. Rot. 953. wherein the case was, that the said Colledge was incorporated by the name of Warden and Scolers of the house or Colledge of Scholers of Merton in the Vniversitie of Oxford, and that they made a lease by the name of the War∣den, and Scholers of the house or Colledge of Merton Colledge in Oxford, so that the word Scholers, which did immediately preceed the word Merton in the foundation is omitted in the lease as in the principal Case: also where the word Vniversitie was added in their Corporation the same was omitted in the lease, whereas on the other side, this was not mentioned in Airies Case to be contained in the foundation, but added in the lease, and he said, that for these variances in Merton Colledge Case, the lease was holden to be void, which he held to be all one with our case; but he agreed, that in divers cases variances in addition of sur∣pluage shall not be hurtful in a lease, as appears by 21. and 22. E. 4. and there∣fore though in the principal Case, the word fellows was added in the lease, which was not in the foundation he would not argue, that this should be any variance to hurt the lease; Hern Baron seemed, that the verdict is not sufficient to move him to give judgement for the Plantiff; for he said, although it be admitted, that the lease by reason of the variance is not good, yet the verdict doth not sufficiently finde that Doctor Airie is a person, who may take advantage of the invaliditie thereof, for it appeared not, of whose presentation Doctor Airie came, to have the Parsonage, for although that it should be admitted, as it is said in Heckers Case 14. H. 8. that here might be Parson of his own presentment, yet it is not found that he did so here, and he said that in every quare Impedit it ought to be expressed, what person made the presentation; to the variance he thought the lease to be good, notwithstanding that, for he said, that the word (Scho∣lers) is not added in the foundation as a part of the name of a Corporation, but only to express what kinde of Colledge this should be, viz. to distinguish it from a Merchants Hall or Colledge, and therefore though the word Scholers be put in, yet we properly call it the Queens Colledge, and not the Queen Scholers Colledge, for it is not of necessitie that the Scholers of the said Colledge, should he the Queens Scholers, but that they are Scholers of the Queens Colledge, and he vouched 2. H. 7. Fitz. Titles Grants, and as to the case of Merton Col∣ledge cited by Stephens he said, that in that Case, there was a main imperfection in the verdict, which as he thought might move the said judgement to be given as it was, and not the matter in Law, for they did not finde, that the lessor was war∣den of the Colledge at the time of the lease made; also he vouched Cook lib. 6. Sir Moil Finches Case, and he vouched Sir Peter Seawels Case, where in a lease made by a Corporation, that these words ex fundatione Regis E. 6. which were part of their foundation were omitted, and yet the lease good, and he cited also the case of the Bishop of Peter Bourough, where the Corporation was by the name of Episcopi de Burgo Sancti Petri, and a lease was made by the name of the Bishop of Peter Bourough, and the lease good, and that no difference in sub∣stance, and if a Corporation were made by the name of Scholers and fellows, and in a lease the word fellows is omitted, yet it is good; and therefore in the prin∣cipal Case, it seemeth, that the omission of the word fellows is not material: also he said, that the addition of the word Vniversitie, which is no part of the Corpo∣ration, is not fatal to the lease, for in the Lord Norths Case 36. & 37. Eliz. the addition of the word Vniversitie, or the omission thereof, was holden of no force to avoid the lease. Altham Baron Contra for the matter in Law: but for

the insufficiency of the verdict he thought, that there ought to be a new venire fa∣cias, for no judgement may be given for any partie; for the insufficiency of the ver∣dict, for it is not found, that Doctor Airie was presented. And therefore he can∣not have an action, for it cannot be intended, that his presentation was by a better name then the other presentation was, and he cited the 11. H. 7. fo. 8. and 17. E. 3 title quare impedit, he who will avoid a presentation, ought to intitle him∣self. Secondly, it is not found here that the Church is void sufficiently, he said, that if a Provost present himself, this is void meerly, and he cited Heckers Case, it is not found here that Doctor Airie entred post inductionem, for it is said, that he entred ante praedictum tempus quo &c. but not that he entred after induction, and therefore it may be he entred before, and then it is not good: but for the mat∣ter of Misnosmer it seemeth, that this avoids the lease contrary to Baron Herns opinion, wherefore the chief Baron Tanfield advised the parties to agree, to have the true case rightfully found by a new special verdict, for he said to Doctor Airie, that no judgement can be given for him, what opinion soever himself, and Baron Snig should hold, the which they would not deliver, for Snig Baron said, that by 40. Assise that if a man be indebted to the King, and deviseth all his goods to A. and the Executor assenteth, and after this debt is demanded, the Legatee in this Case shall be charged for this debt, and so was it ordered by him and Tanfield as reasonable and equal: but Hern and Altham contrary, for it was the folly of the Executor to assent to the Legacie, and they said, that it was so adjudged, and resolved in Sir William Fitzwilliams Case in the Exchequer Chamber by an English Bill.

Upon a motion made by Walter, it was shewed by him out of a Record in the Tower, that in the 31. E. 1. a Statute was made to discharge Merchants stran∣gers from the payment of Prisage of Wine, and allowed by the Court, that no Merchant shall be chargable for the prisage of Wines: see more of this Case in the Tit. of Doublin in Ireland.

An Information against Sir Edward Dimock.

THe Case of the Information against Sir Edward Dimock, which was the fast Term, was now argued again by Thomas Crew for the King; but his ar∣gument I have not written. Walter for the Defendant said, that the Commissi∣on for taking of the acknowledgement of the lease, was not returned in the life of the Queen, nor the case was not put in this case in the Queens life time, as it was in divers of the cales cited of the other side, and therefore it differs from them: in this case he observed foure points.

• First, if this lease should be good, if it were never inrolled.
• Secondly, admitting that it cannot, if here be such an inrolment as is requisite.
• Thirdly, admitting that the fease is good without inrolment, or with this inrolment, then if this can avoid the lease made in the Interim.
• Fourth∣ly, if no lease be good until inrolment, then if the confirmation being made before the inrolment can be a good confirmation.

And as to the first, he conceived, that the Cases put of personal Chattels, vested in the King without Record are good Law: but here it is of a real Chattel, and he said, that there are three reasons to prove, that personal Chattels are in the King without Record.

• First, they are in judgement of Law trivyal.
• Secondly, they are perishing, and of no continu∣ance.
• Thirdly, the Records would be infinite, if they should be of Record, but there are no such reasons to prove, that real Chattels should not be of Record, for in the judgement of Law, they are of greater value, and are also more permanent, and therefore Thrope saith in the 18. E. 3. that it had been adjudged, that Livery ought to be made upon a lease for 100. years, also lessee for years shall have aid;

but lessee at will shall not, also it appears by Cook lib. 4. in Sir Andrew Corbets Case, that a Gardian shall not avoid a lease for years: also the Statutes regard leases for years, and it was holden in Gravenors Case, in the 23. Eliz. in the Court of Wards, that a woman shall forfeit her joynture, for making of a lease for 40. years by acceptance of a fine, and reservation of a rent: also lessee for years

may falsifie a recovery: also it is agreed of the other part, that the King cannot take an use without Record, and 6. E. 6. Dyer Bourchers Case, the King can∣not take an use without record: also he said, that in every case, where a Deed or Record is requisite for a freehold, the same conveyance is also requisite for a lease for years: and therefore if a freehold be conveyed to a body politick, it ought to be by Deed, the same Law if a lease for years be conveyed to them, and so if a lease for years be made, of a hundred or rent; this ought to be by Deed, by 15. H. 6. fo. 38. also in Bayes and Norwoods Case 41. Eliz. it was adjudged, that a lease for years cannot be made to a corporation without Deed, 2. E. 6. Brook Tit. Recognizance 19. a man cannot make a surrender to the King without Re∣cord: the second point he said, that the inrolment being made after the death of the Bishop, Lessor, or of the Queen Lessee, is no sufficient matter of record; for in judgement of Law nothing shall pass out of the Lessor until the inrolment, and therefore the inrolment is the thing which maketh the estate, and not only which perfecteth it, and in all cases, as appears in Say and Fullers Case, the thing which maketh the estate or which perfecteth it, ought to be in the life of the Lessor, and therefore if a reversion be granted, attornament ought to be made in the life of the grantor, 40. Assises pla. 19. & 16. Assises pla. 15. and Cook lib. 2. in Tookers Case, and to prove further, that the thing which ought to perfect the estate, ought to be in the life of the grantor, or feoffor, he vouched 31. E. 3. tit. abbe 10. and 41. E. 3. and temps H. 8. tit. feofments, if a feoffe enter not by force of a livery within the View, this is not good, and if a Bishop make a lease, and the Chapter do not confirm it until after his death, it is not good, by 31. E. 3. tit. Abbe 10. also here to prove, that in respect of the Queen Lessee died before in∣rolment, that the lease is not good, for this purpose he vouched 24. E. 3. and the 11. E. 4. and the 7. H. 4. and 21. E. 4. that Chattels granted to the King shall go to the successor, and not to the Executor; and because nothing vested in the Queen, nothing can vest in the King as successor, for a thing cannot be vested in one as heir or successor, which was never vested in the Ancestor, and he vouched Bullocks case in 10. Eliz. Dyer & 21. Ed. 4. of election: also it cannot vest in the King Primarily, because he was never partie to the Iudenture of lease, and he cited a case to be adjudged accordingly, betwixt Founds and—29. Eliz. & 11. H. 7. that he who is not partie to the Indenture, shall not be primarily bound, nor shall primarily take by the same Indenture, and it is inconvenient, that this should be a good inrolment, and where it was said of the other part, that a bargain and sale is good enough, although it be not inrolled in the life of the parties, so that it be inrolled within 6. moneths, to that he well agreed, for by the bargain and sale an use passeth at the Common Law without help of the Sta∣tute, and this without inrolment, and the Statute of inrolments restraineth it not, but that it may pass well enough at this day, and so the Statute perfects it, so that it be within 6. moneths indifferently, and therefore it is good, notwith∣standing the death of the parties, and he concluded with the Book of the 19. Eliz. Dyer fol.—and wheras it was said to be resolved contrary in an authoritie not printed, he said that he believed the printed Book, and vouched also the case cited before, in Butlers and Bakers Case, Cook lib. 3. to the third point it seem∣ed to him, that although the inrolment be good; yet that should not avoid the e∣state by relation, for a relation is not good to avoid mean conveyances, without an antient right, as if the Kings Villein purchase lands, the King now hath right, and therefore an office found after, shall relate to avoid all mean conveyances, and he said, that relations are not so certain, wherefore a man may make a ground, for every case hath his particular reason, and therefore to some purposes, an attor∣nament ought to relate; but to other purposes it ought not to relate, and there∣fore an attornament cannot relate, to intitle a grantee to rents due between the grant and the attornament, and so in this case, if the inrolment had been in the life of the Bishop and of the Queen, yet it could not have given to her the mean

profits between the grant and the inrolment, and he vouched a case in Butlers and Bakers case, and the 11. H. 7. that a relation shall never be prejudicial to a stran∣ger for his estate lawfully executed, and therefore if a feofment be made to a hus∣band and wife, and to a third person, and after the husband and wife are divorced for a precontract, yet they shall take but a Moitie, as if they were married, also it is a rule, that an estate vested cannnot be made Tortious by relation: see But∣lers and Bakers Case; and he vouched a case to be adjudged, betwixt Wind gate and Hall in the Kings Bench Mich. 31. & 32. Eliz. that if a Statute be acknow∣ledged to a Common person, and another Statute to the King by the same Conu∣sor, and after the Statute acknowledged to the common person is extended, and the Conusee in possession, and also the King sues execution of his Statute, he shall not avoid the estate lawfully executed in the first Conusee, as it was there holden, but the Barons said, una voce, that if such a case should come in question before them, they would hold the contrary for the King; and for the fourth point, viz. if the confirmation were good, being made before inrolment of the lease, and so upon the matter before any lease in being, to which the Counsel of the one part nor of the other were provided to speak. Walter said, that the confirmation was not good, for Littleton saith, that a thing or estate which is not in being cannot be confirmed; and Tanfield chief Baron said, and others also, that this was the principal point of the case, and the great doubt is of the other part, viz. that this is not good, and therefore advised them to argue it at another day, and Wal∣ter said, that the confirmation is not good, in regard it is not of record nor inrol∣led, and he vouched the 26. of E. 3. fo. 20. that the King cannot take notice of any thing without record; the next Term upon the first Tuesday it was appointed to be argued again: and Doddridge the Kings Serjeant observed foure points.

• First, if any inrolment be necessary in the case.
• Secondly, admitting that the inrolment be requisite, if here be a good inrolment, being made after the Kings death.
• Thirdly, if the confirmation of the Dean and Chapter be of necessitie to be inrolled.
• Fourthly, admit that the confirmation need not to be inrolled, and that the lease ought to be inrolled, then if this confirmation be good, because it was before the inrolment of the lease: as to the first he conceived, that aswel a Chattel real as a thing personal may vest in the King without Record, for it should be inconvenient, that Chattels should be inrolled.
  • First, for the infinitness.
  • Se∣condly, for the small value of them in the judgement of Law, and he vouched 40. Assises pla. 35. of a Legacy devised to the King, and 37. H. 6. fo. 10. if a Chat∣tel be given to the King, there needeth no record, and the 28. E. 3. fo. 23. the King brings a quare impedit upon a grant of the next presentation without record, and yet it was good 21. H. 7. fo. 19. an obligation may be granted to the King without record 35. H. 8. Brook prerogative, and 33. H. 6. the Baily shall have aid of the King, and he vouched also 2. E. 6.

Brook prerogative, and 35. H. 6. fo. 3. Fitz. villinage, and Brook prerogative, and the 21. H. 7. fo. 8. if a man possest of a Term be outlawed, this Term is in the King by outlawry without Record: to the second point, he thought that the inrolment was good after the Queens death, for the inrolment ought to relate, as it appears by 1. H. 7. fo. 28. and this relation disaffirmeth the mean estate, and gives also the mean profits, and as to the point of relation, he vouched Nichols Case; Plowden where the en∣trie of the heir once lawful was made unlawful by relation, and he vouched also 14. H. 8. fo. 18. in the end of Wheelers Case, and by the 4. H. 7. fo. 10. a man seised of land is attainted of Treason, the King grants this land to A. the person attainted commits a Trespass, and is restored by Parliament, the Patentee shall never have an action of Trespass, because this restitution takes away the cause of action, and to prove that the inrolment may be well enough after the Queens death, he said, that the said case put to be resolved in the 19th. of Eliz. Dyer fo. 355. concerning the Duke of Somerset, was after adjudged contrary to the said resolution, and he said, that the case concerning parcel of the land contained in

S. the Deed come in question in Parliament, in the 43. Eliz. and it was then com∣manded, that the Deed should be inrolled, and also he compared it to a case put in Shelleys Case, that the heir shall have land as by discent from his father, al∣though that the conveyance be not inrolled in the life of the father: also he said, that the Queen dieth not as to her body politick: to the third point he said, that the confirmation need not to be inrolled, for it passeth nothing and is but a bare assent, and therefore differeth from the case of Patron and Ordinary, and of a disseissee, for the disseisee hath right to grant, end the Patron and Ordinary have interest in R. but Bishops are seised in their own right, and therefore their lease wants the approbation only of the Dean and Chapter, and he vouched Cook. lib. 3. the Dean and Chapter of Norwiches Case, and the writ of Sine Assensu Ca∣pituli in the Register proveth it, for the tit. confirmation pl. 30. observes, and Littleton in the end of his chap. of discontinuance saith, that a parson may charge the Gleab by the assent of the Patron and Ordinary, and the opinion of Brook in the case of the 33. of H. 8. tit. confirmation pl. 30. agreeth to this opinion, and so are some opinions in the 7. H, 4. fo. 15. & 16. and he said, that this point was adjudged accordingly in the first of Ma. but he had not the record thereof; and therefore he would not insist upon it, and he vouched 1. and 2. of Ma. Dyer fo. 106. and Cook lib 6. fo. 15. Hodges Case, that the acceptance of the Patron is good enough to make a confirmation; to the fourth point he said, that the con∣firmation was good, notwithstanding it be before the inrolment of the lease, for the lease shall stay his operation, until all the Ceremonies be used for the per∣fection of the estate, and he vouched Littleton fo. 122. and 6. E. 6. Dyer fo. 69. where a parson made a lease to commence after his death, the Patron and Ordina∣ry in the life of the parson confirmed it, and this is good, and he vouched also, Anne Maiowes Case Cook lib. 1. where the father confirmed the sons grant when he had but a possibilitie, and yet good, and he vouched Dyer 2. & 3. Eliz. fo. 194. where a grant was incertain, and the inception was before, the confirmation after makes it good, and therefore he said, if disseissor and disseissee bargain land, although it be but a confirmation of the disseisee, which may be well enough with∣out inrolment of the Deed by a bare delivery, yet this shall hinder the operation until the inrolment of the Deed, which should pass the estate from the disseisor, and by Cook lib. 5. Fitz. Case it appeareth, that one part of the assurance shall stay his operation until another part hath his perfection; and therefore he conclu∣ded, that here the confirmation in judgement of Law, should stay his operation until the lease be inrolled which passed the estate: see the argument of Serjeant Nichols to the contrary, and also the argument of Thomas Crew in Easter Term and Trin. 7. Jac.

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.

Hill. 8. Jac. in the Exche∣quer.

Ewer against Moil, Hill. 8. Jac. in the Exchequer.

THe case was this, that a Commission issued out of the Chancery to Baron Sotherton and others, and this was in 7. Iac. to inquire what lands and Tenements the late Prior of Bister in Com. Oxon. had in Caversfield, in the County of Bucks, and to inquire if a rent reserved upon a grant made to Banbu∣ry of the lands of the Priory be arrere, or not, and by vertue thereof, the Iury of the County of Bucks found that the Church of Bister in the County of Oxon. was founded by the name of the Church of Saint Mary, and Saint Egbert, and that Thomas Banbury Prior in the year, &c. made a lease to one Banbury of

the moitie of the Mannor of Caversfield rendring rent, and that this rent was arrear, and thereupon an Inquisition returned, and a scire facias issued to Moil, who occupied the land, to shew cause wherefore the King should not have this land, whereupon he pleaded as Ter-tenant, and upon this plea the Kings Attor∣ney demurred, but it was misentred as see hereafter, but for divers great imper∣fections aswell in the Kings Commission as otherwise, the Defendant ought to have judgement as all the Barons agreed, as by the arguments of every Baron upon mature deltheration appeareth, but for the reasons of the Barons to the ex∣ceptions taken by the Councel, see after for they are very good. Bromley Pu∣isue Baron, whereas the Inquisition purporteth, that the Iurors in the County of Bucks, have found a foundation of a Priory in the County of Oxon. that is not good by course of Law, for if a thing be local, the Iurors of another County cannot finde it, and here the Commission giveth power only to inquire of things in the County of Bucks, and he vouched Plowden in the Earl of Leicesters case upon a Com∣mission, directed to White Lord and Maior &c. also the Inquisition is, that Tho∣mas Banbury Nuper Prior was seised, and made a conveyance: as is affirmed, that is not good: also the word Nuper may be intended a 100. years before, and so no certainty as appears in Wrothesly and Adams case in Plowden: Al∣tham 2d. Baron, there are three faults in the Commission. First, is to inquire of a Mannor and lands of the late Priory of Bister in Caversfield, in the County of Bucks, and by these words, no power is given to inquire of any thing concerning the Priory which is in the County of Oxon. and the words in the County of Bucks do defer to all the sentence precedent, and not to the word Caversfield only, 19 E. 4. fo. 16 7. H. 6. fo. 8. if A. B. and C. be insula de D. it shall be construed that the word insula hath reference to all the three Towas, but if it were in A. B. and C. insula, and not in insula, then it is otherwise, a Commission to inquire of lands of the Prior of Bister is evil without question where Bister is, and he said that this may be proved by Pages case Cook lib. 5. also the Commission doth not propose any end wherefore the Iury should be, but generally to inquire of the lands of the Priory at the time of the dissolution, so that it may be certified to the King by the Inquisition: the first fault which is found is, that the Priory was founded by the name of the Church of Saint Mary, and Saint Egbert without saying the Prior and Covent of &c. and without finding of the place of the foundation, viz. Bister, and this cannot be without assignmend of the place of the foundation, viz. Bister: also the finding is, that one Thomas Banbury then Prior as is af∣firmed, made a feofment &c. and this is not good, because it ought to be absolute∣ly found, or otherwise it is not material: also the intent of the feofment is found to be made by the Prior, but no livery is found thereupon, as it ought, although that livery shall be intended in the case of a feofment pleaded by a common person, yet it ought to be found expresly, in the case of a Corporation, and the finding here, and that by vertue whereof he was seised, as the Law requireth doth not aide the case. Snig Baron, it seems to me, that this Commission was only to inform, if the matter had been sufficient to us to give judgement to the King, but here being to intitle, &c. it is not good, the Commission is to inquire for the King of the lands of the Prior, and this meerly incertain without saying certain∣ly of what Prior, and therefore they have no power to inquire of the lands of the Priory: also the Iury of the County of Bucks, cannot inquire of the name of the foundation of a Corporation in the County of Oxon. for the foundation is matter Local, but it seems to me here, that the finding by vertue whereof he was seised prout, &c. shall be intended that livery was made being by a verdict. Tanfield chief Baron, here is not any demurrer being mis-entred, and therefore we have power to proceed to any matter in Law, for the purpose in this case was, that whereas the Statute of the 27. H. 8. of lesser Monasteries under the yearly value of 200. l. giveth them to the King, and this Mannor of Caversfield within this Statute is to be seised as is pretended in this case, whereupon this Commission

issued to inform the King of this Mannor as parcel of these Revenues, for I deny that it is an office of intitling, it is only an office of instruction, for the Statute of 27. H. 8. dissolves the smaller Monasteries, and vests them actually in the King, and this is the difference from the Statute of the 31. H. 8. for this Statute is only an Act to Abolish the lands of dissolved Monasteries, and therefore this Statute is only to inform, for the Statute of 27. H. 8. had intitled the King, and he said, that the land shall be in the King without office, so that it being but an office of instruction, this may be good, notwithstanding divers incertainties therein contained; but the plain and apparant fault herein is, because it is not to inquire what lands the Prior had at the time of the dissolution, as it ought to be, for the words are to inquire what lands the late Prior had, but it seems to me in this case, that the Iurors of the County of Bucks, may inquire of the founda∣tion in another County without doubt, this being but to inform and not to intitle, and this is not alike mischief to the party, for otherwise all Commissions to inform would be quashed, and I have seen a Record in this Court, where a man of a good family was found to be the Kings Villain regardant to a Mannor in Nor∣folk, and this was done by a Iury in Suffolk, and therefore in such cases (God defend) but that a Iury may finde a matter local in another County: also a gross defect is in the Inquisition, viz. because it doth not mention that the Mannor of Caversfield came to the King by the Statute of the 27. H. 8. but that the Priory came to the King by that Statute, and doth not say, that this Mannor was part of the possessions of the Priory at the time of dissolution, and for these last matters it is apparent, that the Inquisition, and Commission are vitious, although it be not proper for us, as the case is to adjudge it, for here is no demurrer joyned, for the demurrer is joyned, as if it were upon an Information of intrusion, and here is no intrusion laid to the charge of the Defendant, and yet after the plea pleaded by Moil, the Attorney prayed that he may be convicted of the intrusion, and Moil said, that he ought to shew matter sufficient, whereupon he upon the intrusion aforesaid ought to be convicted, so that a thing is demanded of us to give out judgement in which is not in question before us, and therefore no judgement at all may be given here, wherefore it is not needful for us to dispute other matters in the case, and as to the questions in Law, which were argued by George Crook, and others, Tanfield chief Baron, nor Altham spoke not at all, because they might come before them again to be adjudged upon a better office: but Bromley and Snig Barons spoke to the matters in Law, and their opinions were as follow, and upon the plea of Moil the case was this, that the Tenant pleaded protestan∣do, that the Priory of Bister was not founded by the name of the Priory of Saint Mary, and Saint Egbert of Bister, as the inquisition supposeth, for plea he saith; that one Thomas Banbury Prior of the Church of Saint Mary, and Saint Eg∣bert of Bister infeoffed him of the Mannor of Caversfield by the name of the Moi∣ty of his Mannor of Caversfield, as also by the name of all his lands and Tene∣ments in Caversfield, and that the said feofment was made by the name of the Pri∣or of Saint Egbert of Bister, and that it was known aswel by the name of Saint Egbert as Saint Mary, and that the Mannor of Caversfield was well known by the name of the Moity of the Mannor of Caversfield, and that the Prior had no other land in Caversfield, and shewed also, that there is another in Caversfield, which is called Langstons Mannor, the which heretofore was the Priors, and allotted as a Moitie of a Mannor, in the same Mannor of Caversfields, and those and other circumstances he used in his plea to the intent to shew, that all the land of the Prior shall pass to him, and he shewed that this Mannor sold to him was known by the name of Langstons Mannor. Bromley Baron, the Corpo∣ration is mis-named in the Grant, because it is a thing material, viz. the omission of the word Saint Mary, for the name of assent in a body politick is, as the name of Baptisme in a body natural, and the name of Baptisme cannot be missnamed, as it appears 3. H. 6. and 1. H. 7, if Iohn by the name of Thomas make an Ob∣ligation

this shall not binde him if he doth not admit it, and therefore it shall not conclude the King, see the 11. Eliz. Dyer 279. where in some cases the estate shall pass by livery and seisin, by what name soever it be made, but a Corporati∣on cannot pass an estate from them, but by Charter, and it may be conceived, that the founder intended two things; the one was Religion, or more properly superstition, the other was, that it may remain to posterity, as a Monument of the piety of his Ancestors, and then if the name should be altered, the remem∣brance would also decay, and therefore what name soever is first imposed, ought alwayes to be observed: and that the omission of Saint is material, and he vouched Eaton Colledge case, 3. and 4. Ma. Dyer and 35. H. 6.31. the case of the foundation of Saint Peter and Paul &c. but he agreed the case in 11. Eliz. Dyer 278. that omission of the word undivided is not prejudicial, because no ma∣terial variance. Secondly, it seemed, that all the Priors Mannor of Cavers∣fied passed by this grant, for by 20. H. 6. and 22. H. 6. it appears, that a feof∣ment of 20. Acres by the name of a Mannor is good, and 6. and 7. E. 6. Dyer, if a man grant his Mannor in S. containing 10. Acres, yet if it contain 20. A∣cres it is good, and the word Omnia, greatly inforceth the case as it seemeth, wherefore, &c. Snig Baron said, that the mis-naming is a material variance which avoids the grant, also it seemeth, that Omnia alia shall not be intended to refer to more then was granted by the other words, except there were other lands besides the Mannor, and therefore he thought that only a Moity of the Priors Mannor passed; super totam materiam.

Sir Henry Browns case before.

HObert Attorney general, it seems to me that the plea is not good for divers causes: see the beginning before, fol.—he said, that first every issuable plea ought to express a place, but if the issue be triable by the Record, or witnes∣ses, a place is not necessary, 11. H. 7. fo. 1. if there be no place, there is no plea, and therefore if it be beyond the Sea it is no plea. Secondly, in our case there is no place alledged from whence the venue should come to trie the entrie in this case to be of all the premises, for it is to trie the entrie, but in one particular par∣cel, but I agree as it hath been said of the other part, if the entry had been al∣ledged to be in the premises, then the venue shall come from all the premises, for here the plea of the entrie pleaded by the Defendant is double, and yet it is good, because of necessitie it cannot be otherwise intended in this case, but I cannot plead in this case, that I have not entred into two Closes parcel of the premises, for that is Negative preignans as is in 9. H. 6. fo. 44. in debt upon a bond where the Defendant was bound to require a house, the Defendant said, that A. by the command of the Plantiffe disturbed him, the Plantiffe shall not be admitted to re∣plie that A. did not disturb him by his command, but by protestation that A. did not disturb him, for plea that the Plantiffe did not command him, &c. 6. H. 6. fo. 9. in a writ of entrie the Tenant pleads, that the demandant confirmed after the last continuance, the demandant shall not say, that he did not confirm after the last continuance, 5. E. 3. fo. 1. in a per quae servitia of the grant to the husband and wife, the Defendant said, that the wife released while she was sole, the other cannot replie that she did not release when she was sole, but ought to deny the deed: and so in our case if you will say by protestation, that the place where the entrie is suppo∣sed is not parcel, &c. for plea, that you have not entred after the last continuance, then the issue ought to be joyned, if we please or not, and this shall not have any reference to the premises, but only to the two Closes, and then the venue shall come from the two Closes; wherefore, &c. also by this plea so uncertain the Plan∣tiffe is prejudiced, for admit, that in this case Hawkins the Defendant had re∣entred before the day of nisi prius, this had made our writ good again, as ap∣pears

by 26. H. 8. fo. 10. and 36. H 6. and 8. H. 7. and then if here the Defen∣dant will say that the Plaintiff had entred before the issue, now it shall not be touching the premisses; Also peradventure if he will assign the place, this may fall out to be in another County, then where the Action was brought, for so it may be, and yet parcell of the premisses, and so he may give us cause to demur. Also to say cleerely that the Plaintiff had entred, &c. is not good, for it ought to be that the Plaintif also expelled or amoved the Defendant, as appears in the book of Entries, Tit. Debt or Lease, fo. 11. or 12. and fo. 175. B. also here the Plea is double to say in one close called Well Close, and this is matter of substance, whereof we may take advantage notwithstanding this general Demurrer. And also he saith it is parcell of the tenements mentioned in the Declaration, & this may be, and yet never parcell of the thing whereof the Action is brought, for there are other Writs therein comprehended within the pernosme: And as to the objection of Serjeant Dodderidge, that here is a discontinuance because the Plea is not con∣tinued by the Iudge of Nisi prius into this Court here, if seemeth that this needs not, notwithstanding that it be a collaterall Plea in this Court, in Trin. Term at the Assises, but it is that the parties aforesaid do attend in Octab. Mich. and the continuing untill the Assises is but with a Nisi prius, &c. and by expresse words the the Parties have day to attend to hear judgement, and at the Assises to try the issue, and this is a sufficient continuance: and as to that the Iudges of Nisi prius ought upon this Plea to discharge the Iury, to that it seemeth that the relinquish∣ing of the issue joyned, and the acceptance of this new Plea is a discharge in Law. Also the Iudges of Nisi prius have no power to give day in the Court here to the Parties, for the Court here is to appoint the day in the book of the other part, & 37. H. 6. fo. 2. is only that the Iudgs of Nisi prius give to the parties their day, viz. the ordinary day, and not another day, and the cases tit. Voucher, and tit. Journ. in Fitz. cited of the other part are, where the Plea is to be put in another Court, as Durham, &c. where the parties have no day before, and there a day ought to be given, but that is apparantly different from our case. Nichols Serjeant to the contrary, admit that the Action had been brought of the Mannor of D. only, and the entry had been alledged in parcell as here it is, then it had been good, see the Book of Entries tit. Debt or Lease, 11. or 12. accordingly, and by the same rea∣sons it seemeth, the Action being brought for the ejectment of three Mannors, & the entry was pleaded to be in one Close, parcell of the Tenements, and good, for the venue shall come from all, as well from one Close, as from the other. Also here the entry is alledged to be in parcell of the Tenements, and not of the pre∣misses, and so the venue for the tryall ought to be from the three Towns where the odde Acres lye, and not from the Mannor; also and by a reasonable in∣tendment it may be conceived that the place where &c. lyeth in all the three Towns, 36. H. 6. fo. 17. the Defendant saith, that the place where &c. is parcell of the Mannor of B. that he intitled himself unto, he needs not shew where the Mannor lyeth, and yet it shall be intended in the same County, and although that in such case it is said to be shewed in certain, by the Book in 6. E. 6. Dyer fo. 76. yet this doth not prove that it ought to be of necessity, and here by the shewing of the Plaintiff he had confest the matter of fact, which is an entry into parcell of the Premisses; and by consequence he falsified his Writ, for if he confesse that he had entred into any parcell thereof whereof he brought his Action, he had falsifi∣ed his Writ cleerely, & he vouched 21. H. 6. fo. 8. and 6. Eliz. Dyer 226. in a Eje∣ctione firme against Nevell and others, it is said that by a Demurrer to such a Plea, the Plaintiff had confessed the Entry, but otherwise it should be if he had imparled, see Bowld and Mullinexes case in Dyer fo. 14. for the shewing of a place, &c. and l. 5. E. 4. fo. 138. an Executor pleads fully administred, and at the Nisi prius he pleads that the Plaintiff recovered part of the Debt in D. after the last continuance, and a good Plea, although it be not shewed in what County D. is: Also it seemeth that day ought to be given in this Plea, or otherwise it is a

discontinuance, for the day given upon the Roll is to hear judgement upon the ver∣dict, and this plea is Collateral, wherefore, &c. and he vouched 10. H. 7. fo. 27 and 7. E. 3. fo. 338. by Herl, where a difference was taken when a day in Bank shall be given, and when not, and he vouched 4. and 5. Eliz. Dyer 218. where Fitz. Iustice gave day in Bank. Tanfield chief Baron, true it is, that if it be in an Assise which commenteth originally before the Iudge of Assise he may give day. Nichols also vouched 33. H. 6. and 11. E. 4. fo. 13. Hobert Attor∣ney general, the demurrer doth not confess the plea when it is insufficient, but if upon the demurrer the plea be adjudged sufficient, then the fact is confessed, for the demurrer only confesseth the matter of the plea conditionally, viz. if it be good in the matter of the case, in 6. Eliz. Dyer 226. the Plantiffe conceived, that the plea there ought not to be pleaded in an ejectment after the last continuance, and did not demur for the form, and a demurrer doth not confess the plea good, although that the matter is true, and the Book in 21. H. 6. doth not prove against me, for that was of an actual confession, but in 37. H. 6. the issue joyned was, if he who prayes to be received, may plead the entrie of the demandant after the last continuance, and the cause of the demurrer there, was only if he could plead that plea or not, because it appears not, if he had any thing in reversion or no, and so it seemeth, that we might have demurred specially, and this had been no confession, and therefore the general demurrer shall not prejudice us, for the mat∣ter of confession. Bromley Puisne Baron, it seemeth the plea is not good, be∣cause a place is not assigned in certain in what Town the entrie is, divers Towns being alledged, it seemeth that it is no discontinuance, for there needs no special day to be given, but the day of return of the nisi prius, for they cannot give any day being delegate only to a special purpose, and it seems to me, that the demur∣rer doth not confess the plea of the Defendant, but conditionally, viz. if the plea fall out to be good, for otherwise the Plantiffe shall be outed to take advantage of a bad plea, and so upon the whole matter, it seems that judgement shall be given in the ejectione firme for the Plantiffe. Altham second Baron, to the same purpose, there needs no special day to be given by the Iudge of nisi prius, al∣though that it be upon a Collateral matter, or plea, for by the record in this Court a day is given to the Iurors conditionally, viz. if the Iustices of nisi prius at the Assises do not come, &c. but to the parties it is given absolutely: fee 6. Assises pla. 7. and L. 5. E. 4. fo. 2, 3, and 4. where there are several cases to this purpose: see 9. E. 3.21. H. 6. fo. 10. if the Defendant make default, at nisi prius, a new distress shall issue to the same Iurors to be here in Bank, and 3. H. 6. fo. 8. and 9. if a man appear, and plead, he shall never take advantage of any discontinu∣ance: Also it seemeth that the plea is not good, and to say, that the word Tene∣mentorum refers only to the odde acres, and not to the Mannor, it seemeth, that it refers to all: but if it shall be taken to refer only to the odde Acres, yet this is not good, and this is proved by the Book in L. 5. E. 4. fo. 110. for a plea to the writ, ought to be alwayes certain, and this case also answereth, that which hath been said, that the demurrer confesseth the matter against the Plantiffe, for I say if you plead a release in Bar of a debt, and shew no place where the release was made, this demurrer is no confession of the release, except that the cause of the demurrer fall out against me, wherefore in respect that the plea is not good, and is peremptory to the Defendant, as other pleas to the writs are, for this cause I conceive Iudgement shall be given for the Plantiffe. Snig Baron accordingly, that the plea is not good, for the not shewing of a place certain wherein the entrie was, as by the matter of discontinuance, it seemeth that the day of nisi prius is all one with the day in Bank, and therefore there needs no day to be given, and for that the death of any of the parties after the verdict, and before the day in Bank shall not stay the judgement, the Books which were cited on the other parts are different from our case, for there the suit was adjourned into another Court, and the Courts in the Country are not as the Courts here, and therefore it was ne∣cessary,

that in such cases a day ought to be given: for the manner of pleading we ought to give judgement against him who pleads the plea, notwithstanding the matter admitted by the Plantiffe, wherefore judgement shall be given for the Plantiffe. Tanfield chief Baron accordingly, the plea whereupon the issue was joyned, was for three Mannors and lands in three Towns, and entrie is alledg∣ed to be in two Closes called &c. parcel of the premises, in Bar of the Action, if the Defendant in liew of not guiltie plead an affirmative plea, and at nisi prius he pleads another plea, then the entrie ought to be, that the Defendant relicta veri∣ficatione &c. but in our case such an entrie needs not; the plea here ought to be more certain then others, for two reasons.

• First, it is pleaded in abatement of the writ.
• Secondly, it is in delay of the Plantiffe, and to which no rejoynder can be made, as to the plea it seemeth it is not good, for by 10. H. 7. fo. 16. a quare impedit was brought by an Administrator of a grantee of a next avoidance, and shewed that the Bishop of Sarum granted Administration to him, the Defen∣dant saith, that the intestate had bona notabilia in divers Diocesses, and so the Administration void, and shewed in what Diocesses the goods were, but shew∣ed no place where they were, and therefore it was adjudged, that the plea was not good, because he did not shew a place &c. see 2. R. 3. and 5. H. 7. accordingly, and this plea shall not be amended by a rejoynder, as is 21. H. 7. also to say parcel of the premises, this cannot be intended, that parcel of three Mannors, or of the three Towns in certain, and therefore the plea cannot be good, because there is no place from whence the venue should come, and it is inconvenient, that the venue should come from all, if the place where, &c. lies but in one Town, for as it appears in Arundels case;

Cook lib. 6. if a Mannor be alledged to be within a Town, the venue shall come from the Town, because it is a place more certain: as to the general demurrer, that the plea aforesaid, is lesse sufficient in Law, &c. in 18. E. 4. it appears, that in debt upon an Obligation, the Plan∣tiffe doth not shew a place where the Obligation &c. and the Defendant confessed the Action, yet notwithstanding this fault, Iudgement ought to be given against the Defendant, but this differeth from our case, because here is an express con∣fession, and in our case here is not: also here needs not to be shewed any special cause of demurrer, but advantage may be taken well enough upon the general de∣murrer, but if the demurrer were, that the plea amounted to the general issue on∣ly, there ought to be shewed a special cause, or otherwise no advantage to be ta∣ken, and he cited the agreement of seven Iudges, to be at Serjeants Inne in Fleetstreet. this Term in a writ of Error in Dickensons case; the case intended was between White and Priest, parties in an Action upon Trover and conversi∣on, and the Record thereof is in the Kings Bench, Trin. 7. Jac. Rot. 843. as to the matter in Law, touching the discontinuance for want of a doy given by the Iudge of nisi prius, it seemeth there is no discontinuance in this case, for there needs not to be any day given as our case is, yet in some case the Iudge of nisi prius ought to give day, but that shall not be a new day, but only the day within contained, and that but in special cases, viz. if the issue be joyned, and at the shewing of the evidence there is a demurrer, here the Iudge giveth to the party the day within contained, as it appears in 10 H. 8. Rot. 835. and Hill. 11. H. 8 accordingly in the Common Pleas, but Hill. 36. Eliz Rot. 448. upon non∣suit at the Assises no day given, so if the party confess the Action, and so if there be a bill of exceptions, yet no day shall be given; Hill. 38. Eliz. Rot. 331. in the Kings Bench, but peradventure, it will be said, that these Authorities do not match with our case, because it is upon a material plea, but I say it is all one, and therefore in case of a release pleaded after the last continuance this is re∣corded, and yet no day given as appears Hill. 4. H. 8. Rot. 906. in the Com∣mon Pleas, and this was upon a new and Collateral matter, as our case is: Trin. 20. H. 8. Rot. 247. or 2447. upon an Arbitrament pleaded, and he vouch∣ed divers other precedents upon the same point: Trin. 3. H. 8. 446. or 466.

and 14 H. 8. Rot. and 11. H. 8. Rot. 446. and Mich. 31. H. 6. Rot. 141. and. Hill. 33. H. 6. Nota, that here it was admitted without any doubt, that an Ejectione firmae lyeth of a Mannor, although it was said at the Bar, that Williams Iustice was of opinion to the contrary the last assises at Norwich: and so by all, Iudgement was entred for the Plaintiff immediately, and a Writ of Er∣ror was brought, but never prosecuted, for the Countesse of Pembrook had day given to remove her goods out of the Mansion House, and so she relinquished the possession of all the premisses, as I heard.

Trespasse against Gibson and others.

VPon evidence to a Iury, an Action of Trespass against Gibson and others, it appears that the Defendant was Deputy to the Duke of Lenox, upon his Patent of Vlnage, and that by vertue thereof, he pretended to make search of certaine Stuffs called new Drapery which the Plaintiff were carrying to Lon∣don, and at the Town of Ware two or three strangers affirming themselves to be servants of the said Gibson, did unpack the said Drapery, and laid it in the dirt, whereby the Plaintifs were hindred of the sale, &c. And in this case it was agreed, if they as Servants to Gibson without his precedent appointment doe seise the Plaintifs goods, and the said Gibson approve them to be seised, although his Servants without his consent abuse the goods, yet Gibson shall be Tres∣passer ab initio. Also they agreed without any scruple, although that the first seisure of these goods be admitted to be lawfull as by the pretence or licence in Law, yet the abusing of them makes the originall seisure to be wrongfull, and tres∣pass lyeth, and therefore in this case, although it were not proved that Gibson himself appointed, or was privy to the misusing aforesaid, yet he shall be charged in dammages, and so he was for severall seisures in an Action to 32. pounds, viz. 30. l. for one seisure, and 2. l. for another seisure, and so severall dammages for severall Trespasses in one Action, and although that by the abusing of an Au∣thority or licence in facto a man shall not be a Trespassor ab initio: but an Acti∣on upon the Case lyeth, yet for misusing of an Authority in Law, Trespass lyeth ab initio, for if he who hath power to seise Estrayes, will labour the Estray, a Trespas lyeth for the seising thereof, Bagshews case, Hill. 4. Jacobi in the Kings Bench.

Bromleys Case, Hill. 8. Jacobi in the Exchequer.

HUtton Serjeant came to the Bar, and shewed that one Bromley had before this time made a Lease for years in County Palatine of Durham, of certaine Cole-mines in that County, rendring rent 100. l. per annum, which rent is ar∣reare for divers years, and that Bromley became outlawed here in the Common Pleas for debt at the Suit of Cullamour a Merchant, and that the King had granted this debt due upon this Lease for years as forfeited for outlawry unto him: And Hutton for the Bishop said, that it belongs to him, because he had all the goods of men outlawed within his County, and if this debt belongs to the King, or the Bishop, it was the doubt, the party being outlawed in the County of Northumberland which is out of the County Palatine of Durham: Tanfield chief Baron said that the debt shall follow the person, and he said that in 21. Eliz. Vere and Jefferies case, it was a question, if debt upon a Bond shall be forfeited to him, who had such a priviledge where the Bond is, and he said that in this case

it was resolved that he shall have the Bond and debt (who had Bona utlagato∣rum) where the Bond is, and so it was resolved as he said in a Case referred out of the Realm of Ireland, but here is a bebt which accrueth by reason of a reall contract of goods in the County Palatine, and he who is Debtor is the party outlawed, but not in the County Palatine of Durham: And Hutton Serjeant said, that he dad the Rolle of a Case in this Court in the time of E. 3 that the Bishop of Durham was allowed a debt in a more strong case then this is, for there a Creditor was outlawed in London, and his Bond was also in London, and the Creditor was only an Inhabitant within the County Palatine, yet the Bishop was allowed this debt: Curia put in your Claime, and we will allow that which is reasonable, and it was adjourned.

Isabell Fortescues case.

VPon a motion it was shewed by Coventry, that upon a penalty imposed up∣on Isabell Fortescue for her Recusancy, and Inquisition issued, and it was found by the Iury that the said Isabell was seised of no Lands, but those menti∣oned in a Schedule to the Inquisition annexed, and then expresseth divers parti∣culars in the Schedule, without expresse finding that she was seised of them, this is no good Inquisition, nor finding of any seisin, by the whole Court: And so by the Court, where an Inquisition or Schedule saith, that the said Isabell was seised of the Mannor of D. as by information, this is not good cleerely, for it may be she is seised without information, but where it was shewed that upon this in∣sufficient Inquisition, divers summes of money were levied, and paid into the Kings Coffers, that this may be restored: The Court answered, it doth not ap∣pear, but that the King may by a new Inquisition have this money justly, there∣fore it shall not be delivered out of the Kings Coffers, but if you mone good matter in equity to be discharged in your English Bill, you shall have restitu∣tion, &c.

Brockenburies case.

THe Kings Debtor suffered A. to manure his Land, and therefore the She∣riff seised the goods of A. for this debt, whereupon A. (to the intent to have his goods again) paid the Fees to the Sheriff, and made a Bond to the King to pay the Summe due: And now upon a motion and Affidavit that the Debtor himself had sufficient to satisfie the debt due, it was ordered by the Court, that the Fees taken by the Sheriff shall be restored to A. and that the Bond remaine in the Office here, and if this debt can be levied of the lands, or goods of the Deb∣tor, the Bond shall be delivered to A. but if it fall out that it cannot be levied of the Debtor, then the King shall resort to A. upon this Bond, and he shall have the assistance of this Court for his reliefe against the said Brokenbury the Debtor.

Robert Beckets case touching Recusancy.

RObert Backet seised of divers Lands in Fee in the County of Cornwall, upon an Indictment in 28. Eliz. was convicted of Recusancy for 10. moneths next before, and died in 1. Jacobi, and no other conviction ever was, and yet

de facto he continued a Recusant untill his death, and his Land, viz. two parts thereof were seised in his life, and the King answered of 200. l. thereof, which in∣curred in the moneths contained in the Indictment, and now a Writ is issued which supposeth the said Robert to be indebted to the King in 20. l. for every moneth be lived after 28. Eliz. untill 1. Jacobi for his Recusancy, which amount∣ed to 4000. l. which Writ also commands to enquire what Lands the said Ro∣bert Becket had at the time of his death, and thereupon it was found that he had divers Lands, &c. and upon a Scire facias to the Terretenants to shew cause wherefore two parts of the Lands of the said Robert Becket should not now be seised for the debt of the Recusant aforesaid, one Henry Becket as Terretenant, or Tenant of the Premisses pleaded that the King is satiefied of all the 20. l. and for all the moneths that the said Robert was convicted to be a Recusant, and he vouched the Constat thereof under the hand of the Deputy of the Pipe Office, and for the residue he said that by 28. Eliz. cap. 6. it is amongst other things en∣acted, that if any person which hath not repaired, or shall not repaire to some Church, Chappell, or usuall place of Common Prayer, but hath forborne, or shall forbeat the same, contrary to the Tenor of the Statute of 23. Eliz. cap. 1. and hath been heretofore convicted for such offence, shall forfeit, &c. provided that it he hath made submission, and been conformable according to the true mean∣ing of the said Statute, or shall fortune to dye, that then no forfeiture of 20. l. for any moneth, or for seisure of the Lands of the same offender, from and after such submission and conformity, or death, and full satisfaction of all the arrerages of 20: l. monethly before such seisure due or payable, shall ensue, or be continued against such Offendor, and traverseth without that, that there is any Record be∣sides this Writ, to charge the said Robert Becket deceased, of or for the summe of 4000. l. towards our said Lord the King, &c. and so prayeth to be discharged there∣of. Vpon which Plea the Kings Atturney Generall demurred, and Coventry argued that the Plea is good, & he said that there are three Points to be considered;

• First, that if a man be convicted of Recusancy in 28. Eliz. for 10. moneths then passed, and de facto continueth a Recusant untill his death in 1. Jac. with∣out other conviction, if now the King can claim 20. l. a moneth for more moueths then are contained in the Indictment whereupon he is convicted.
• Secondly, ad∣mit that the King may have the forfeiture for every moneth, whereof no convicti∣on was as well as if a conviction had been, then if the King can seise the Lands for the payment thereof after his death, no seisure being had for it in his life, by the Stat. of the 28. Eliz. or if the power of seisure be altogether gone by the death of the Recusant.
• Thirdly, admitting that the King shall have more then is con∣tained within the Indictment, if the Debt it self be not gone by the death of the Recusant;

To the first Point, there is no President to be found that any man con∣victed before 28. Eliz. was charged to the Payment of more then that which was within the Indictment, and the words of the Statute of 28. Eliz. contained within this Clause which provides for the payment due since the Conviction, do not inforce any construction to the contrary, and in this Clause the words being, (do yet remain unpaid) are not proper words but for a thing payable before this Sta∣tute, for so many moneths whereof he was convicted of Recusancy, and the words without any other conviction are to be understood for so much as was unpaid of that contained in the Indictment, and the last Clause of this Branch of the Sta∣tute hath not the words without any conviction, and the other Clause provides that by expresse words for the future time, every person who shall be once convict∣ed shall forfeit, &c without other conviction, and it was resolved Hill. 4. Jacobi in the Kings Bench between Grinstone and Oliver, that the Statute of 28. Eliz. alters, and adds three things to the Statute of 23. Eliz.

• 1. That all the mo∣ney due for Recusancy shall be paid into the Exchequer.
• 2. This limits a time for payment thereof yearly, viz. in the four Terms of the year.
• 3. This giveth a penalty, viz. power to seise all the goods, and two parts for non-payment, but

• all that is only for that which was payable before the conviction, and therefo••e the words in the Branch which contains our Case, have apt words of constructi∣on, that he shall pay all due for the paine of seisure, for 23. Eliz. gives no seisure, but imprisonment if payment be not made within three moneths after judgement, and so in our case Conviction ought to precede the duty: To the second Point it seemeth that the power of seisure within this Statute is gone by the death of the Recusant, for before the Statute of 1. Jacobi the power for seisure was but a penalty, that if the party fail in payment of 20. l. a moneth then &c. and in all cases upon penall Laws, if the party die before the penalty inflicted, this shall not be inflicted at all, and that this is but a penalty, he vouched one Grayes case in 1. and 2. Jacobi to be adjudged accordingly: Also the words in this Statute which give the seisure of Land, appointeth a levying to be of the 3. part for the maintenance of the Offendor, his Wife, Children, and Family, and after his death he hath no Wife, so that if it be demanded when the seisin must be, the answer is, then when a third part may be left for his use, which cannot be but in the life of the Recu∣sant: Also it appoints that the seisure ought to be by Processe which ought to be in the life of the party by intendment: Also the Proviso of the Statute of 28. Eli. saith, that if any person shall dye, no seisure shall insue, or be continued, a••d out case is within those words, for in regard there hath been no seisure in his life, therefore after his death no seisure ought to insue, and the words which purport another semblance of construction, viz. and satisfaction of all arrerages, are to be understood only in case where there was a former seisure, that is in the life of the party, and have reference to the words (to be continued) and that the intent is so, he said that the words are, so that the Heir shall pay no more but so much as the Land was seised for.

To the third, it seemeth that in this case the debt it self is gone by the death of the party; At the Common Law, a penalty shall never be re∣covered against the Heir, except that judgement be given against the Ancestor, and for that see 40. E. 3. Executors 74. and 41. Ass. pl. 15. and 15. Eliz Dyer 322. And also if a Recusant had been convicted upon the Sat. of 23. Eliz. and dyed before judgement, cleerely this forfeiture shall never be charged upon the Heir, for the words are, that a Recusant shall forfeit 20. l. a moneth, and if he doe not pay it, then appoints the recovery by Bill, Plaint, or Information, and this ought to be alwaies in the life of the party, then the Stat. of 28. Eliz. ma∣keth not a new debt or Forfeiture, but gives a penalty for the non-payment of that which was a debt within 23. Eliz. and that the intent of the Stat. of 28. Eli. was but such, this is proved by the Title of the Act. viz. for the more speedy and due execution, &c. 2. It is proved by the first words of the Act, for the avoid∣ing of all delaies, &c. so that it appears, that this Act is but as a penalty meerly: Also he said, that this Stat. of 28. Eliz. dispenceth with the conviction as to the penalty, but doth not take away the Conviction: also he said that conviction without Iudgement maketh not a Debt: Also he who is convicted by proclama∣tion, and dieth, is discharged: Also he said that our Case hath been compared to a Debt upon an Obligation, but this is not like, for the Stat. stands not inde∣finite, but hath reference to 23. for otherwise a Recusant may be doubly charged, that is, upon both the Statutes, for there is no means to recover the Debt but by this Statute of 23. Eliz. See Sir Edward Walgraves case Dyer 231.

Wentworth and others against Stanley.

WEntworth and his Wife, and Rich and his Wife brought an Ejecti∣one firmae against Stanley, and shewed in their Declaration how one Edward Stanley was seised in Fee, and infeoffed the Earl of Darby & others to

the use of himself for life, the remainder to the use of the Plantiffs wife for 100. years, and died, and the Plantiffs entred, and the Defendant ejected them &c. and this Feofment was made in 40. Eliz. the Defendant saith, that long before one Richard Stanley was sesed in Fee, and gave it to the said Edward Stanley in tail, and that he so seised made a Feefment to the uses as is alledged, and died, and the Plantiffs entred, and the Defendant as issue of the Feoffor re-entred, and so by his pretence his is remitted, whereupon it was demurred; and upon the opening this case, the Barons were clear of opinion, that the issue in tail is remitted, and came paramount the lease, and so the lease for years is gone: also by the chief Baron, and Baron Snig, there needs no Traverse to be alledged by the Plantiffe, because it was but of a fee gained in an instant by the feofment of a Tenant in tail, and a fee-simple gained in an instant needeth not to be Traver∣sed: 5. H. 7. and 2. E. 4. wherefore the Court said, that judgement ought to be given against the Plantiffs, but yet at the desire of the some, the Court gave day to the Councel on both parts to argue the case; at which day came Heneag Finch for the Plantiffs, and he argued to the matter in Law, and therein he said, that by the feofment of Tenant in tail, the use to himself for life, the remainder to his daughters for years, without limiting the residue of the use, that in this case the residue of the use shall be in the feoffes, and not in the feoffor, for by him there is a difference between a feofment by him who had a fee with limitation of an use as above, and a feofment made by him who derives an estate out of a fee, for when Tenant for life, or Tenant in tail makes a feofment, and limits an use for part of the estate as above, there the residue of the issue shall be to the feoffee, and he vouched Castle and Dods case adjudged in the Common Pleas, 8. Iac. that if Te∣nant for life grant over his estate without limiting of an use, it shall be to the use of the grantee, more strong here in a tortious act, as our case is, but if Tenant in tail will levy a fine with limitation of uses as above, there the residue of the use shall be to the use of the Conusor. Secondly, admit that the residue of the use in this case shall he to the feoffor, yet he shall not be remitted to the use as it seemeth, the words of the Statute of 27. H. 8. are, that cestuy que use shall have like e∣state in the land as he had in the use, and therefore it is clear, that the first taker of the use shall not be remitted, as it is resolved in Amy Townsends case in Plow∣den, and although the words of the Statute mention not heirs or issues, yet by the intent of the Statute they are in equal degree, but the Books which are a∣gainst this opinion are two, viz. 33. H. 8. Dyer fo. 51. but there it is not ex∣presly said, that the issue is remitted, but 34. H. 8, Br. remitter 49. is expresly against me, but the same year in Dyer fo. 54. it is there made a quere, and in Bevils case it is only said, that the first taker of the use cannot be remitted, but of my opinion was Baldwin and Shelley, in 28. H. 8. Dyer. 23, 24. and in Sanages case, and 29. H. 8. it is resolved, that if a man hath land by Act of Parliament, there shall be no remitter, and so here; wherefore &c. and he said, if Tenant in tail be, the remainder in fee, and Tenant in tail makes a feofment to the use of himself in tail, the remainder to him in remainder in fee, in this case he in the re∣mainder in fee shall not be remitted, for then the first taker should be remitted: to the pleading, it seemeth that the bar is not good; and first, the general demur∣rer here doth not confess the matter of fact, no more then in Gawins case in 29. H. 8. fo. 40. by Brown, a demurrer upon account in an appeal is no confession of the fact, and in 44. Eliz. in Crisp and Byrons case accordingly: see Sir Hen∣ry Browns case before, a good case to this purpose: then as to the Bar, it seems it is not sufficient, for want of a Traverse of a seisin in fee, alledged in the feoffor, who was Edward Stanley, for it is a rule that two affirmatives cannot be allow∣ed in a Declaration, and the Bar without Traverse of that which is mentioned in the Declaration is not good, except there be cause of some impossibilitie, or inconvenience; but yet this is to be understood where the affirmatives are ex∣press, and not by implication, as in Moiles case, if the Defendant in his Bar

confess a fee determinable, he needs not Traverse the fee alledged by the Plan∣tiffe; but in our case here is an allegation made by the words of a fee, to be in the feoffor, and the Bar confesseth only, as of a fee gained in an instant; but I a∣gree, that if the Bar had been, that the Feoffor was Tenant for years, and made a Feofment; this had been good without Traverse, but when Tenant in tail makes a Feofment, it shall not be intended, that he gained a Fee, because it may be he hath purchased the remainder, and thereby had lawfully acquitted it, as an addition to his estate: and here the saying in the Deelaration, that Edward Stanley was seised in Fee as a thing material, and of necessitie, and not superflu∣ous, as the pleading in a Declaration for debt upon an Obligation to say, that the Obligor was of full age, or as a Repetition of the writ which needs not be Tra∣versed, and that it appears in 15. Ed. 4. in some case a Surplus••ge ought to be Traversed, and 7. Ed. 6. Title Formedon, the Declaration as in our case ought to be special, and 21. H. 7. if a man will maintain debt upon a lease, he ought to shew how he was in titled to make the lease: also although that in our case, the lease for years is the effect of the suit, yet I say, that the seisin in Fee is the effect of the plea: 27. H. 8.50. H. 7.14. in a replevin the Defendant a∣vows as seised in Fee, the Plantiffe sayes, that he was seised for life, and doth Traverse &c. and 14. and 15. Eliz. was our very case, Dyer 312. and there it is said, that the sure way is to take a Traverse, as it is also said in 11. Eliz. Dy∣er, also where the Bar saith, that one R. was seised in Fee, and gave it to the Father of the Feoffor, and the heirs of his body, he ought to say, that the land descended to the Feoffor as son and heir of the body &c. also where the Plantiffe declareth of a lease for years made by force of a feofment, made the 30. day of August 6. Iac. the Bar saith generally, that the 30. day of August 6. Iac. the said Feoffor made a Feofment of the same land to the same persons &c. but he doth not say, that it is one and the same with the Feofment mentioned in the Declaration, so he answereth not our title, and for that cause not good, and therefore he pray∣ed Iudgement for the Plantiffe. Jones of Lincolns Inne to the contrary, it seemeth as to the first matter moved, that in this case the resioue of the use shall result back to the Feoffor 34. Eliz. Balfores case, if Tenant in tail make a Feof∣ment to the use of himself for life, without more, by Popham the residue of the use shall be to the Feoffee, for otherwise the estate for life would be drowned; but otherwise it is when a remainder of an use is limited to another in Fee, for this saves the drowning or confounding of the estate for life: as to the point of remitter, it seemeth that it is no other, but that Tenant in tail makes a Feof∣ment to the use of himself, and his heirs, and dies, if the issue shall be remitted, or not, and as to that he said, that the Statute of 27. H. 8. cap. 10. hath by ex∣press words a saving of all antient rights, and therefore the antient right of the estate tail is saved, and therefore the issue shall be thereunto remitted, and so should the Tenant in tail himself, if he had not been within the words of the Statute, as it is resolved in Amy Townsends case in Plowden, and the authorities of my part are 33. H. 8.54. in Dyer expresly with me, and without any quere, as to the point of remitter, but there it is said, that he ought to avoid the lease by entrie, as in our ease it is pleaded: and as to the pleading, it seems there needs no Tra∣verse.

• First, because it is matter in Law.
• Secondly, we have confessed a Fee in an instant: as to the first reason, the Declaration is generally of a seisin in Fee, and not expresly of a Fee simple, and therefore it is matter in Law, 5. H. 7. and 11. H. 7.21. the Fee not Traversed: 46 Ed. 3.24. in Dower the Defendant pleads a special tail, made by one who was seised in Fee, the other saith, that the Dower had but an estate tail at the time of the gift, without Tra∣versing that he was seised in Fee, 2. Ed. 4.11. that a seisin in Fee tail is suffi∣cient to maintain an allegation of a seisin in Fee: to the second reason it is not al∣ledged expresly, that he was seised in Fee, but quod cum talis seisitus fuit &c. and 34. H. 6.48. he needed not in his Declaration to say, that he was seised in Fee;

Pasch. 34. et 35. Eliz. Taylors case, if the Plantiffe in a quare impedit alledg∣eth seisin in Fee, and the Defendant confess the seisin by Vsurpation, this is a sufficient confession of the seisin in Fee. Fitzherbert Title Travers 154. a good case to this purpose, and in Moils case cited before on the other side, the Plantiffe doth not mention in his Declaration a seisin in Fee absolute, and the Defendant saith, that A. was seised, and gave to the Plantiffe, as long as A. had issue of his body, he needs not Traverse the absolute Fee, Pasch. 33. Eliz. in the Com∣mon Pleas, where there was a stronger case; to the replication the Defendant said, that the Countess of Devon. was seised, and leased for life, the remainder to her self for life, the other saith, that the Countess was seised in tail, and Tra∣verseth that she was not seised in Fee, it is there said, that the Countesses estate in Fee need not to be Traversed, and yet it was there agreed, that in regard it was but matter of form, it was aided by the Statute of Jeoffales, for that was moved in arrest of judgement. Tanfield chief Baron, in the principal case the issue of the Feoffor is remitted without entrie notwithstanding the lease, because it is not in possession, but a lease in remainder, and therefore the title of the Les∣sees is distrained before entrie by the Defendant, and therefore the Defendant hath not answered the entrie upon the Lessees, for you by your plea destroy the title to this Term which you have allowed them, before they were ever in posses∣sion thereof, and the Declaration is, that they were possessed of a Term for years, and that you ejected them, and to this you give no answer upon the mat∣ter, for clearly if Tenant in tail make a lease to commence at a day to come, and dieth before the day, this is meerly void by his death, ad quod non fuit respon∣sum: see Plowden in Smith and Stapletons case, for there it is made a quere; and notwithstanding that, Tanfield chief Baron, with the ass••nt of the whole Court pronounced, that judgement should be entred against the Plantiffe imme∣diately, and so it was done.

Bents case.

IN a suit depending in this Court between Bent, and another for a Close, it was ordered, and an Injunction accordingly awarded, that the Defendant should suffer the Plaintiffe to injoy the said Close with the appurtenances until &c. and contrary to this order, the Defendant had put his Cattle into the Close, and thereupon an Attachment issued to answer this contempt, and he said, that he put in his Castle for a title of Common, and it was ruled, that this was no breach of the Injunction, because the Common was not in question in the Bill, but only the title of the Close, wherefore he was discharged of the contempt, and with the appurtenants doth not include the Common to be taken in the said Close.

Henry Clares case.

UPon a motion made by Serjeant Barker it appeared, that one Henry Clare was indebted to the King, and was seised of a third part of certain lands in Norfolk, and that Mr. Richardson of Lincolns Inne was seised of other two Acres of the same laud as Tenant in Common, and the beasts of Mr. Richard∣son pastured promiscuously upon all the land, and Henry Clare put more Cattle in, and upon proces to levy this debt for the King, the Sheriffe took the Cattle of Mr. Richardson, and sold them, and it was now ruled, that in regard, it was lawful for a Tenant in Common to put in his Cattle upon all the land, and that if they depasture all the grass the other hath no remedy, and for that cause the Sheriffe could not take those Cattle for the debt of another Tenant in Com∣mon,

but otherwise it would be if the Cattle had been levant, and Couchant upon the land of the Kings debtor, and in the principal case the Sheriffe was ordered to restore the monie to Richardson for which they were sold, and that if they were worth more, yet the Sheriffe should not be charged therewith, except it could be made appear some fraud in the sale, or that sufficient suerties were to pay and discharge the dutie, but if my Cattle are levant and Couchant upon the land of the Kings debtor, the King may distrain them damage Feasant, but he cannot di∣strain them for the debt, by Tanfield chief Baron, and Altham clearly, to which Baron Bromley consented, but Snig said, beware of that.

Smith and Jennings case.

VPon evidence to a Iury, it was said by Tanfield, that if a man make Char∣ter of Feofment of lands in two Towns, and a Letter of Attorney to make livery, and before livery made by the Attorney, the Feoffor himself maketh livery of the land in one Town, this is a Countermand of the Letter of Atturney, and so livery cannot be made by the Attorney in the other Town; and quere if the Towns were in several Counties. Bacon the Kings Solicitor said, that if a man make a Charter of Feofment of two several Acres, whereof one is in lease for years, and the other in demeasne, and the Feoffor makes a Letter of Attor∣ney to make livery, and before that be executed, the Feoffor himself makes live∣ry, now although that one Acre cannot pass by this livery, because it is in lease, yet this is a Countermand, and revocation of the authoritie given by the Letter of Attorney, for his intent is manifest so to be, to which Tanfield, and all the Court agreed. Hobert Attorney general said, that in this case, although that one of the Acres was in lease, yet in regard it appeareth not, that the Lessee was in actual possession, therefore he conceived, that it should be construed, that the Lessee was not in actual possession at the time of the livery made by the Lessor in the name of all, and in respect there was no house upon the Acre in Lease, it may be intended, that the Lessee should be in actual possession, but for that cause he rather conceived, that it should be construed, that the Lessee was not in possessi∣on, and so the livery might well operate to pass it. Tanfield, and all the Court denied, that the livery was good to pass it, although that the Lessor was in actu∣al possession; but where Mr. Atturney alledged further, that before the livery made an Infant had a Term for years in this Acre in lease, and that the Feoffor at the time of the livery, was gardian to the Infant, and thereby had a possession therein, and therefore the livery made in the other Acre in the name of all, should be good to pass all, to which the Court agreed, and thereupon directed the Iury to finde the livery, and seisin to be made of all: and in this case the Court inclined, that because this Feofment was made, but ten dayes before, that the Feoffor com∣mitted Treason, and in asmuch as it was made to the use of the son being an In∣fant, and not upon consideration of marriage, that therefore the Feofment should be fraudulent, and void as to the King, but the Atturney general said, that this Feofment was made in performance of a precedent agreement, viz. it was agreed that the Feoffor should make such a conveyance to an use &c. and that the wife of the Feoffor also being an Inheritrix, should make such a conveyance of her land which was done accordingly, and upon proofe of this agreement, the Court in∣clined that it was no fraud, and in this case it was ruled by the Court, if parties have matter of evidence by the Records of this Court, they ought to produce the Records themselves, for Copies of them are not allowable.

It was said by Altham, and agreed by the Court, that if an Information be exhibited for intruding into a Close the 24th. day of March, and for the aspor∣tation

of 9. Cart Loads of Wheat betwixt the 24th. of March, and the first of October, the which the Detendant converted &c. and upon not guiltie pleaded the Jury found, that the Defendant took three Cart Loads of the said Corn up∣on the 24th. day of March, and after before the first of October they took also three Cart Loads more, and damages were assessed for all, that here no judgement shall be given upon this verdict, for the Information doth not charge the Defen∣dant with the taking of any part upon the 24th. day of &c. and then in regard that damages are more, judgement can be given for no part of it: see Cook lib. 5. Plaisters case: but this case being moved at another day; Tanfield said, that he having inspected the Record, he found the verdict insufficient for another cause, because the Jury found, that as to one Cart Load of Wheat to the value of 20. l. the Defendant was guiltie, and doth not mention to what damage, viz. to the damage of 100. s. or otherwise, and by him ad valentiam is not sufficient, with∣out shewing also to what damage; and for that cause, by him a venire facias de novo, ought to be awarded, and so it was done by the Court.

Edwards case.

EDwards case was, that an erroneous judgement was given in a Coppihold Court, where the King was Lord, and this was in a Formedon in remain∣der, and it was moved now by Serjeant Harris, if the partie against whom it was given may sue in the Exchequer Chamber by Bill, or petition to the King, in the nature of a writ of false judgement, for the Reversal of that judgement. Tanfield seemed, that it is proper so to do, for by 13. Rich. 2. if a false judge∣ment be given in a base Court, the partie grieved, ought first to sue to the Lord of the Mannor by petition, to reverse this judgement, and here the King being Lord of the Mannor, it is very proper to sue here in the Exchequer Chamber by petition, for in regard that it concerneth the Kings Mannor, the suit ought not to be in the Chancery, as in case a Common person were Lord, and for that very cause it was dismissed out of the Chancery, as Serjeant Harris said: and Tan∣field said, that he was of Councel in Pettishals case in the time of the Lord Brom∣ley, where it was debated at large, if such a judgement ought to be reversed by petition in the Chancery, in case where a Common person was Lord, and at last it was decreed, that it should be, as in that case of Patshal, and for the same rea∣son here the King being Lord; and therefore day was given till the next Term to shew their errours; and Serjeant Harris said, that the errors are in effect no others then were in the case 9. Eliz. Dyer fo. 262. and in Godmanchesters case, and it was adjourned.

Scot and his wife against Hilliar.

SCot and his wife Plantiffs, against Hilliar for these words spoken of the wife, viz. she would have cut her husbands throat, and did attempt to do it. Hut∣ton Serjeant, in arrest of judgement said, that these words are not actionable, for the will or attempt is not punishable by our Lawe, and he vouched Cockains case Cook lib. 4. cited in Eaten and Allens case, but by the Court an Action lies, for the attempt is a cause for which the husband may be divorced, if it were true, and it is a very great slander, and Baron Snig said, that in the same Term a judgement was given in the Kings Bench, and was affirmed in the Exchequer Chamber upon a writ of error for these words. He lay in the high way to rob me, and therefore let judgement be entred for the Plan̄tiffe, but it was adjudg∣ed in the principal case, that for the words she would have cut her husbands throat no Action would lie.

Gooches Case.

A Coppyholder surrenders into the hands of the Customary Tenants, to the use of Anne his Wife, and after before any Court the said Coppyholder sur∣renders the Land into the hands of other Customary Tenants, to the use of the said Anne for her life, the remainder to Percie in Fee, upon condition that he in remainder, & his Heirs should pay 20. s. per annum at Michaelmas for ever, the first payment to commence immediacely after the death of the said Anne, viz. at the next feast of St. Michael, and this to be paid in the Church Porch or D. to the Church Wardens of D. in the presence of four discreet Parishioners, or other∣wise that a stranger should re-enter, and at the next Court both these surrenders were present, and the Steward admitted the said A. according to the second sur∣render, and she dyed, and now upon pretence, that the rent of 20. s. was not paid by the Heirs of him in remainder, the Heir of Gooch who made the surrender had entred, and thereupon an Action was brought, and upon the evi∣dence the Jury to the County of Bedford now at the Bar: These matters were moved by Serjeant Nichols: That a surrender into the hands of Customary Tenants cannot be Countermanded, and therefore the second surrender void, and the admittance shall work to such uses as the first surrender was made, as in Anne Westwicks Case, Cook Lib. 4. And to prove that a surrender into the hands of Customary Tenants is not countermandable, he said, that it is not countermandable by death, nor surrender, Cooke lib. 4. in his Cop∣pyhold Cases. That a presentment in the Court may be after the death of the surrenderer, and the admittance thereupon is good, and he compared it to the Case of the delivery of a Deed, as an Escroll which may be delivered as his Deed after the death of the Maker, as it is in Jennings and Braggs case Cook lib. 3. which was not denyed by the Court. Serjeant Dodderidge said, that when a surrender is made upon condition that he shall pay a summe of money to a stran∣ger, these words make an estate conditionall, and give power implyedly to the Heirs of the party who did surrender, to re-enter for non-payment, and the words which give power to a stranger to re-enter, are meerely void: neverthe∣lesse the precedent words shall stand, and make the estate conditionall, Tanfield, Littleton saies that such a re-entry is void, for a re-entry cannot be limited to a Stranger. Nichols Serjeant said, that if a surrender be made, that he shall pay so much money, that this makes the estate conditionall, and gives a re-entry to the Heirs of him who did surrender. But when it goes further, and doth not leave the condition to be carried by the Law, in such case all the words should be void, because it cannot be according to the intent, as in the case of a reservation of rent, the Law will carry it to the Reversion, but if it be particularly reserved, then it will go according to the reservation, or otherwise will be void, and so here Tanfield: Admit that here was a conditionall estate by vertue of the Surrender last made, and this condition is also to be performed to a stranger, which general∣ly ought to be taken strictly, yet, as it is here, he who will take advantage there∣of, ought to prove a voluntary neglect in the party, in the not performance of the Condition, and inasmuch as there is no certain time appointed, when the payment of this Annuall rent should be made, but generally at Michaelmas, next after the death of the said Anne, thereby in this case the Chuch-wardens ought to notifie the death of the said Anne, before the first day of payment, by reasonable space, or otherwise the condition is not broken, and also it is appointed here to be paid in the presence of four discreet Parishioners, by the party who should perform the condition, yet by intendment he hath no notice, who are discreet, or who are

not, especially he being an Infant, as in our case he is, and therefore although the condition is to be performed to a stranger, which generally ought to be performed strictly, according to 12. E. 3. Yet this is to be intended only in such cases where the party had certain notice of all circumstances requisite for payment thereof, and therefore he directed the Iury, that for want of knowledge of such circumstances, they should give a Verdict that the condition was not broken; And Dodderidge Serjeant moved that this matter might be specially found. Tanfield said, the Iury knows our opinion, and therefore leave it to them, and the Verdict was given that the condition was not broken: See Term Pasch. that proofes by deposition taken here in a former suite, shall be allowed in this, notwithstanding all the par∣ties be alive; and it was adjourned. Note, that in Staffords case in the Court of Wards this Term, Flemming and Cook were of opinion with Tanfield here, viz. That notice ought to be given to the Infant in the Case above-said.

I. S. was Parson of D. as appropriate, and A. is Vicar, and the King is Pa∣tron of the said Vicaridge, and debate was between the Parson and the Vicar, this Suite ought to be in the Exchequer for these Tithes, and by the Court it may be commenced accordingly by English Bill in the Exchequer, or by Action to the Office of Pleas, for it is apparant that the King is Supreme Ordinary, this was Pasch. 9. Jacobi.

Sir Stephen Leazures case.

IN Sir Stephen Leazures case upon a charge upon Sir Thomas Gresham de∣ceased, Process issued to the Sheriffs of London to inquire what Lands the said Sir Thomas had in London at the time of the debt accrewed, and to whose hands, &c. And the Inquisition found, that the said Sir Thomas was seised of divers Messuages in London in four severall Parishes, viz. in, &c. And now the Maior and Comminaltie of London came as Tenants of the premisses, and de∣manded Oyer of the Inquisition, and then demurred thereupon, and by the Court the Inquisition is insufficient, for the words of divers, &c. are so generall, that no exception thereupon may be made, nor the party can give no answer thereunto, so of an Office found in the Court of Wards, as it hath been divers times here used, see Carters case Pasch 8. Jac. in the Court of Wards.

Kitchin against Calvert.

SEe the Case before, fo.—many Arguments therein at the Bar, by Bridge∣man, Ireland, Serjeant Hutton, and the Atturney Generall in Michaelmas, and Hilalry,—Jac.— And now the Barons argued, and first, Bromley Puisne Baron argued, for the first matter which is when a Church being void, the Patron contracts with Parkinson for money to be given to present Kitchin, the money to be given by Parkinson, and Kitchin not knowing of this Symonie, is presented, instituted, and inducted thereunto, whether this be void or not. The 2d. Matter is, admitting that this is void, & that the Queen presented Co∣vell who died before Institution or admission, if this presentation be good to Cal∣vert, without a Repeal of the Presentation made by the Queen, and it seems to be in both points for the Plaintiff. To the first point be said, That the intent of the Statute was to cradicate all manner of Symonies, and therefore the words are not, if any man give money to be presented, but they are if any present for

money, and the Iutors here found 20. l. to be given, and nothing for what it was given, or to whom it was given, for if money be the meede, a Presentation is void, and therefore if I. S. be Patron of the Church of D. which is void, and a stranger saith to me, procure the Presentation for A. and you shall have 100. l. and he procured A. to be presented: here if the Patron had notice of the money given to me, this Presentation is void, but otherwise not, and in our case with∣out notice of the Parson the Admissor, and all which ensued thereupon is void, by reason of the Symonie in the Patron, and it is void as to the Parson also, and if in this Case we are not within the words of the Statute, yet we are within the intent cleerely, as upon 1. Ed. 6. of Chanteries, an estate made for years, or for life to Superstitious uses shall be within the intent, although not within the words of that Statute, as it appears in Adams and Lamberts case Cooke lib. 4. So the Statute of 11. H. 7. should be construed to meet with Cases of like mis∣chief, as it appears in Sir George Browns case, Cooke Lib. 3. and Panor∣mitane saith that Simonia est Studiosa voluntas emendi, vel vendendi aliquid Spirituale, vel Spirituali annexum cum opere subsequente. To the second Point, it seems that the Presentation made by the King to Calvert is good with∣out aid of the Statute of 6. H. 8. cap. 15. for Covell who were the Presentee of the Queeen had nor interest, no estate, and yet if he had, it would be void by the death of the Queen, for the presentation is but a commendation, and there∣fore if the Patron present his Villaine, this maketh no infranchisement, and so if Lessee for years of a Patronage be presented, this doth not extinguish his Term. And whereas it hath been said, that the Kings Grant cannot be construed to two intents, true it is if it be to the Kings prejudice, but otherwise it is, if it be for his benefit, as plainly appears in Englefieldss case Cook lib. 7. See 17. Ed. 3. fo. 29. Also it is without question, that the King may actually revoke his Presen∣tation as it appears by 28. Ed. 3.47. And this implied Revocation is as good being for the Kings benefit, as an actuall or expresse Revocation: Dyer 18. Eliz. 348. And it was adjudged in Pasch. 3. Jac. in the Common Pleas, Rot 1722. one Williams case, that an Actuall Revocation or Repeale is not necessary; And so it was adjudged, Trin. 8. Jac. Rot. 1811. in the Bishop of Chichesters case, and therefore the King may make a Presentation to a Church which belongs to him by reason of Wardship under the Seale of the Court of Wards, because the presentation is only a Commendation as it was there said, and so it was agreed also, Trin. 8. Jac. at Serjeants June by Flemming, Cook, and Tanfield in the Lord Windsors case, referred unto them out of the Court of Wards, and there it was said by Cook, that the King may present by Parol, as it appears by 17. Eliz. Dyer, and that a Second Administration may be well granted without Re∣peal of the first, and also it seemes, that the Statute of 6. H. 8. cap. 15. doth not extend to a Chaplain, for he is not a Servant within that Statute, nor a Presentation is not a thing within that Statute, and moreover in this Case, Covel who was the Queens Presentee is not in life, and therefore this Case cleerely is out of the Clause of the Statute of 6 H. 8. and so he concluded on the whole matter, that Iudgement ought to be given for the Plaintiff. Altham the second Baron accordingly; The Presentation made to Kitchin is void, and the Admission, and all subsequent thereupon is void also, for the words of the Sta∣tute are, that if a Presentation be made for monie, it shall be void, and that the King may present that Turne, and therefore the want of privity in the Incum∣bent is nothing to the purpose, as to the avoiding of the Benefice, but his want of privitie availeth to excuse him of being Simoniacus: yet because he is Simoniace Promotus the presentation is void, and the King shall have it by the expresse words of the Statute, and therefore as it seems if in this Statute there had been an expresse saving of the interest of the Incumbent, by reason of his innocency, yet such a saving of Interest had been void, and repugnant, in respect that it was expresly given to the King before, as it is in Nichols case in Plowden upon the Stat. of 1. H. 7. See 1. Mar. Dyer, and 7. Eliz. Dyer 231. such a saving doubted

if it be void, and in Cook lib. 1. Altonwoods case, a saving Repugnant to the expresse words of the Premisses is void, and so in our Case the Presentation is given to the King expressely, and therefore if there were a saving in the words subsequent, this were void, much more in our Case where there is no saving: And to prove that by the Symonie in the Patron, that the Patron shall be pre∣judiced, he vouched 42. E. 3. fo. 2. It goods be given to B. by A. this is by fraud in A. to the intent that he may defraud another, although B. is not knowing of this friend, yet the gift is void as to him 34. E. 1. Title Garranty accordingly, and Burrells case Cook lib. 6. upon the Statute of 27 Eliz cap. 4. to the same purpose. To the second matter, it seems that by the Queens death, her Presentation is determined cleerely, and so in case of a common person, for if an Admission, &c. should follow after the death of the Presentor, this is without any Authority of the instrument of Presentation, for although there were no Admis∣sion, there is no Presentation, and he said that the Presentation passeth no inter∣est, but is as a Commendation, and therefore he compared it to the Case of Say and Fuller in Plowden Com. If a Lease be made for so many years as a stranger shall name, there ought to be certainty of years appointed in the life of the parties, or otherwise it will be void, and in 38. E. 3.3. If a Bishop pre∣sent and die before, &c. Now the King shall present anew, and also there it ap∣pears that the King may present by Paroll well enough, and so it is said in 34. E. 3.8. tit. Quare impedit 11. That a Presentment made by the Bishop becometh null, and void by his death, and therefore it appeareth in Fitzh. Office of Court 29. that licence to alien granted to the King is void by the Kings death, & there needeth no actual Repeal or recital of the new presentation, & yet I agree that the King may make an actual repeal if he will, as it appears by divers cases which have been cited before, but that is of necessity to be done, and as it seems the words of the Statute 6. H. 8. prove that before this Statute a second Grant made, the first void with∣out actual repeal, in case where the thing passed by the Grant, and by 38. E. 3. fo. 3.4. it appears that a second Presentation made by the King, was good without a repeal of the first, and by Gascoigne 7. H. 4.32. if the King make a Presenta∣tion to one, and then presents another, without recitall or repeal of the first, yet the Bishop ought to receive the latter Presentee, for it is good without actual re∣peal, wherefore judgement ought to be given for the Plaintiff. Snig Baron said, that as the Action is brought, judgement ought to be given for the Plaintiff, but if the Plaintiff had brought a Quare impedit, peradventure I should have been of another opinion; And as to the point of Symonie by the Civill Law, it was punishable by deprivation, and the guilt of the Patron should prejudice the Par∣son, as to matter of Commodity in the Parsonage, and at the Common Law, if the Parson will pleade such Presentment, he should be prejudiced, as appears by our Books, and hereby the incumbency the words of the Statute will not be sa∣tisfied, for then the Queen should not Present, if an usurper present, and the Presentee is in by six moneths, this gives Title of Presentation to the King a∣gainst the rightfull Patron, also it seemeth, That if I. S. hath an Advowson, and A. purchase the next avoidance to the intent to present B. and the Church becomes void, and A. presents B. this is Symonie by averment, as by good pleading the Presentation of B. shall be adjudged void. To the second Point, in respect that the Plaintiff had the possession by induction, it is no question but he may retaine a possessorie Action for the Titles, But if it were in a Quare impedit, it would be materiall whether a Repeal should be in the case or not, according to the Presidents in the Booke of Entries, fo. 303, 304, 305. for if a Licence be Granted to purchase in Mortmaine, this may well be executed after the death of the Queene, as it appeareth by Fitzherberts natura brevium expresly, and so in Dyer, a license of Transportation doth not cease by the Kings death 7. H. 4. in the Countess of Kents case, it appears, when the King makes a grant which is void, yet there shall be no new grant without an

actual repeal, but it seems we are out of the intent of the Statute of 6. H. 8. because the words during his pleasure are not in the grant or Patent, and so upon the whole matter judgement shall be given for the Plantiffe. Tanfield according∣ly, the case is, that the Defendant had prioritie of the possession of the Corn for which the action is brought, and yet it seems judgement ought to be given for the Plantiffe: and first, as this case is, here is Simonie by the Civil Law, and the partie had his benefice by Simonie, although he be not conusant thereof. Secondly, admit that here was not Simonie by the intendment of the Civil Law, yet the Statute hath made an avoidance of the benifice in this case, although it be not Simonie, for the Statute speaks not one word of Simonie throughout the Act, and yet by express words it doth avoid such presentations as this is, and as to the Civil Law, such benefice is to be made void by sentence declaratorie, but it is not void ipso facto, as it seems in the case where a common person was consen∣ting to the Simonie, but the text of the Civil Law sayes expresly, that the Church ought not to be filled Corruptivè, or by corruption, and the Civil Law expresseth such a person as is in our case, by Simoniace promotus, and calls him who is particeps criminis Simoniacus, and he who is Simoniacus, is by the Ci∣vil Law deprived not only of the benefice ipso facto, but also is deprived to be a Minister, and adjudged guiltie in Culpa et poena. Petrus Benefieldus a late writer & of good authoritie saith, that if a friend give money to a patron, to make a pro∣mise to him &c. and the incumbent payes it, such an incumbent is Simoniacus by the Civil Law, and so if the incumbent pay the mony not knowing it untill after the induction, yet he is Simoniacus, and by him if a friend gives money, and the Parson is thereupon presented, though the Parson if he knew not of the mo∣ney given, yet he shall be deprived of the benefice, and this difference was certi∣fied by Anderson, and Gawdey, to the Councel table upon a reference made to them by the King, touching the filling of benefices by corrupt means, and the Statute of purpose forbears to use the word Simonie, for avoiding of nice con∣struction of that word in the Civil Law, and therefore the makers of the Act sets down plainly the words of the Statute, that if any shall be promoted for money &c. so that by these words it is not material from whom the money comes, and then in such cases for the avoiding of all such grand offences, a liberal construction ought to be made, as hath been used in such cases, and therefore he remembred the large construction which was made upon the Statute of fines, in the Lord Zou∣ches case lib. Cook 3. and so upon the Statute of usurie, it hath been adjudged, that if money be lent to be re-paid with use above 10. l. in the hundred at such a day, if three men or one man so long live, in these cases all such bargains and contracts are void within the intent of the Statute, as it hath been adjudged in the Common Pleas, and so it is in Gooches case Cook lib. 5. upon the Statute of fraudulent conveyances, and secret Ioyntures; also upon the Statute of Si∣monie it was adjudged, although some of the Common Pleas doubted of it, in regard a father is bound to provide for his son; and Rogers and Bakers case in this Court was an antient case, and adjudged for the Plantiffe: and as to the o∣ther point, it is found by the verdict, that the presentation made by the Queen to Covel is not revoked, nor admitted, which words implie that Covel is still li∣ving in case of a special verdict, and therefore to argue to that point, as if it were found that Covel was living, yet he conceived, that the presentation without in∣stitution and Induction is determined by the Queens death, and therefore in 2. Ed. 3. a license of Alienation clearly is not good in the time of another King, for the license saith which are holden of us &c. and by the death of the King they are not holden of him. Fitzherberts natura brevium contra 16 H. 8. the nature of a presentment is explained, where an Infant would avoid his presentation, and in the principal case the Bishop cannot make any admission upon this presentation of Covel after the Queens death, for he cannot do that in any manner according to the presentation, because that is determined by the Queens death, and there∣fore

it seems clearly there needs no repeal in such a case, although it appears by some presidents, that repeals have been used in such cases, and as to the case 17. Eliz. Dyer 339. that proveth not that there ought to be any repeal, for it ap∣pears there, that judgement was given upon a reason altogether different from our case, and that was, because a presentation was obtained of the Queen, a quare impedit depending by her, of which suit she had no notice, and for that cause her second presentation was void, and that was the true reason of that judge∣ment, as it is also put in Greens case Cook lib. 6. and I was present Mich. 17. Eliz. when this case was adjudged, and the sole reason which they gave for the judgement was, because the presentation by intendment could not take away the Action attached by the Queen, for then the Queens grant should enure to a double intent, which the Law will never tollerate without express words purporting so much, but in our case there is no such double intendment, and therefore &c. but if there had been an admission, and institution pursuing the presentation of Covel, although no induction, yet peradventure in such case, there ought to have been an appeal, because in such case it is not only the Queens Act, but of the ordinary also, interposing, which is a Iudicial Act, also without question, we are out of the Statute of 6. H. 8. for here is no grant made by the Queen, and a presenta∣tion clearly is not within that Statute, and for that other reason the presentation of Calvert is good, without recital of the Queens presentation: also clearly if there ought to be a repeal in the case, yet it is not examinable in this Action of Trespass which is possessorie, and for the profits only, but it may be examinable in a quare impedit, and as to Greens case Cook lib. 6. which hath been used as an authoritie in this case, that differs much from our case, for there the thing which made the Queens presentation void, was contained within the very Charter of the presentation, and therefore differed from our case, wherefore he commanded judgement should be entred for the Plantiffe, and so it was.

Halseys case touching Recusancy.

THe case in the Exchequer Chamber touching the payment of the Kings Ma∣jesties debt due for the Recusancy of John Halsey, as Recusant convict de∣ceased, with the lands and goods bought in the name of John Grove, and Ri∣chard Cox Defendant in this Court, that John Halsey was indicted and convic∣ted for Recusancy the 18. day of July Anno 23. Eliz. and so remained convicted without submission till his death, who died the last day of March 3. Iac. and after his conviction, viz. after the 40. year of the Raign of the late Queen Elizabeth did purchase with his own money divers leases for years, yet to come of lands in the Countie of Worcester, and Warwick, in the name of Richard Cocks for him∣self in trust, and likewise did with his own money purchase certain leases for years, yet to come of lands in the County of Hereford, in the name of the said John Grove, all which purchases were in trust for the Recusant, and to his use; Margaret Field is his next heir, who is no Recusant, Iohn Halsey hath not paid 20. l. a moneth since his conviction, nor any part thereof, these lands and leases were seised into the Kings hands, for the satisfaction of the forfeitures due for the Recusancy of the said Halsey 14. August 5. Iac. Thomas Coventrie argued for the Defendant; the question is, whether these lands which were never in the Re∣cusant, but bought in the name of the Defendants in manner aforesaid, be liable to the payment of his Majesties debts by the said Recusant as above said, or not: there are three points considerable in the case.

• First, if lands purchased by the Recusant, in the name of others in trust are liable to his debt.
• Secondly, if the land of a Recusant may be seised after his death.
• Thirdly, if they shall be charged by the Statute of 1. Iac. as to the first, it seems they are not, wherein I shall endeavour to prove three things.
  • First, that such land was not liable to debt by

• ...
  • the Common Law.
  • Secondly, that they are not liable to debts by the general words of the Statute Law.
  • Thirdly, that they are not liable to debt by any word within the Statute of primo Iac. as to the first he observed, that here is no fraud put in the case, but that these lands and leases were never in the Recusant, so that before that they were conveyed to the Defendants, they were not liable to this debt;

and I alwayes observed, that which the common law calleth fraud, ought to be of such nature as shall be tortious, and prejudicial to a third person, and put him in a worse estate and condition then he was before, and then he who is so pre∣judiced in some cases should avoid such conveyances by the common Law: 22. Assises 72.43. Ed. 3.2. and 32. — the Defendant in debt after judgement aliens his goods, and he himself takes the profits, yet the Plantiffe shall have them in execution; so that if a man binde himself, and his heirs in an Obligation, and dies, and assets descend to his heir, who by Covin aliens those assets, yet he shall be charged in debt; for in these cases the Plantiffe had a lawful debt, and such lands and goods before the alienation were liable, and that former interest was intended to be defeated by those alienations, and therefore they are void: but of the other side, where no former interest of the partie is wronged, there no fraudu∣lent conveyance was void at the Common Law; and therefore if Tenant in Knights service had made a fraudulent Feofment to defraud the Lord of his ward∣ship, this was not aided by the Common Law until the Statute of Marlebridge, for the title of the Lord was not prejudiced or wronged by this Feofment, because it was subsequent to the Feofment, also after the said Statute the Lord was without remedy for his release, for it is agreed in 17. Ed. 3. fo. 54. and 31. Ed. 3. Collation 29. and therefore at the Common Law, if cestuy que use, had bound himself and his heirs in an Obligation, and died, if the use descended to his heir, none will say, this use was assets to the heir, and so was Rigler and Hunters case 25. Eliz. as to the second point it seems, that the general words of a Statute shall be expounded according to the rule and reason of the Common Law, and by the Common Law such confidence is not extendible, therefore &c. Westmin. 2. cap. 18. which gives the elegit, hath these words medietatem terrae, and with∣in those words an use was never extendible by that Statute 30. Ed. 3. because it was not an estate in him, and so if a man be indebted for Merchandise or money borrowed, and makes a gift of his lands and Chattels to defraud Creditors, and ta∣kes the profits himself, and flieth to the Sanctuary at Westminster, or Saint Mar∣tins, and there abideth by conclusion to avoid the payment of his debts, it is there∣by enacted, that Proclamation shall be made at the Gate of the Sanctuary, where such person resideth by the Sheriffe, and if such person doth not thereupon appear in person, or by Atturney, judgement shall be given against him,* 1.2 and execution awarded, aswel of those lands and goods given by fraud, as of any other out of the same Franchise, these words are more particular then the Statute of West∣minster the second, and yet it was doubted, if it did extend to executions for debt, as it appears by 7. H. 7. and 11. H. 7.27. and therefore in 19. H. 7. cap. 15. an Act of Parliament was made, that execution for debts, Recognizances, and Statutes, should be sued of lands in use. As to the third it seems that, that Sta∣tute doth not make lands in use liable to debts, the words of the Statute are, that the King shall seise two parts of the lands, Tenements, and Hereditaments, leases of Farms of such offendors, so that they are as general as the words of the Statute of Westminster 2. cap. 18. and here those lands and leases were not the Recusants, for he had but a confidence in them: the first clause of the Statute doth not extend thereunto for two causes.

• First, in regard that it never was in the Recusant, and this clause extends, only to such conveyances which are made by any man, which hath not repaired or shall not repair to some Church; for the disjunctive words do not extend throughout that branch, but to the last part there∣of, viz. that which cometh after the word (and) for otherwise this would extend to conveyances made at any time without limitation, which should be against the

• meaning of the Act.
• Secondly, this Branch provides what shall be done con∣cerning the King touching the levying, and paying of such summes of money, as any person by the Lawes of the Realm ought to pay, of else to forfeit &c. and by the Statutes before made nothing was forfeited, but for such time as is men∣tioned in the Indictment, which in our case is but 6. moneths, but out of this branch a strong argument may be made, in respect that the Statute avoids all conveyances made by Recusants, in trust by express words, but saith nothing to conveyances made by others to the use of Recusants, and therefore this Statute doth not extend unto it;

if Tenant by Knights service infeoffs his heir within age, and dies, the Lord may enter upon the heir without suing an action, but if a Feofmenche made to a stranger, there he cannot enter, but ought to bring his Action according to the provision of that Statute, because it may be to the use of the Feoffee, but no such provision is made for the heir, the Statute of 3. Jac. cap. 4. provides by express words, that the King shall seise two parts of all the lands, Tenements, and Hereditaments, Leases, and Faims, that at the time of such seisure shall be, or afterwards shall come to any of the hands of the said offendors, or any other to their use, or in trust for him, or her, or at his, or her dispose, or disposition, or whereby, wherewith, or in consideration whereof such offendors, or their families, or any of them shall or may be relieved, maintained, or kept &c. the different penning of these Statutes proves the diversitie of the meaning thereof, this Statute is a new Law which gives to the King this penalty which he had not before, and in new manner, for it appoints, that the partie shall be convicted by Proclamation, and that being so convicted, he shall alwayes pay the said penaltie, until his submission without any other conviction 3. Jac. cap. 4. and also limits a manner how this new penaltie shall be levied, viz. by seisure of two parts of the land &c. then when a Statute gives a new thing, which was not at the Common Law, and limits a course and means whereby it shall be levied, that course ought to be pursued, and it cannot be done in any other manner, the Statute of 8. H. 6. cap. 12. makes the imbesting of a Record Fe∣lony, and that this shall be inquired by Iury, whereof one halfe shall be Clarks of some of the same Courts, and that the Iudges of the one Bench, or of the other shall hear and determine it, and the case was, that part of the offence was done in Middlesex, and part in London, so that the offence could not have such procee∣ding as the Statute appointed, and therefore it was holden, that it should not be punished at all. Mich. 41. et 42. Eliz. Betwixt Aggard and Standish: the Statute of 8. Ed. 4. cap. 2. inflicts a penaltie upon him, that makes a retainer by parol, and moreover it is thereby ordained, that before the King in his Bench, before the Iustices of the Common Pleas, Iustices of the Peace, Dyer and Ter∣miner, every man that will, may complain against such person or persons, doing against the form of this ordinance, shall be admitted to give information for the King, and it was holden, that the informer could not sue for himself, and the Queen upon this Statute, for an offence done in any Court not mentioned in that Statute: the Statute of 35, Eliz. cap. 1. appoints, that for the better and spe∣dier levying and Recovering, for and by the Queens Majestie, of all and singular, the pains, duties, forfeitures, and payments, which at any time hereafter shall grow due, or be payable by vertue of this Act, and of the Act made in the 23 d. year of her Majesties Raign concerning Recusants, that all and every the said pains, duties, &c. may be recovered to her use, by Action of debt, Bill, plaint, or information, or otherwise in any of her Courts of her Benth, Common Pleas, or Exchequer, in such sort in all respects, as by the ordinary course of the Com∣mon Lawes of this Realm, any other debt due by any such person, in any other case should or may be recovered, wherein no essoin: &c. Note that this Statute extends not to any penaltie upon the Statute of 28. Eliz. cap. 6. also the Common Law doth not give any means to levie a debt upon a trust: and as to the general point, it seems that no land can be seised after the death of the Recusant, 23.

Eliz. cap. 1. enacteth that every person of the age of 16. years, which shall not repaire to some Church, &c. but forbear the same contrary to the Tenor of the Statute made in the first year of her raign for uniformity of common prayer, and being thereof lawfully convicted, shall forfeit to the Queen for every moneth which he or she shall so forbear 20. l. And that statute doth give no forfeiture at all for Lands: And also it giveth no penaltie without conviction, so that the death of the party before conviction dischargeth all, and so without question it was at that day. This last Point seems to be remedied in part by the Statute of 28. Eliz. cap. 6. for thereby if the party be once convicted, he shall alwaies pay after with∣out other conviction, and this Statute gives also a Seisure, but before any seisure. Three things ought to concur,

• 1. Recusancy.
• 2. Conviction.
• 3. Default of payment. And the last of these was the t••ue cause of the seisure, viz. That is, the contempt of not payment.

Therefore it was adjudged in Sir William Greenes case: that this seisure shall not go in satisfaction of such debt, but the King shall hold it as a penalty for the contempt untill the debt be paid, so that when a Sta∣tute imposeth a penaltie for a contempt, as the contempt is personall, so is the penalty; And therefore the death of the party before that it be excuted or turn∣ed in rem judicatam, dischargeth all: and I shall prove it by the different plea in an Action upon a penall Statute, and other common Actions, and therefore in debt, not guilty is no plea, but in debt upon a penall Law it is a good Plea, for in truth untill it be adjudged, it is no debt, but a contempt, Michaelmas 41, 42. Eliz. betwixt Car and Jones, and in debt upon the Statute of 2. Ed. 6. not guilty was adjudged a good plea, Trin. 42. Eli between Morley & Edwards. 2. It may be proved by y^e different forms of judgment, for in common actions, y^e judgment is Quod quaerens recuperet, &c. But in informations the usuall form is, Quod de∣fendens foris faciet, 41. Ass. which implies that it is not perfect untill the Iudge∣ment, and before it is only a contempt, and if so, then by the death of the party it is discharged. Thirdly, I shall prove it by Authority, that the death of the par∣ties before Iudgement dischargeth aswell the contempt, as the penaltie of a pe∣nall Law, 40. Ed, 3. Executor 74. debt lies not against the Executors of a Iay∣lor, who suffers Prisoners to escape, 15. Eliz. Dyer 322. in the like Case the opi∣nion of the Court was, that an Action did not lye against the Executors of the Warden of the Fleet. but there ought to have been a Iudgement against him in his life time, for the Offence is but a Trespass by negligence which dies with the Person, 18. Eliz. Dyer. An Action brought against the Heire, and ruled that it doth not lie, for it is a Maxime that no Law or Statute chargeth the Heir for the wrong or trespasse of his Father: Also it is to be observed in the Principall Case, that the Statute limits the seisure to be by Proces out of the Exchequer, so no seisure can be without Proces, as it may be upon some other Statute; But a judiciall course is hereby prescribed whereupon the Partie may plead with the King for his Land, and therefore if that course be not pursued in the life of the party, it is too late to pursue it after his death: Also the words are, that he shall seise all the goods, and two parts of the Lands of such Offendors. But after his death the goods are not his, but his Executors; and the Lands are not his, but his Heirs, and a seisure by way of penalty relateth no higher then to the time of the seisure: also the words of the subsequent Proviso explame it further, for it it be demanded when the King shall seise two parts, it is answered at the same time when he leaveth the third part, and when must be leave the third part, it is auswered, in the life of the Recusant, That it may be for the maintenance of his Wife, Children, and Family, and after his death he hath nei∣ther Wife, Children, nor Family, for in a Writ of Dower, the Demandant shall say that she was Wife, and not that she is Wife: As to the last matter it seems that the Statute of 1. Jac. cap. 4 hath discharged this Land, admitting that it was not discharged before, wherein the words are, and if any Recusant shall here∣after die, his Heir being no Recusant: That in every such Case, every such Heire

shall be freed and discharged of all and singular the penalties, charges, and incum∣brances happening upon him, or her in respect, or by reason of his or her Ance∣stors recusancy; and as to Walter de Chirtons Case, who being an Accompt∣ant to the Ring, purchased Lands of A. with the Kings money by Covin, and took the profits, neverthelesse upon Inquisition it was adjudged, that they should be seised into the Kings hands for his debt: I agree that to be good Law, because A. when he received the said money of Walter de Chirton, that being the Kings monie, A. immediately thereby became a Debtor, and an Accemptent to the King, and then into whose hands soever these Lands do after come, they are still chargable for that money, and therefore, &c.

Sawyer against East.

AN Ejectione firme was brought by Sawyer against East, for certain Mills in East-Smithfield in the County of Middlesex, the Case upon a speciall Verdict, was this. Queen Eliz. 28. of her raign demised two Mills, one Mes∣suage, and one Curtilage to Potter for 40. years, Potter makes Mary his Wife Executrix, and dies, Mary marries one Burhill, who in 33. Eliz. did demise one Messuage, and one Curtilage to Wilkenson for 20. years, and dies, and Mary intermarries one Hitchmore who by deed inrolled in Chancery 20. Marcii 44. Eliz. reciting the originall Lease, and that he had the whole Right, State, and Interest and term of years which Potter had, and that he surrendred the estate, and term of years aforesaid to the Queen, reciting the matter mentioned in the sur∣render, and that the Interest and Term which Potter had is come to Hitchmore, and that Hitchmore had surrendred the whole right, aswell for 30. l. as for that that Hitchmore did assume at his proper charges to repaire, and new build the said Mills being in great decay, and to give security for the same, did demise the Mills, Messuage, and Curtilage for 40 years to the said Hitchmore rendring rent, with a Covenant to be void for not payment, &c. and after the King demi∣sed the premisses to Ferrers, and Philips two contractors, who enter and demise to Sawyer, who was possessed, untill ejected by East, who claimed under the lease to Hitchmore, and the Iury found that in the Letters, Patents to Hitch∣more, were contained ordinary Covenants to repaire the Mills, and to leave them in good repair, and the Iury also found that Hitchmore had not given any security for the building, and repairing of the Mills, and that the Mills were not new built, nor repaired, and that Hitchmore had pulled down one of the Mills, and that the Term of twenty years is yet in being, and if upon the whole matter, &c. Bromley the Puisne Baron saies, that it seemed to him that judgement ought to be given for the Plaintiff; First, the suggestion or surmise in the Patent being false, in matter of value, and in such a thing, which is proper for the information of the Lessee, causeth the Lease to be void, as in 18. Eliz. Dyer 352. An Abbot makes a Lease for 60. years, the Lessee demiseth to I. S. for 80. years, the reversion comes to the Queen, the 60. years expire, the second Lessee surrenders to the Queen, his Term and Interest which was nothing in substance, to the intention that the Queen should re-grant to him for 20. years, this falsitie avoids the Lease, and yet it is no such Lease which of necessity ought to be recited, and so is 8. H. 7. fo. 3. by Vavisor, if the King at the suit of I. S. grants the Mannor of D. of the value of 50. marks, and this is of the value of 100. marks, and this upon the information of the party, in this case the grant is void, and so is 8. H. 6.28. by Juine, if the King be informed by petition, that such Land is but of the value of 8. l. a year, which in truth is of greater value, the patent is void, 11. Ed. 4.1. The Patentee suggests that a surrender was made, whereas in deed there was no Surrender at all, there also the Patent is void, and so is, 3. H. 7. the Prior of Norwich his case, but

there it is expressed in the Patent, that the party had informed the Queen of a thing which is false, and this is not expressed in our case, yet it seems to me that there is no diversitie between that case, and the case in question, for it is plaine that in our case, that the surrender and consideration, are the information of the party which was the motive to induce the Queen to her grant, for the suggestion is grounded upon the surrender, the which surrender is fraudulent and deceptive, and there∣fore the Patent is void. Altonwoods case Cooke Lib. 1.40. The King grants the Mannor of Riton and Condor, where in truth they were two Manners, there neither of them passe, Fitzh. Grants 58. and so here the suggestion is ground∣ed upon the words of the Surrender, which are false and deceptive, and therefore the Patent is void, also it seems that when the Queen grants in consideration, that the Grancee did assume to repair, and it is found that he had not repaired, this not performing of the consideration avoids the Patent, and this is proved by Barwicks case Cook lib. 5. if the King will make a Patent for a consideration which is for the Kings benefit, (be it Executory, or executed, of Record or not) if it be not true, or duly performed, the Patent is thereby void; And here the Co∣venant or assumption not being performed according to the Queens intention, and the consideration of the Grant will also make void the Patent. And it may be construed as a Proviso in an Indenture, within some Cases, doth amount to a Co∣venant, and condition also, as it was in the case of Simpson and Titterell, and also in the case of the Earl of Pembrook vouched in Cook lib. 2. in the Lord Cromwels case, and therefore I conceive that the words super se Assumpsit aedi∣ficare is parcell of the consideration, aswell as if it had been pro eo quod aedifica∣bit; and so avoids the Patent by the not performance thereof: Altham Second Baron, saies, it seems to me that the Iudgement ought to be given for the Plan∣there are three things considerable in the Case: First, whether the Lease made to Hitchmore were ever good or not, in respect of a false suggestion; Secondly, whether in that the consideration, that he did assume upon himself to repair, and the Queen indeed never had any precedent information made of the want thereof, do avoid the Patent in the foundation; Thirdly, admit it be good in the foundati∣on, whether the Lease become void afterwards for not repasting; And first I will speak to such things which in my opinion will not avoid the Patent; First it seems, that this want of not assuring, doth not vitiate the Patent, for the word Assumpsit supposeth matter of Fact executed, and whether it be true or false, it cannot be now examined, no more then in the Cases put 21. Ed. 4. and 26 H. 8. In consideration of service done, although there was no service done, yet that shall not avoid the Patent; Sir Hugh Cholmlies case, Cook lib. 2. Recitall of a matter in Pais, and not of Record, which is not materiall, nor valuable, doth not vitiate the Patent, 37. H. 6.27. The King in his Privie Seale suggests a mat∣ter in Fact, this doth not destroy the Patent, also although that the consideration is aswell for that he assumed to repair, as, &c. and it is found that he hath not re∣paired, yet this fault shall not avoid the Patent, for as it seems here it is not in nature of a conditionall estate, or Grant, as if it had been in consideration he shall repaire, for as the words are here placed, it is intended that the Queen will re∣lie upon the Assumpsit, and not upon the condition, and grant, and it seems that the Patent is void, only upon the misrecitall, and the false suggestion, which is the first Point, for it appears by the misrecitall, that the Queen was deceived in a thing materiall, and valuable, and therefore the Patent void, and yet I agree, that every false ricitall or suggestion doth not avoid a Patent, as in 9. Ed. 4. Baggots Ass. 29. Ed. 3.7. if the King recite in his Patent, that he had made a precedent Grant upon a Petition, yet this falsity doth not avoid the Patent, and in 27. Ed. 4. although that this falsity, be in point of consideration, yet if it be not for matter of profit, and valuable to the King, it doth not avoid the Patent, but if it appear, that the Kings intention was grounded upon a matter of value, and substance, and that he was therein deceived, the Patent is for that cause void, as in 9. H. 6. fo. 2.8. H. 7. fo. 3.21. Ed. 4.9. H. 7. fo. 2. and 11. H. 4. fo. 1. and

this is all one as if it should appear in the Recitall or consideration, that the Kings intention was grounded upon a matter of value, and the King therein deceived: therefore in Altonwoods case Cooke lib. 1. If the King recite that A. is indebted unto him, as Executor of B and he release to him all demands generally, yet no∣thing shall be released, but that which he owed as Executor, and so if the King recite, that whereas an Advowson is holden of I. S. and he gives Licence to ap∣propriate, if the Advowson be holden of the King, this is void, 19. E. 3. Fitzh. Grants 58. It seems cleerly that if it appear by the Patent expresly, that the in∣tent of the King was deceived, and abused, the Patent shall be void, although it be not in matter of recitall, or in matter of consideration neither, as in 9. Ed. 4. fo. 6. and 8. by Neale 21. Ass. pla. 15.40. Ass. pla. 36. The King gives Li∣cence to his Tenant to aften in Fee, and afterwards it appears that this Tenant was but Tenant in Lail, and so in the case of the Market or Fair of Torrington cited in Altonwoods case, and in our Case the Queen is deceived, and misinformed in two Circumstances materiall, and of value. First, for that she conceived that a greater quantity of the thing demised to Potter is sur∣rendred then in truth there was, and therein she is deceived, for part of the thing is not come to her hands by the surrender. Secondly the Queens intent was to make an intire Lease of all in possession, and this cannot be, for part of the thing it enures but as a Lease in reversion, or future interest, and therefore void, as it is in Altonwoods case Cook Lib. 1. and the Queen hath a double prejudice hereby.

• First, because she cannot distrain for her rent reserved, in that part which is not surrendred.
• Secondly, she cannot enter therein for the condition broken, wherefore, &c. Tanfield accordingly, that judgement should be given for the Plaintiff: The Patent recites, That all the Term-which Potter had surren∣dred, &c. where in truth it was not so, and therefore it is cleere that the Queen is deceived therein, and the Grant void, for it was the very inducement which procured the new Patent, and this recital is grounded upon the words of the deed of surrender, so y^• the surren. is grounded upon y^e information of Hitchmore contained the surrender.

And if in that Clause Hitchmore had been well advised, the Lease to him ought to have been, A. having of the Mills in possession, and A. having the Messuage and Garden after the Term (which Wilkinson had) should be ex∣pired, and the reservation of the Rent ought to have been expressed accordingly, for as it is shuffled together, the condition cannot avoid the surrender, nor the rent cannot issue out thereof: Therefore it was adjudged in 9. Eliz. in the Common-Bench in the Bishop of Salisburies case. B. seised of two Acres, one whereof was in Lease to A. for years, B. makes a Lease of both to a Stranger, to have y^• one in possession, the other in reversion rendring 20. s. rent entirely: now this rent shall issue out of that in possession, during the Term in A. and after it shall issue out of the whole as one intire rent, and so it is in our Case, for default of severall reservations, for this is one int••erent, and then the Queen cannot distrain upon all the Land, as she intended, so in our Case, wherefore I adjudge the Patent void, not upon the point of recitall that is not for the not recitall of a Subjects Lease, viz. the Lease of one Wilkinson, but it is for the cause of misinforming the Queen in the matter of value, and by consequence as hath been said, Nemo tenetur informare qui nescit, sed quisquis scire quod infor∣mat; And where Snig hath said, that this Patent is made Ex certa scientià & mero motu. And for this, it cannot be intended that the Queen was gull'd upon the information of the party, I say that there are not any words in the Grant to prove that it was Ex mero mortu, &c. And for that it seems Snig had no true Copy of the Case, yet if these words were in the Patent, it is not void for a triviall and petry mistaking, yet in matter substantiall it will not help it, as if the King be misinformed of his estate, in such a thing to be granted, or of estates which are in Lease, for these are matertall things, 21. Ed. 4. by Huffey and Briant, if the King recite that whereas I have given my Land of 100. l. value to him, or whereas I have given to him the Mannor of D. and he grants to me the Mannor of S. if

this recitall be false, the Patent is void, although it hath these words Ex certa sci∣entia, et mero motu, and so is 18. Eliz. Dyer 352. where the Patent was ex certa scientia, et mero motu, &c. but there Dyer held, that this falsitie in the matter of Recital did avoid the Patent, notwithstanding the words ex mero motu &c. but he held it otherwise, if it were in a consideration which is faise, for at that time, the point of falsitie in matter of consideration for 100 l. to be paid, although it be much contraverted in our Books, and it seems in what place soever of the patent it appears, that the King is mis-informed & deceived in any matter ma∣terial or concerning his own estate in the thing to be granted, that that will dictate the Patent, and therefore 17. Eliz. the Queen seised of the Mannor of D. grants all her purpartie of the Mannor of D. if in this case, a Common person had gran∣ted by such words, the Mannor had passed, but in the Queens case it will be a void grant, because a thing which she intended to pass, cannot pass in such plight as she conceived it, viz. as a purpartie, and 36. Eliz. the Queen granted all her portion of Tithes &c. although she had a Parsonage there, yet it doth not p••••s, for this manner of Appellation implies, that the Queen was mis-informed, and not well instructed of the thing to be granted, and therefore void; see Cook lib. 4. in Bozuns case, Ex certa scientia et mero motu &c. doth not help it, also if the King recite, that whereas he had such land by the attainder of I. S. where in truth he had it not by his attainder; now although that he grants this land Ex cer∣ta scientia, et mero motu, yet this will not pass, but if the King be not deceived in the point of intitling himself, but in the deducing of his title, that will not prejudice the Patent, as if the King recite, that whereas I. S. had land by de∣scent from his father, and he grants it to the King, and the King doth re-grant the same to I. S. this grant is good, notwithstanding that I. S. had it not by descent from his father, see the Lord Lovels case in Plowden; that if the King be de∣ceived only in the point of mis-conveyance, the Law will not avoid the Patent, as if be grant to one and his heirs born at D. the last words are void, and the grant is good; Pasch. 42. Eliz. it was agreed, that if the King be Tenant for life or years, and makes a lease for one and twenty years, this lease is void to all intents against the King, because it appears not in the grant, what estate the King had, and by that lease the King conceived, that he had power by his estate to make an absolute lease, whereas legally his lease ought to determine by his death, so by implication it is manifest, that the King was not well instructed of his estate, 39. Eliz. the Queen leased for twenty one years, to begin whensoe∣ver the land should fall in possession by the expiration of any former lease, then in being, if in that case there were no precedent lease then in being, this lease will be void, for these words implie, that the Queen conceived her former lease to be in being, and so impliedly she is deceived in her intent, in like manner in the principal case the Queen was deceived in her intention, for the recital is, that all the estate which Potter had, is come to the Queen by surrender, and in truth all the estate is not come unto her, in respect of a mean estate to Wilkinson; &c. as to the second point, it seems the consideration being, that he did assume to new build, implies asmuch as if he had said, he faithfully promised, and then it is all one as if it had been, for that that he shall build, for it is a consideration executory, and is of value, and then the not performance thereof vitiates the Patent, and the estate was, as if it had been by a limitation to cease, and these words, that he did assume upon himself, cannot be construed to any other intent, but unto an executory consideration, because the King hath no remedy by way of Action, for the breach of this promise, and it cannot be conceived, that the Covenant is satis∣fied in giving securitie, for it is observable, that the Covenant is but the ordinary Covenant, viz. to repair, and keep repaired, and so a Trivial reparation will satisfie that, but it appears that the Queens intent was not to make the lease for such a petty consideration, because the Lessee had undertaken at his own charges to new build the Mills, but the express Covenant doth not binde him to the new building of them, and in 6. Eliz. the like lease was made of the Mannor of Lidles∣court

to Customer Smith, and the lease was for that, that he assumed, that he at his costs would &c. and he avoided his lease upon a former lease made to A. of the premises, and in truth the lease formerly made to A. was meerly void upon the making of this lease, though perad venture the condition may be good, and the consideration performed, but the Queen was not well instructed of her title; al∣so in this case, the lease to Hitchmore is not determined by a condition, as it hath been objected, but it ceaseth and is determined by a limitation, and this may well enough revest in the Queen, without entrie or office, because it was but a Term, and such words purporting an executory consideration in the Queens case implies as much, as if in case of a Common person it had been said expresly to cease upon an act not performed, for in the Kings case the Law speaketh, and if so, then the lease for years is void, and the Patentee may enter without office, and all considerations executory in leases made by the King amount to a conditi∣onal limitation, and then he who will have benefit by such a lease ought to aver the performance of the consideration, as if a man declare upon a lease made unto him, &c. if I. S. should so long live, he ought to aver his life in the Declaration, because it determines, by limitation at his death, but otherwise it is upon a con∣dition, if a Parson make a lease for years, the Lessee must aver the life of the Parson, because by his death the lease ends by a limitation implied, but other∣wise it should if it were upon condition, for the performance of that needs not be averred; but that ought to be shewed on the other part, and so it seemeth, that as wel for the point of falsitie in the recital, as also in the not performing of the consideration, that the lease is void, and the Plantiffe should have judgement which was entred accordingly. Snig, Baron, was of opmion against all the o∣ther Barons, and he held that judgement ought to be given for the Defendant, for he laid, that the Patent made to Hitchmore proveth that it was not made by reason of any suggestion of the partie, for it is expressed to be made ex mero mo∣tu, &c. and then the not surrendring of the other Term doth not vitiate, also if the lease be forfeited to the Queen for not repairing, then the Queen should have a title before the lease made to the contractors, under which the Plaintiffe claims, and that not being found by office, the contractors shall have no benefit thereof, and as to the cases 9. H. 6. and Torringtons case cited Cook lib. 1. Altonwoods case, the words of the Patent which express, that the Patent should be good, so that it be not ad nocumentum &c. which is not in our case, doth not prove the case in question; also if the consideration be smal, and recited as executed, it doth vitiate the Patent although it be false, and it is said in Sir Thomas Wrothes case in Plowden, that it is not honourable for the King to construe his Patent to be void, by colour of deceipt upon an inference, except it be upon a manifest de∣ceipt, and in Barwicks case Cook lib. 5. the consideration was a surrender of all the estate, and therefore it differed from the case in 18. Eliz. Dyer, because there it was in consideration of an estate, which in truth was never in being, and the cases whereupon he relied for the proofe of this matter is the principal case of Al∣tonwoods, and the Lord-Chandos case: that if a violent intendment might be admitted in the Kings grants upon an inference, it might be here inferred, that the King should have the estate by this particular surrender, but the Book is resolved, that no such inference shall be admitted to avoid the Kings patent, or otherwise, but in that case of the Lord Chandos it appeared, that the information of the partie was true, and so it was not here, because it was informed, that all the right which Potter had, is devolved to Hitchmore, which is not so, and there∣fore a difference between those two cases.

Nota, that the course of this Court is, that if A. be indebted, or be an accomptant to the King, and A. hath another debtor, which debtor hath a third

person indebted unto him, in such case A. may by English Billin the Exchequer pray, that the estate of the debtor of his debtor,* 1.3 may be extended for the debt of the said A. and it shall be granted.

Clerk against Rutland.

IN 6. Jac. in Ejectione firme, between Clerk and Rutland it appeared, that a feme sole possessed of a Term of years, assigns this to A. in trust, and after entermarries with him in reversion, and after the husband being in quiet posses∣sion, he and his wife joyn in a Bargaine and sale to B. upon valueable considera∣tion, and after the wife dies, and the assignee doth set on foot the lease, and if this shall be void against the Bargainee was the question upon evidence, and it seemeth not, because the Bargainee claimeth nothing by conveyance from the wife, and also this trust in the Term doth not belong to the husband after the death of the wife; for Tanfield said, that it was decreed in the Chancery, and the opinion of the Iudges was in one Denies case, if a feme sole assign a lease in trust, and after taketh husband, and dieth, that the administrator of the wife should have this trust, and that the Administration shall be granted for this Term, although there be no other thing for which the Administration ought to be granted: also it was touched in this case, that if the father make a lease for fortie years to a stranger, and continue in possession, and after conveys the land to a younger son, who for a valuable consideration conveyeth it over, it was doubted, if the purcha∣sor should avoid this lease or not, but it was said, that if in that case, the father after the making of such a lease, had suffered the land to descend to his eldest son, who had been privie to this trust, that then the Purchasor of the eldest son should avoid this lease, as it was ruled in Burwels case Cook lib. 6.

Upon a motion made by Prideaux, that Robert winter one of the Powder Traitors made a lease for years 1. Jac. to one Gower, and that after 3. Jac. the Lessor was attainted of Treason by Parliament, which attainder related to a time before the conveyance of the Fee, and if in this case the Term be saved or lost it was the question.

Pasch. 9 Jac. in the Exche∣quer.

Wickham against Wood Pasch. 9. Jac. in the Exchequer.

EDward Wickham declared in an Ejectione firme, that Skreen 17. April 6. Jac. at Framlingham in Suffolk demised to him 30. Acres of pasture, to have for three years &c. and upon the general issue pleaded the Iury found, that Tho∣mas Cooper, and three others were seised of the lands in question, and the fifth of February 24. H. 8. infeoffed by Indenture M. B. and five others, to the uses and intents mentioned in a Schedul annexed, and that was upon condition, that if they aliened to any other uses or purposes, that the Feoffor should re-enter, and the Iury also found the Schedule, which in effect was this, viz. that the Feoffees and their heirs, should take the profits, and therewith finde an honest priest, by them or the greater number of them to be hired, and competently paid to say Mass for the soules of the Feoffor and his friends, and that by the space of 99. years then ensuing, and at the end of the said years, the Feoffees their heirs and assigns, who then should be seised, should sell the lands, and with the money finde a Priest, to Chaunt for the soules aforesaid, and with the said moneys or lands also, to

make further provision for a competent poor honest Priest for the timr being, (if then it could be) by a Amortization, or otherwise as they should think best, for the sure and long continuance of the said honest Priest, if so it could be continu∣ed by order of Law, the Iury found all things executed accordingly, and the find∣ing of a Priest from the 24th. of H. 8. untill the first of Ed. 6. by which Act the King was entituled prout lex postulat, and that Queen Eliz. granted to Mildmay for 21. years, upon whom Fuller, the heir of the surviving Feoffee entred, and made a Feofment to Wilbey and Skreen, by force whereof they were seised, and Mildmay re-entred, and his Term expiring, he obtained a new lease 43. Eliz. and made a lease to Wood, and Skreen survived Wilbey, and made a lease to Wick∣ham, who entred, and being outed by Wood brought this Action. Bromley puisne Baron, upon all the matter I observe three things.

• First, if the Fee-simple in this case by the letter or meaning of the Statute be given to the Crown, for the lease of 99. years is agreed to be given.
• Secondly, if there be such an imployment of this land as the Statute requireth, admitting the lease was not given.
• Thirdly, if the livery upon the Queens Lessee for years be good: and I hold that the Fee is not given to the Queen.

Secondly, the land is not imploy∣ed, &c. admitting that it was given. Thirdly, that the Feofment here is not good; and as to the case at Bar the Feoffees may enter: I doubt not of that be∣cause there is not any thing found, but that it was imployed to the uses intended for 99. years. Secondly, if it were not imployed according to the condition, after 1. Ed. 6. yet they cannot enter, for themselves were parties to the Art which did prohibit it, as 34. H. 8. Dyer 52. the Queen gives licence, that Belmelt shall be transported notwithstanding any Statute made, or to be made, if after it be prohibited, the licence is determined, because the Patentee himself was a partie to such Statutes. Secondly, it is said in Addams and Lamberts case, that a superstitious devise or other estate upon condition is within the Statute, because the Patentee was partie thereunto. Thirdly, it is said in the said case, that a superstitious devise or other estate upon condition is within the Statute, because it is penal, and compulsorie for the maintenance of a thing prohibited by the Law, and also there it is said, that there is a proviso towards the end of that Act, that it shall not be Lawful by reason of any remainder or condition for any man to claim any lands, &c. for the not doing, or finding of any such Priest: as to the other point which was moved at Bar, I hold that the use doth not arise upon the words subsequent, and if they do not re-enter, that then the land shall go to the use of the four Feoffees, to the intent aforesaid, is not a mis-ordering nor an imployment. Secondly, these words to the intent, do not raise any use, but on∣ly a confidence and trust reposed in the Feoffees. Doctor and Student 94. for the first point therefore he held, that there is no superstitious gift of the Fee-simple, and if there were, it is not imployed &c. and therefore it is not given by the Statute of 1. Ed. 6. to the Queen: and touching that we are to consider the Statute, Indenture, and the Schedule, and there is not a word, that after 99. years the land shall finde a Priest, but the money, and the land is not given, but the money, as in the Dean of Pauls case 22. Eliz. Dyer 368. if land be given to finde a Priest with part of the profits thereof, those profits are only given to the King by this Statute, and not the land, but that belongs to the Dean and Chap∣ter: also the Schedule is, if then it may be lawful, and therefore if it were not then lawful, the money is not given, and it is like to the case, where I make a lease for 21. years, if I do allow of it before Michaelmas, and before Michael∣mas do not allow of it, this is a void lease, and so if I give land to the use of West∣minster School, if the Dean will enter into a Recognizance, &c. and if he will not enter into a Recognizance, it is no gift, like to the case 15, H. 7. a grant of Annuitie if such a thing be done, &c. secondly, as to the imployment, the lease is only found to be imployed, and the imployment of the lease is no imployment of the Fee, which was not given until the Term was expired, and if the gift be not supersti∣tious

the imployment ought not to be superstitious; and yet as it is said in Adams case, there ought to be an imployment to intitle the Queen, as the case there is, if one gives the Mannor of D. and S. to superstitious uses, the Queen shall have the lands out of the hands of the Feoffee, and if land be given to finde a Priest in the Church of D. for 20 years, and after to finde one in S. for 21. years, and before the expiration of the first Term, the Statute is made, it seems the Queen shall have only the first Term, because there is no imployment of the second Term within the Statute, 5. Ed. 4.20.15. Ed. 3. Execu. 63. I agree those cases, for land or rent issue from a seisin 30. Ed. 3.12. in a quare impedit 5. Ed. 6. Benlowes, a devise to 8. to the uses and intent, that the Feoffees with the profits shall finde a Priest, whilst the Law of this Realm will suffer it, and if the Law will not suffer it, then to the use of three of the poorest of the Parishes adjoyning, by all the Iudges this is not within the Statute; and as to the last point it seems, that the Feofment is good, and the interest of the Queen is no impediment, which if it be not then there is no question, as Dyer 20. Eliz. 363. Tenant in tail makes a feofment, the servants of the Lessee for years being upon the land and livery is made, and after the Lessee for years agrees saving his Term, this is a dis∣continuance 14. Ed. 4.2, 3. and 4. Ph. et M. Dyer 139. possession shall not be gained from the Queen, but by matter of Record 4. Assises 5.21. Assises 2.8. H. 4.16.1. H. 7. no livery upon the Kings possession, it may be devised by the heir, or conveyed by bargain and sale, or by fine from him; and the Kings estate in reversion doth not priviledge the estate in possession, as it is 23. Ed. 3.7. a disseisor conveys land to the Queen who grants for life, and the disseisee shall have a writ of entrie against the Queens Lessee for life, by the opinion of Thorp, Cook lib. 4.55. a disseisor makes a lease for life, the remainder to the King, a recovery of the land against Tenant for life will defeat the Kings remainder, 7. Rich. 2. aide of the King 61. Tenant in tail grants the land to the King with warranty, and the King makes a lease for life, if the issue recover in a Formedon the Kings estate is defeated; and I was of Councel in the Court of wards, in a case which was Pasch. 43. Eliz. betwixt Chackston and Starkey, for the Ward∣ship of the heir of Clifford, and it was this, the Ward at full age tendred his live∣ry, and had six moneths to sue it, and within the six moneths made a Feofment, and after died before livery sued, in this case the livery and seisin was void, and it is all one as if no tender had been made, for the Queens possession was privi∣ledged; the second point was, that one being in Ward to the King, had a rever∣sion in Fee expectant upon an estate for life, and before livery sued made a Feof∣ment in Fee, this makes a discontinuance of the reversion, notwithstanding the Kings interest, which he had in reversion for the Wardship, which case is like to the case above mentioned of a lease for years, and also it was there said, that if Tenant for life be, the remainder to the King for years, the remainder to another in Fee, and the Tenant for life makes a Feofment in Fee, this drawes the Kings remainder out of him, and so he held, that here is no gift. Secondly, that here is no imployment, and so the Feofment is made good. Altham second Baron contra, I will consider only two points. First, if it be a gift for years or for ever, and I say, that it is a gift for ever, for here is no intent in the Donor to determine the superstitious use, because he doth not limit any other use to which it should revert, but only that the Priest should be maintained for ever, and as that which hath been said, that it was not imployed, he answereth that out of the Book of 22. Assises 52. where 12. d. is reserved for three years, and after 100. s. seisin of 12. d. is seisin of the 100. s. because it is issuing out of the freehold, as the case is in Littleton in the Chapter of Atturnement, Tenant for life, the remainder in Fee, the Lord shall not avow upon the remainder, but shall have it by way of Escheat, for all the estates together are holden of the Lord, but if land be given to finde a Priest in D. and one is maintained in S. this is a mis-im∣ployment; but in our case I conceive, that the Feoffees have power to dispose the

land, as to them seems best, and therefore it is uncertain, and then given to the King as it was in Dales case, land was given to the intent, that a Priest should be maintained as I. S. and I. D. thought fit, so that he had not less then 8. marks yearly, the King shall have all, for the Feoffees may give all to the Priest if they please, and in Turners case, land was devised to a Priest, and divers poor men, all is given to the King by the superstitious imployment, and as to the words, (if by the Law it may be) they are idle, for id possumus quod de Jure possu∣mus, and therefore 9. Ed. 6. an office was given to one if he were able to exercise it, these words are idle, for the Law saith, that he shall not have it, if he be not able to execute it, 30. Ed. 3.8. a gift to two and to the longer liver of them, that the Survivor shall have it, are idle words, 10. H. 7. a Condition that &c. and here it the condition had been until an Act of Parliament prohibit it, they are Idle words, for if land be given to I. S. and his heirs, upon condition, that if he die without heirs &c. this is a void condition and Repugnant to Law. Lastly, I hold the feofment good by way of Admittance, and that the livery takes effect, notwithstanding the Queens interest 4. H. 6.19. the Kings Tenant for life is dis∣seised, he shall have an Assise, and yet there is no intrusion upon the King 17. H. 7.6. the Kings Lessee makes a feofment, the King enters, and so he held, that the judgement should he given for the Defendant. Snig Baron argued much to the same intent, that Bromley had done, and that the Schedule is so cir∣cumspect, that nothing is given after the 99. years, and that a spirit of Divinati∣on forwarned him of the alteration, and he agreed the Feofment to be good with this difference, where the King is in possession actually, and where the Reversion is in the King, and the book of 2 H. 4.9. that none shall enter upon the Kings Farmor is to be understood of the Kings under Tenants, and not of his Lessees. Tanfield chief Baron said, that neither by the intent of the Statute, nor of the parties, the fee is given to the Queen, but it is apparant, that during the 99. years, the parties intent is in suspence for fear of alteration, and that they would see the difference of the times, and leave the disposing thereof to his Feoffees, and if they had sold the land, and with the money maintained a Priest, as many stocks of money have used to do, without doubt it had been forfeited to the King, and not the land; and it would be in vain to speak of an Amortization, if it be for a stipendary Priest only, for this would not be necessary to have a foundation in∣corporated, and to make an Amortization for such a Priest, and therefore it seems to him, that there is no determination of his will after the 99. years, but that all is left to the determination and disposition of the feoffees who then should be, and after the intent of the Statute, which was penned by Hales Iustice of the Com∣mon Pleas. I observe four words, given, appointed, limited, and assigned, and I do not conceive, that our case is within the compass of any of them, for as I said before, it is in suspence until the end of 99. years, and the parties who should have the interest are not known untill the time come, nor the estate setled until that time, but if it had been conveyed to superstitious uses after, it had been gi∣ven to the Queen, notwithstanding the conveyance had not been sufficient, if he who did convey had power in respect of the abilitie of his person, and the estate in him, and therefore Pasch. 22. Eliz. the case was this, Sir William Say, be∣fore the Statute of 32. H. 8. of Wills was seised of lands in fee not devisable, and before the said Statute he devised it to finde a Priest, and notwithstanding that the devise was not good, yet it was adjudged, that the land was given to the Queen by 1. Ed. 6. but if it were a feme covert, or an infant, who are disabled in Law, or a Tenant in tail, who is disabled in respect of his estate, there it had not been given to the Queeen, but in all cases there ought to be an assignment, or otherwise nothing is given; and there is a difference where one grants land to the intent with the profits thereof to finde a Priest, there all the land is given to the Queen, and where he grants a rent for the maintenance of a Priest, for there the King shall have but the Rent;

and he said, that the Case cited, 5. Ed. 6. Benlos, is good Law, and as to that which hath been said: That because the power of the Feoffees is uncertain, it should be given to the Queen, true it is where the power is uncertain to bestow the profits, but if their power be certain, it is otherwise, and as to the imployment there is none, because there is no gift, but the imployment of the particular estate is an imployment of the Remainder, and a small thing will make an im∣ployment. James case was of the Greyhound in Fleetstreet which was given to finde a Priest, and the White Horse for the maintenance of another, and the Feof∣fees of the White-horse, maintained the Priest of the Greyhound; and è conver∣sò, and this was ruled to be an imployment, for it was whereby, or wherewith a Priest was maintained, although it was not whereof, and Mich. 21. Eliz. the Kings head in Breadstreet, now Fishstreet was given to finde a Priest, and a rent-charge granted in performance of the Will, and this was adjudged an imployment of the house, and so where the assignment is good, a small thing will make an imployment. And it seems that the Liverie is good, and as to that, that no Li∣very can be made without ousting of the Lessor, and by his consent, and therefore 9. Eliz. It is ruled, that a Feoffement with a Letter of Atturney to the Lessee to make livery is good, and no surrender, and Eides and Knotsfords case, 41. Eliz. Lessee for years, remainder for life, remainder in fee, he in remainder in fee makes a Feoffement to the Lessee for years, and makes Livery, and it was adjudged a good Feoffement, because it was not a surrender, in respect of the meane estate for life, and no ouster nor consent will serve, for then it would be a disseisin, which cannot be upon the possession of the Lessee for years, for his possession is also of him in the remainder for life, and I put these Cases, that there ought to be a consent or ouster, but I agree that the Queens possession cannot be defeated by entry or ouster, as it is 4. Mar. Dyer 139.8. Ass. 21.18. H. 8.16. But the Kings Ward may make an estate, 1. H. 7. But if the King be not in possession, but a remainder only in him, and the Lessor makes a Feoffement, rendring 12. d. rent, this estate in the King doth not priviledge any other in posses∣sion, and so judgement was given for the Plaintiff against the opinion of Altham.

Mrs Chamberlains case.

IN 22. Eliz. York recovered by Indicement in the Kings Bench against Allen upon an Assumpsit, York being thus interessed of the debt, after that is in May, 26. Eliz. was outlawed upon a mean Proces at the suit of I. S. and in the same year and moneth was outlawed after judgement at the suit of the same I. S. and after a generall pardon came 27. Eliz. in which pardon, after the pardon of all contempts for outlawrie, there are words also purporting a Grant, bounty, and liberality, whereby the Queen granted all montes forfeited, or come unto her hands, by reason of any such outlawry, with other words in the same pardon, and Provisoes therein contained, necessary to be observed: And after in 28. El. York was outlawed again after judgement at the suit of I. S. and then Yorke died, but he lived a full year after the pardon, 27. Eliz. and did not sue any Scire facias against the party, at whose suit he was outlawed after Iudgement; and af∣ter the death of Yorke another pardon came, 29. Eliz. to the same effect with the pardon in 27. And after the Queen grants this debt to Anger for the benefit of Mrs Chamberlain, who was the Wife of Yorke, and Anger sued in the Queens name to have an extent, out of this Court against Allen, who was the party against whom Iudgement was given, and all this was drawn into a Case, and deliver∣ed to the Barons of the Exchequer to consider upon, viz. If execution may be sued in the Queens name against Allen, and this case was argued at the Barre at which I was present; And now it was argued at the Bench by Bromley Puisne Baron, and concluded that Anger may well sue execution in the Queens name,

but he had almost made an end of his Argument before I came into the Court, and three points seemed to be considered of in the Case. The 1. was unanimously resolved, and agreed by all the Barons, that either of the pardons will advantage Allen, who was debtor to the party outlawed, for although that the words of the pardon, unport a pardon of all debts and sums of money accrued to the Queen by reason of the outlawry, yet comparing all the parts of the pardons together, it will plainly appear, that the intent of the pardon was only for the advantage of him, who had committed the forfeiture by the contempt, and extends only to him by way of restitution; And another construction would be repugnant to all the Causes contained in the Act; By Tanfield, as a Will ought to receive constructi∣on by due consideration of the intention of the Testator collected out of all the parts thereof, so the meaning of an Act of Parliament ought to be expounded by an examination of the intention of the makers thereof, collected out of all the cau∣ses thes therein, so that there be no repugnancy, but a concordancy in all the parts thereof, and therefore if a man by will devise Bacre to A. and his heirs, and by another cause in the same Will he devises B acre to B. and his assignes, it shall not be void in any part, insomuch that if both had been placed together, A. and B. should be Ioyntenants, and therefore the Law will make such a construction, and so if a man devise B. acre to A. and after he devises a Rent out of it to another, both shall stand: Brett and Rigdens case, Plowden, Also this Debt was due by Allen; 2. It was resolved by Tanfield and Bromley, that Yorke should take no advantage by the Pardon in 27. Eliz. to have his goods restored, which were forfeited by the outlawry after judgement, for by them all the Statute for the pardon of the outlawry after judgement was penued in such a form, as it is but conditionall, for it is in effect provided, that the pardon shall not extend to the party outlawed after judgement untill he shall pay or agree with the party, at whose suit he was outlawed, and this payment ought to be in the Court, or in such manner that the Court may be satisfied by the suing of a Scire facias, and an acknowledgement of the party at whose suit, &c. for a bare payment in the Country is not sufficient; But when the party outlawed hath once lawfully sa∣tisfied the party, at whose suit he was outlawed, then the pardon will relate ab initio to avoid all intervenient matters, if the satisfaction be made in convenient time, and therefore if the King had granted the goods forfeited by outlawry after judgment meane between the pardon, and the suing of the Scire facias, yet if the party outlawed sue this Scire facias within convenient time, the pardon shall have such relation as it shall defeat the grant of the goods, and therefore Tanfield compared the words in the pardon of the outlawry after judgement to the words in the Statute of 27. H. 8. of intolments, for there it is provided, that nothing shall passe by bargaine and Sale, except the Deed be inrolled within six moneths after, but if it be not inrolled, otherwise it is.

Beckets case.

R. B. seised of Lands in fee, 36. Eliz. levies a fine, &c. and declares the use to be to himself for life, and after to T. B. with power of revocation, and to limit new uses, and if he revoke and not declare, then the use shall be to the use of himself for life, and after to Henry Becket with power in that indenture, also to revoke and limit new uses, and that then the fine shall be to such new uses and no other, and after 42. Eliz. by a third Indenture he revoked the second Inden∣ture, and declared the use of the fine to be to the use of himself for life, and af∣ter to Hen. Becket in taile, the remainder to I. B. &c. R. B. dies, and T. B. his brother, and heire is found a Recusant, and the lands seised, and thereupon comes H. B. and shews the matter as above, and upon that the Kings Atturney demur∣reth:

Bromley and Altham Barons, that the Declaration of the uses made by the third Indenture was good, and he having power by the first to declare new uses, may declare them with power of Revocation, for it is not meerly a power, but conjoyned with an interest, and therefore may be executed with a power of Revocation, and then when he by the third Indenture revokes the former uses, now it is as if new uses had been declared, and then he may declare uses at any time after the Fine, as it appears by 4. Mar. Dyer 136. and Coke lib. 9. Down∣hams case, and in this case they did rely upon Diggs case Cooke lib. 1. where it is said, that upon such a Power, he can revoke but once, for that part, unlesse he had a new power of Revocation of Vses newly to be limited, whereby it is im∣plyed, that if he had a new power to appoint new uses, he may revoke them also. Snig Baron to the contrary, and said, that he had not power to declare 3. severall uses, by the first contract, which ought to Authorise all the Declarations upon that Fine, and then the Revocation by the third Indenture is good, and the limitation void, and then it shall be to the use of R. B. and his heirs, and so by the death of R. B. it doth descend to T. B. the Recusant, and also he said, that such an In∣denture, to declare uses upon uses, was never made, and it would be mischievous to declare infinite uses upon uses. Tanfield held, that the uses in the second In∣denture stand unrevoked, and the new uses in the third Indenture are void, and then H. B. ought to have the Land again out of the Kings hands. The power in the second Indenture is, that he may revoke and limit new uses, and that the Fine shall be to those new uses, and no others: and then if there be a Revocation, and no punctuall limitation, he had not pursued his Authority, for he ought to revoke and limit, and he cannot doe the one without the other: Also he said, that after such Revocation and limitation, the fine shall be to such new uses and no other, then if there be no new uses well limited in the third Indenture, the former uses shall stand void.

Nota, it seemeth that if a man make a Feoffement and declare uses, and reserve a power to revoke them, without saying moe, he cannot revoke them, and limit new, for the use of the Fine being once declared by the Indenture, no other use can be averred or declared which is not warranted thereby, for he cannot declare the fine to be to new uses, when it was once declared before, Cook lib. 2.76. That no other use can be averred, then that in the conveyauce, Cooke lib. 9, 10, 11. Although that the first uses are determined, as if a man declare the use of a Fine, to be to one and his Heires upon condition, that he shall pay 40. l. &c. or untill he do such an Act, if the first use be determined, the Fine cannot be other∣wise declared to be to new uses; And therefore it seemes that all the uses which shall rise out of the Fine, ought to spring from the first Indenture, which testifieth the certain intention of the parties in the leaving thereof, and then in the Case above, the second Indenture and the limitation of new uses thereby, are well war∣ranted by the first Indenture, and in respect that this is not a naked power only, I conceive that they may be upon condition, or upon a power of Revocation to de∣termine them; But the power to limit the third uses by a third indenture after re∣vocation of the second uses in the second indenture, hath not any Warrant from the first Indenture, and without such Warrant, there can be no Declaration of such new uses, which were not declared or authorised by the first Indenture, which Note, for it seems to be good Law.

FINIS.

Notes

• * 1.1

  Mich. 3. Jac. in the Exche∣quer.
• * 1.2

  2 Rich. 2. Stat. 2. cap. 3. 1. Rich. 3. cap. 1.
• * 1.3

  Pasch. 9. Jac. in the Exche∣quer.