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 aforesaid c. and the word Practizatione comprehends aswel the subsequent Acts of execution as the precedent combination and therefore Tantamounts a general issue and it was good by the Court and as to the action Altham Baron conceived 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 therefore 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 accordingly 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 conspiracy 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 purchase 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 adjourned If a Bishop becomes indebted to the King for a subsidie and dieth his successors 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 Bridgman 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 against 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 pretended 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 judgement and then it is within the Statute also he said that the words in the proviso 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 mispleading Tanfield chief Baron said that the matter in equitie ought to be sufficiently proved and here is nothing but the allegation of the partie and the demurrer 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 Defendant pleads his matter of equitie and the King supposing this not to be equity within 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 Exchequer 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 commission and therefore false lattin shall not abate it as it hath been
the profit and comoditie 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 between 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 Defendant so that if the Defendant be a meer stranger to the Plantiff without question 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 servant 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 compellable 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 woâ—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 anâ— therefore it is no misfeazance as my particular servant but being my general servant he had done another thing then I commanded 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 general action of Trespass lieth but if by reason of his riding my horse die an action 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 upon 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 adjourned 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 Testators Lessor there they may have an Action upon the case if they will or Trespass generally and in
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 Statute 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 notwithstanding 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 seemed to him that although the inrolment be good yet that should not avoid the estate 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 attornament ought to relate but to other purposes it ought not to relate and therefore 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 stranger for his estate lawfully executed and therefore if a feofment be made to a husband 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 Butlers 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 acknowledged to a Common person and another Statute to the King by the same Conusor 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 Walter said that the confirmation is not good in regard it is not of record nor inrolled 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 Secondly 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 Chattel 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 entrie 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
adjudged in the Exchequer 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 capiat 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 Lovies 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 replevy 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 between 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 absque 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 maketh 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 appearing 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 appears 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 priviledged 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 action 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 Common Pleas mentioning her marriage c. and so here the scire facias ought to mention 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 Sheriff 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 uxoris suae amisit or otherwise clearly it lieth not for the husband alone and he resembled 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 Sheriff may safely return she is not to be found and thereupon c. quaere if he intended the writ of scire facias ad audiendum errores or the writ of execution awarded upon the judgement in the Kings Bench for he did not mention any particularity 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 Altham and so
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 continued 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 relinquishing 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 reasons 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 premisses 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 intendment 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 falsified his Writ cleerely he vouched 21. H. 6. fo 8. and 6. Eliz. Dyer 226. in a Ejectione 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 verdict 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 Attorney 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 matter of confession Bromley Puisne Baron it seemeth the plea is not good because 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 demurrer 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 although 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 discontinuance Also it seemeth that the plea is not good and to say that the word Tenementorum 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 necessary 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 alledged 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 verificatione 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 Defendant saith that the intestate had bona notabilia in divers Diocesses and so the Administration void and shewed in what Diocesses the goods were but shewed 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 Plantiffe 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 confession 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 demurrer but if the demurrer were that the plea amounted to the general issue only there ought to be shewed a special cause or otherwise no advantage to be taken 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 conversion 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 recorded and yet no day given as appears Hill 4. H. 8.
was in a Formedon in remainder 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 judgement 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 Tanfield said that he was of Councel in Pettishals case in the time of the Lord Bromley 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 reason 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 Hutton 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 adjudged 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 surrenders 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 otherwise 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 surrender 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 evidence 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 Coppyhold 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 stranger 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 neverthelesse 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 generally ought to be taken strictly yet as it is here he who will take advantage thereof 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
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 agreed 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 whether 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 defective 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 actual 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 surrender or give up his Patent although without deed yet with such circumstances 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 determine 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 amount 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 Tenant 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 matters of circumstance and to prove that the defects in this Case are only in circumstance 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 conveyance and that such a conveyance is aided by this Statute he cited the opinion 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 Statute Thirdly whereas it may be Collected that because it is found in the special 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 appeareth 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 given That modo habens joyned together will signifie a time past though taken â—everally that may signifie so much which makes a plain difference betwixt those instances and this present case Secondly admitting in a Grammatical construction 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 construction 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 Bozuns Case Coo. lib. 4. and then he concluded that in asmuch as the special verdict had definitively found no consideration but generally for the consideration above 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 notwithstanding 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 differences were infinite also upon this ground for some take a difference where a consideration 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 others 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 although it be false yet the grant is good and to prove this diversitie he cited Harris 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 advantage 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 principal 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 consideration 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 surrender of this Antient Term but an extinguishment thereof to which the Lord chief Baron Tanfield agreed and Serjeant Nichols further said that the Consideration 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 Patents and therefore although it be admitted that here was not a sufficient restoring 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 Consideration 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 Secondly 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. Dyer 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 others 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 material 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 Altonwoods 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 Cholmleys 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 released 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 partie 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 surrender 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 information of the partie Secondly that here is not any actual surrender Thirdly 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 Coppiholders 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. aâ—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 pleaded 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 redditionem 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 modo 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 intended an actual surrender precedent to be made by the Patentee yet his estate continues 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 acceptance 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 signification 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
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 special tail to the husband it was demurred Richardson argued that it was a general 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 Exchequer 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 incorporated 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 Plantiff 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 matter 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 Traversable therein videlicet what is the principal matter alledged for the Defendant 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 incorporated 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 matter 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 alledging 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 Plantiff 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 alledged 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 prayer 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
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 burthen 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 particular Impost the case of the 11. and 14. H. 4. of Aulnageor is not to be compared 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 monopoly of Cards it is not like for that is of a commoditie within the land and betwixt 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 forfeited 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 conclusion 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 presidents but for the Bar it is an increase of the Defendants contempt and no sufficient 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 Information 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 Traffick 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 import 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 therein 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 policy 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 conference and the case there was for an impost upon cloath a domestick commoditie in this case are recited their Grievances but it was paid and it is denied 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 custome 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
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 imprisonment of the Plantiffs wife the case was that Leonard Lovies was formerly 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 husband 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 entrie 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 Defendant 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 process 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 evil 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 declared 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 London 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 agreement 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 action moved in arrest of judgement and that for two causes the action lieth not upon 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 appeal 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 Common 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
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 records 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 discharged 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 estreat 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 distraining for this amercement be it lawfully imposed or not yet I. S. shall be restrained 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 whereupon 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 Auditor 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 education was the cause the land should continue to the wife and the cause being determined 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 according 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 favourable construction made to the prejudice of the heir
avoidance and after confirms the lease here the lease is not good in respect 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 acknowledgement 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 confirmation 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 outlawry 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 Commissioners 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 Chancery 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 Recoâ—d and an Action of debt lieth not thereupon and the 34. Eliz. in Brock and Bainhams case in this Court a Recognizance 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 Record 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 adjudged 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 Bishop as in his remitter and when an antient right comes this prevents the relation 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 being 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 Bishops 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 Common 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 bargain 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 inrolment of the lease made to the Queen there is no Lessee and a lease cannot be without 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 inception 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 inrolment 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 inrolment 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
his successor may present anew and seemed to him no question and to this purpose 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 Dyer 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. Goodmans 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 simoniacally 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 ordinary 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 given by the friends of the Presentee and after the King had notice thereof and assent 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 Benefice 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 purpose 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 aâ— Advowson 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 Benefice 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 presented 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 Patron 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 presentation and B. the nomination to a Benefice and the Presentor upon a corrupt agreement makes a presentation unknown to the Nominator here the Nominator shall not be preâ—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 controuled by her marriage for it is a thing which is not to her prejudice and he vouched 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 impedit 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 determined 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 Exchequer 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 Amercement 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 seised 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 Wilkinson 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 Hitchmore 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 decay and to leave them so repaired and the Iury also found that in the same Patent there was a Covenant that Hitchmore should repaire them c. for the doing 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 recitall 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 thereupon 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 Autient 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 party and then in our case the lease is not ex gratia c. and the recitall is the recitall 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 also 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 inheritance 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 falsitie 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 intended 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 determined 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 consideration 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
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. maketh 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 avoiding 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 proclamation 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 indefinite 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 Ejectione 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 Traversed 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 Tenant 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 estate 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 Plowden 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 against this opinion are two viz. 33. H. 8. Dyer fo 51. but there it is not expresly 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 remainder 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 demurrer 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 Henry 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 allowed 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 express 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 Plantiffe 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 agree 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 superfluous 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 Traversed and that it appears in 15. Ed. 4. in some case a Surplusâ—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 avows 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. Dyer 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 prayed 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 Feofment 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 Feofment 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 express 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 Traverse 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 Traversing that he was seised in Fee 2. Ed. 4.11 that a seisin in Fee tail is sufficient to maintain an allegation of a seisin in Fee to the second reason it is not alledged 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 alledgeth 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 Common 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 Traverseth 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 Lessees 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 possession 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 matter 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 responsum see Plowden in Smith and Stapletons case for there it is made a quere and notwithstanding that Tanfield chief Baron with the assâ—nt of the whole Court pronounced that judgement should be entred against the Plantiffe immediately 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. Richardson 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 Common 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 distrain 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 Charter 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 Attorney to make livery and before that be executed the Feoffor himself makes livery 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 possession 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 actual 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 committed Treason and in asmuch as it was made to the use of the son being an Infant 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 inclined 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 asportation 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 upon 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 Defendant 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 without 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
give money to a patron to make a promise 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 money given yet he shall be deprived of the benefice and this difference was certified 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 construction 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 Zouches 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 Simonie 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 other 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 living 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 institution 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 therefore 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 appears 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 judgement 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 presentation 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 Majesties debt due for the Recusancy of John Halsey as Recusant convict deceased with the lands and goods bought in the name of John Grove and Richard Cox Defendant in this Court that John Halsey was indicted and convicted 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 himself 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 Recusant 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
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 Felony 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 proceeding 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 Terminer 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 spedier 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 Common 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 without 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 tâ—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 Statute 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 turned 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 the different forms of judgment for in common actions the judgment is Quod quaerens recuperet c. But in informations the usuall form is Quod defendens foris faciet 41. Ass which implies that it is not perfect untill the Iudgement 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 parties before Iudgement dischargeth aswell the contempt as the penaltie of a penall Law 40. Ed 3. Executor 74. debt lies not against the Executors of a Iaylor who suffers Prisoners to escape 15. Eliz. Dyer 322. in the like Case the opinion 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 neither 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