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A93927 The reading upon the statute of the thirteenth of Elizabeth, chapter VII. touching bankrupts, learnedly and amply expained, by John Stone of Gray's Inn, esquire. Stone, John, d. 1640. 1695 (1695) Wing S5730; ESTC R43936 72,205 137

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not properly upon this Statute for the death of a Bankrupt is not provided for by this Statute but plainly by the Statute of primo Ja. the last Clause and I think that even for the debt of such a Wife it shall be sold after his death and although I put it that a Feoffment is made to him by the Son which cannot work by way of Livery because he was Tenant in tail yet if the Donor will enfeoffe the Donee by Deed this will work to the increasing of his Estate by way of confirmation 7 H. 6. 5. If the Inheritance of the Feme shall be sold She hath power to forfeit it by Attainder or by Cessavit and by this Statute they may sell all the Bankrupts Lands lawfully that is by any lawful course of Conveyance depart with all 6. The Commission shall be in force against her after the death of her Husband for if her Husbands death shall not help his Heir a Fortiori it shall not help her that lives Also as the credit of the one was the credit of the other for who would trust a Woman whose Husband was known to be of no credit so the offence of the one is the offence of the other and the gains of the one the gains of the other 7. But if this Man and Woman be both Aliens then neither of them are within this Statute but another course must be taken with them by the Statute of H. 8. cap. The Woman was born upon the Coasts of Flanders and the Man in the Port of Diep and I hold them both born in the Kings Dominions for him that was born in the Port I mean in a Ship lying at that Port Town there is small question but it is within the Kings Dominions It is said of King H. 2. That he was the greatest King that ever was in England for he had all the Land and Sea under his Dominion from the Orcades to the Pireneian Mountains which sever France and Spain England and Scotland he had by the Norman Conquest they and Normandy were laid together by Hen. 1 Anjou Tourain and Main were the Inheritance of his Father the first Plantagenet Poytiers and Aquitaine he had by his Wife Britainy held of him as of his Dukedom of Britainy so as all the Sea Coast even from Calis to St. Sebastians in Spain was his so that the French King had no way nor passage to the Sea nor Jurisdiction in the Sea It is true that by the Attainder of King John for the murthering of Prince Arthur a great part of all this was seized by the King of France and in the end by R. 2. H. 6. and Queen Mary all the Land was lost but the Sea was never lost witness the Isles of Alderney which stand within three Miles of France and Gersey and Garnsey which the French to this day could never conquer and yet they speak French and indeed are all that is left to the King of England that was any part of the Dakedom of Normandy But the Coasts of Flanders is more doubtful for Flanders was never in the Jurisdiction of the King of England but yet they were never Masters of the Sea The Lord Admirals Jurisdiction that he claims is at this day as well of the German Ocean as in the Straights and we say the Dutchmen do us wrong to Fish in these Seas 8. But admit the Woman is an Alien yet I take it if her Husband be an Englishman they shall be both Bankrupts within the Statute he as I said by the Law and she by Law and Custom for as the Custom will allow her to be a sole Merchant if her Husband he a Citizen altho' she be an Alien so likewise shall her Estate be subject 9. But if he be an Alien yet all will be one for his Goods but his I ands are the Kings for if he will Trade and Traffi●ue by his Wife and her Credit being English and having Land and so have and enjoy the Priviledges and Benefits of a Subject by his Wives legitimation her Land and the Custom of the City there it is no reason but that he should be subject to such Laws as other Subjects are So as if the Wife be an Alien and the Husband a Subject or the Husband an Alien and the Wife a Subject they are clearly in both cases within the Statute for Goods but my Case is for Lands and in my Case I hold them both born within the Kings Dominions 10. But the greatest Question in my Case and a thing never yet put in u●e or questioned is if a Bankrupt is Tenant in tail if by the sale of the Commissioners the issue in tail shall be barred they shall for the words of this Statute and of the Statute of 26 H. 8. are all one The words of 26. are If any parsons shall be attainted of any High Treason by course of the Common Laws they shall forfeit to the Kings Majesty their Lands Tenements and Hereditaments wherein they have any Estate of Inheritance Our Statute is That the Commissioners by Deed enrolled may sell the offenders Lands Tenements and Hereditaments as well Free as Copy c. in neither of these Statutes are intailed Lands mentioned But we see in Walsingham's Case Plowd and in Dowghties Case and in common experience that an Estate tail is forfeited by 26 H. 8.13 But you will say in 26 H. 8. there be words more to carry it than in your Statute for that saith any Estate of Inheritance and an Estate tail is an Estate of Inheritance but our Statute hath words which tant amount for ours is of all Lands Tenements and Hereditaments which he or she may lawfully depart withal and Tenant in tail may lawfully by fine cut off his issue And it is set down for Law that a gift in tail with condition that the Donee shall not levy a Fine is unlawful a void and repugnant condition for it is said in Mary Portington's Case there be three incidents to Estate tails at the Common Law by Statutes and by Custom By the Statute of 32 H. 8. cap. 28. to levy fines and no condition can take away that from an Estate that is incident to the Estate as it is put of Dower Tenant by the courtesie 11. The last is upon my conclusion admit that the issue in tail could avoid the Lease whether the Vendee hath the same priviledge If Tenant in tail make a Lease not warranted and dies and the issue levy a fine before entry 33 H. 8. Dier The Conizee shall not avoid the Lease 8 E. 3. p. 22. The same is if he accept the Rent or confirm the Lease before entry The Lord Bedford's Case Cook lib. 7. The Kings Gardian shall avoid The King hath the Temporalities of a Bishop he shall avoid and all this is for the benefit of the Heir or Successor and so in our case it is for the benefit of the Bankrupt for in the end they must
grant his Estate upon condition and the reversion is granted and he attorns and then enters for the Condition yet the attornment is void But yet the Law will respect such a possibility as 5 E. 3. fol. 36. Lands were given to the Baron and Feme the Baron dies the Feme makes a Lease for her own life the Lessee is impleaded in a Cui in vita and he vouches the Feme and she prays in aid of the heir of the Husband and well and yet the Feme had nothing If I bargain and sell Lands to one for life and then I grant the reversion and the Barganee attorns and then the Deed is Inrolled this Reversion is well granted and this is a good Attornment But it may be objected that the Land is not in the Conizee upon the extent for if it be extended at too high a rate he may return it upon the extendors for so are the Books of 44 E. 3. 2 H. 4.17 21 E. 3.21 15 H. 7.16 and divers others Books But I make this an Argument for my self for that shews it is out of the Conizor and if the Land were in the extendors hands no doubt but the reversion might be granted and by the Book of 1 E. 3.8 in a quid juris clamat they shall be forced to attorne 2 But admit that such a grant of reversion may be made yet no grant of a reversion can be good without Attornment of the particular Tenant and here your Conizee the Tenant attorns before his time that is before he hath possession by the Liberate and so the case of 8 H. 5. fol. 10. comes full against you To that I answer That the Tenant by Statute is esteemed in point of Attornment as Tenant for term of years for so the Case of 1 E. 3. fol. 8. esteems him And I make small Question but that if a man make a Lease for years and before the Lessee enter the Lessor grants the reversion and the Lessee attorns This is a good Attornment for it matters not whether ever the Lessee entered or not for the Land was in him to give grant or forfeit and 21 H. 7. fol. 27. after such a Lease If the Lessee will not enter yet if the Lessor waive the possession and a rent day accrews the Lessor may have an action of debt against the Lessee without ever making any averment that the Lessee entred So in our Case although the Conizee cannot enter of himself but by the Livery of the Sheriff yet he is not in by the Sheriff but by the Law in the Post And it is not very absurd to say he is in by and under and from the Conizor for if the Conizor had Covenanted that any to whom he after the Recognizance had conveyed the Land should have enjoyed it against all claiming from by and under him and the Conizee had sued execution the Covenant had been broken 3. Then allowing that this first grant of the reversion is good to C. in Tail Then the next question is that C. commits Treason and A. grants the reversion of C. in Fee to D. and C. Attornes Whether this be a good Attorment Whether if C. comes afterwards to be attainted for the Treason and an Office being found hath relation to intitle the King to the Land from the time of the Treason committed that is Whether this Office shall not relate to make C. no Tenant of the Land from the Time of the Treason committed I will agree it will relate to avoid all charges and incumbrances made by C. but yet the Attornment is good for that I will put but one Case that comes full home to the point which is Sir Miles Fleetwood's Case in my Lord Cooks 8. Report which is that the Attainder and Office relate to intitle the King to the Land from the time of the Treason committed but not to Chattels sold or to the mean profits of Lands received so as for the mean time C. was Tenant and might take the Profits and the Rents paid to him by the Tenants were well paid then a fortiore might he do and execute all instrumental Acts as if he had been Lord of a Mannor and a Copyholder after the Treason and before Attainder had surrendred to the use of another who had been admitted the surrender and admittance had been good and so consequently the Attornment for by the Attornment he parts with nothing of his own only he is a means to profit another mans grant of that which was never his 4. The next Question is That the Tenant in Tail commits Treason suffers a Recovery to the use of himself and then it attainted whether the King shall have the Fee-simple or else whether the Office shall not relate to make the Recovery void and whether he in Reversion who by intention of Law had recovered other Land in value shall have any benefit against the King by the Kings priviledge which he hath to avoid this Recovery It is plain that if this Recovery had been to the use of a Stranger the King by Office should avoid it and consequently he in Remainder would have been remitted The difference of the relation of an Office to intitle the King to Goods but from the Attainder and to Lands from the time of the offence committed are these 42 E. 3.26 33 E. 3. Fitz. Forfeiture 30 31 H. 6.5 temp H. 8. Bro. fo 42. I take it that if the King in this Case had taken the benefit of the Statute of 33 H. 8. c. 20. which gives the King all the Lands which a person attainted hath at the time of his Attainder though there be no Office sound then the King might have seized the Land and the party had had no remedy But now an Office being found the King is in by the Office which discovers the whole matter of Record and the party hath the benefit thereby And thereby it appears that C. was by the offence and the relation of the Attainder disabled to make any Conveyance or disposition of his Land That a Common Recovery is a Conveyance vide Coke li. primo Pelhams Case So this Grant of the reversion to D. is good and not pulled out by the Recovery But it is granted to one that is an Alien born but made a Denizen of Ireland whether now the King be not intitled to the reversion in Fee as the Lands of an Alien I take it that he that is free of Ireland is free of England it is true that one which was born in Scotland ante c. and these that were born in times past in Aquitain or in Normandy were Aliens born because these Countries were brought with the Kings of England as their former inheritance but Ireland was conquered by H. 2. and inhabited and planted with Englishmen and upon the matter made part of the demeasnes of the Crown of England as other Islands are as the Wight and Jernesey Virginia and Greenland and therefore the Kings of