and Hall the Dean and Canons of Windsor 22. E. 4. were incorporated by the name of Dean and Canons of the Kings free Chappel of St. George the Martyr within his Castle of Windsor adjudged the variance of the Kings and Queens free Chappel was material although the lease was made in the time of Philip and Marie And he vouched also 44. E. 3. fo 3. and 38. E. 3. fo 28. and he said that it seemed to him that this presentation by another name had gained an usurpation by the Provost in his natural capacitie also it seemeth that notwithstanding it is not found that Doctor Airie was presented instituted and inducced yet the special verdict is good enough to have judgement of his part but he agreed that if the truth of the Case had been discovered by the pleading then it ought to be precisely shewed that such exact finding is not necessary in a special verdict as in pleading and he vouched Allens Case 33. Eliz. Banco Regis where the Iury found that Tenant for life made a lease for years and found not the lessor living nor dead and yet in this Case he was intended living and he cited also Haydons Case Cook lib. 3. and Hunts Case 5. Ma. Dyer 153. and he voucht the Case of West against Munson in a writ of error in the Kings Bench wherein the first action being an Assise in the Common Pleas it was alledged for error that the Iury did not finde the Plantiff was disseised but only the Defendant disseised him and yet the judgement was affirmed Dodderidge the Kings Serjeant for the Defendant he agreed that the name of a Corporation is essential to be alwayes used in their grants for thereby they are distinguished from other Corporations but he conceived that in this Case here is a sufficient supplying of that part of the name which is omitted and he said that although the special verdict in one place mentions the name of Queens Colledge yet when they nominate the Corporation it cals them the Provost and Scholers of the Hall omitting the words Queens Colledge and then they finde that the Provost and Scholers by the name of c. and he said that in so much the Iury found precisely that the same Corporation made the demise it is not material by what name they made it and therefore he said that if a Iury finde that I. S. had made a feofment by the name of R. S. this is good enough as it was holden in Shotbolts Case 10. 11. Eliz. and so in 13. E. 2. fitz tit Bastardy pl. 25. a Iury found that two daughters were heirs and that the Defendant was born in espousals a non suit and so 20. Eliz Dyer 361. the Iury found that Executors received rents incident to the reversion and so assets in their hands and he cited also Dyer 372. to the second matter he thought that the omitting of the name precisely of Doctor Airie made the special verdict vitious and will inveigle the Iudges so that they cannot give Iudgement for it may be that Doctor Airie was presented by the same name of Corporation as the other presentee was for he said in truth the Case was so also the special verdict is vitious because they found not any time of the Presentation of Doctor Airie for peradventure he was presented by the said Colledge when he was Provost thereof and then his presentation is not good by 22 E. 4. and to this purpose he cited Heckers case in 12. H. 8. and one Fuljambes case in 6. E. 6. in Bendlows and then admitting that Doctor Airie should be intended an usurper if he shall avoid this lease it was also moved that if a Corporation by a false name present and admission institution and induction is made by a true name if this make a Plenartie and Boswel and Greens case Cook lib. 6. was cited See more after fol. The Maior of Lincolns Case Huddleston and Hills case IN an Attachment against the Maior of Lincoln and the Steward of the Court there being Colshil it was said that if a writ of error be directed to an inferiour Court they ought to execute it in all things although that their fee be not paid nor tendered to them and Mr. Man Secondarie to Roper said that the fee which is demanded by them ought to be indorsed upon the return of the writ of error so that the Iudges may judge of it if it be reasonable and divers presidents warrant that accordingly Huddleston and Hill against Bows an Elegit upon a judgement issued at the suit of Hill and after Hill died and his eldest son sued a scire facias upon the said judgement and holden that it lieth not If a man sue in the Ecclesiastical Court for Tithes of Headlands the Defendant may have a Prohibition but by some he ought to suggest that they are but small Headlands and that there is a custome of discharge in consideration that he paid Tithes in kinde of Meadows and in this case Williams said that if a man keep sheep in one Parish until Shearing time and then sell them into another Parish in this Case the Vendee shall pay the Tithe wool to the Parish where they were depastured in the greater part of the time of the growing of the wool See the Tithing Tavle the fifth question Skelton against the Lady Airie IN a Prohibition the Plantiff saith that was seised of the Mannor of Calthrop and also of the Rectory of Haughton Calthrop and that the land whereof the tithe is demanded is Coppihold and holden of the said Mannor and that this was also found by special verdict accordingly and that it had been always discharged of payment of Tithes and it was argued that the Prohibition did lie for it was adjudged Mich 34. 35. Eliz. that a perpetual union of the Parsonage and the land charged is a sufficient discharge of the Tithes and a prescription may be well enough to be discharged of the payment of Tithes as it appears by a Case put in the Arch-Bishop of Canterburies Case Cook lib. 2. George Crook of Counsel on the other side and he conceived that a perpetual unitie was no perpetual discharge and he said there was no judgement given in the Case cited before and he also said that the Iury in this Case found not a discharge of payment of Tithes but only a new usage to pay by unitie of possession and he cited 10. H. 7. or 6. where the manner of Tithing is set down also he cited the Bishop of Winchesters Case Cook lib. 2. and he cited the Prior of D. Case to be resolved in 40. Eliz. that a Coppiholder may prescribe to be discharged of Tithes by pleading that he was alwayes Tenant by Copie to a spiritual Corporation also he cited the Case of Pigot and Hern mentioned in Cook lib. 2. in the Bishop of Wintons Case fol. 45. and he said that it was adjudged in Sheddingtons Case that if a
impedit praesentare to the Church of D. the Defendant saith that there is no such Church 22. E. 4. fo 34. an action was brought against I. S. Maior of D. and he Traversed that there is no such Corporation Tanfield chief Baron said that if in an action of Trespass the Defendant saith that I. S. was seised in fee and infeoffed him without that c. and the Plantiff saith that I. S. was seised in fee and infeoffed me without that that there was any such person as I. S. in being this is no good Traverse Hern Baron seemed that this Traverse is good in the principal Case but he was once of Counsel with the Plantiff and it was moved that the Case should be Compounded An Information against Page IN an Information against Page and another upon the Statute of 3. 4. E. 6. cap. 21. for buying of Butter and selling of the same by retail contrary to the form of the Statute upon not guiltie pleaded the Iury found one of them only guiltie both of buying and selling and the other not guiltie and it was moved that no judgement may be given in this Case in asmuch as the action is conceived upon a joynt buying by two and it appeareth that this is but by one but it was argued that judgement ought to be given for it cannot be intended in Law as to this purpose a joynt buying for the wrong is several and in proof thereof was cited 36. H. 6. fo 27. the 11. H. 4. Dyer fo 194. or 195. accordingly also this action is for a wrong done to the Common-wealth which is a several wrong by either and to this purpose was cited 40. E. 3. fo 35. 36. H. 6. cited before and 5. H. 5. fo 3. where an action de malefactoribus in Pareis was brought against three and one only was found guiltie and judgement was given against him and there is no difference as to this purpose between this Case and an action of debt upon a joynt contract made by two as appeareth by 21. H. 7. and Partridges Case in Plowden where it is said that the bargaining is but matter of conveyance to the action and according unto this was cited 33. H. 8. Brook tit issue and also 28. H. 6. fo 7. and 36. H. 6. fo 29. and a Case was adjudgeed in Mich. 35. 36 Eliz. in the Kings Bench which proves the same also where an information was brought supposing the Defendant to have bought Cattle of two contrary to the form of the Statute and it was found that he bought them but of one and yet judgement was given Hitchcock to the contrary and he argued that no judgement ought to be given for he said that if an information be brought against two upon the Statute of usury and one only is found guiltie yet no judgement may be given in this Case to which the Court agreed and he cited Dyer 160.5 Ma. where two sued in the Court of Admiraltie one for an offence triable within the bodie of the Countie contrary to the Statutes of 13. 15. of R. 2. and an action was brought against one of them only and good and he vouched also 22. Eliz. Dyer fo 370.2 R. 3. fo 18. where three brought an account against one he pleads he was never their receiver and the Iury found c. and he cited a case to this purpose an information was brought against two for buying of Cattle of one B. and for selling of them contrary to the form of the Statute and in this Case the Iury found the Defendant not guiltie for the buying them of B. but that he bought them of one P. and upon an attaint of the Iury the opinion of the Court was in this case that though the verdict was affirmed yet no judgement ought to be given thereupon and this was the true Case of Lidwood and Pearpoint cited before on the other side as George Crook said York and Allein A Man recovered damages in an action upon the Case against B. who at the time of the judgement was joyntly seised in fee with C. and that after B. and C. aliened the partie who recovered is outlawed the King eight years after this outlawry extends the moitie of this land for these damages recovered against B. and it was moved if he shall have them in extent for them or not also if he shall have it without a scire facias and the Barons were clear in opinion that he shall have it in extent for it was liable to the extent of the partie outlawed before the Alienation and then when it comes to the King by the outlawry although it be after the Alienation it continueth extendible for the King although the Alienation was before the outlawry It was admitted by all the Barons that if a Coppiholder surrender to the use of a younger son and dies that this younger son cannot bring an action until admittance but if the Copihold had descended to the heir he may have an action before admittance see Cook Coppihold Cases lib. 4. fol. 22. and also it was said that all Coppiholders of the Kings Mannors may now have admittance into their Coppihold estates well enough and the order for the stay of their admittances which was made heretofore is now dissolved and quashed Dennis against Drake DEbt was brought by Dennis against Drake Sheriff for an escape a man had judgement in the Kings Bench and a writ of error was brought within the year and after the year passed the judgement was affirmed in the Exchequer Chamber and within a year after the affirmation a Capias issued to the said Drake the Sheriff who took the partie and suffered him to escape and this being the Case upon the declaration in this action the Defendant demurred and all the Barons said that there is no question but a Capias may well issue within the year after judgement affirmed without a scire facias though it be more then a year after the first judgement and it seemed to them that there was no difference though that the writ of error was not brought untill after the year of the first judgement given although in such case there be an apparant neglect in the partie who had not sued his execution within the year and therefore he was enforced to a scire facias thorough his neglect whereas if error had been brought within the year he had never been driven to his scire facias in this Case yet for asmuch as when the judgement is affirmed this is all one as a new judgement they conceived it made no difference and Tanfield chief Baron said that it had been often so judged in the Kings Bench. It was said here that if a man be instituted to a benefice he ought to pay the first fruits before induction by the Statute but by the Common Law it was otherwise for he is not to have the temporalities until induction and therefore he could not pay the first fruits
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
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
Slade and Morleys case a case was put which proves it to be according Snig Baron agreed that Iudgement ought to be given for the Plantiff and by Tanfield if I take your goods and detain them until I have caused you to pay me 10. l. a general Action of Trespass lieth and not an Action upon the case and it is cited 7. H. 4. or 7. E. 4. to be accordingly but yet he agreed that judgement should be entred and so it was appointed to be done but then Chibborn for the Defendant said that here is a mistrial for if this trust be not material because it is not effectually shewed in the Declaration as you have argued then the Venue shall come only from the parish where the Wares were laid upon the land and not from the parish also where the appointment or trust was made by the Plantiff and therefore the trial also being from both parishes is a mistrial and the Court agreed that this is a mistrial upon that reason for now the appointment or Trust is but an inducement and therefore needs not to be shewed within what parish it was made and therefore a new Venire facias was granted and upon that a new trial and damages more then before and judgement was given accordingly Arden against Darcie NOta a good case of Attornament which was decreed in the time of Baron Manwood betwixt Arden and Darcie and it was this one Arden was seised in fee of divers lands in the County of c. and made a lease for years and after made a feofment with words of Grant of those lands to A. and B. to the use of the feoffor and his wife for their lives the remainder to Arden his son in tail and after the feoffor said to the Lessee that he had conveyed his land which the Lessee held in lease to the uses aforesaid and the Lessee said I like it well and after he paid his rent to the feoffor generally and it was decreed in the Exchequer Chamber that this is no Attornament because the Attornament ought to be to the feoffees and it appeareth not that the Lessee had notice of the names of the feoffees and therefore it cannot be said to amount to an Attornament but notwithstanding that Decree Arden the same to whom the remainder was limited had his Action depending in the Kings Bench to trie the point again as he said to me also this Term a point concerning the said Decree was in question upon another Bill exhibited in the Exchequer Chamber by Sir Edward Darcie against Arden and the case was as followeth Sir Edward Darcie exhibited his Bill here in the nature of a scire facias against Arden to shew cause wherefore the said Edward Darcie should not have execution of a Decree made in the time of Baron Manwood and the Defendant shewed that Darcie in his first suit supposed by his Bill that he had a grant of the land then and now in question from Queen Elizabeth rendring rent as it appears by the letters Patents and in facto there was no rent reserved upon the Patent and that the Defendant gave answer to the said Bill and admitted the Iurisdiction of the Court and after a Decree was made against the Defendant and the Defendant now having shewed this special matter demurred upon this Bill in respect that by his pretence the Court had not jurisdiction to hold plea in the first suit and here it was shewed that the first decree was made upon a matter in Law not properly examinable by English Bill and that in facto the Law was therein mistaken and therefore the Defendant prayed that the decree may be re-examined Tanfield chief Baron it is usual in the office of Pleas that if an action be brought as a debtor of our Lord the King this is good although that de facto no suggestion be made thereof if it be not shewed on the other side and therefore a writ of Error for this falsity shall not cause the judgement to be reversed as it was resolved in a case in which I was of Councel and so here as it seemeth Altham Baron here we are in equity wherein we are not tied to so strickt a course as if it were in the office of pleas Brock of the Inner Temple for the Defendant in a Court of equity it is in the discretion of the Court to deny Execution of a decree if good cause be shewed and in 18. E. 4. fo 1. judgement was given against a married wife by the name of a feme sole and reversed although she did not shew in the first suit that she was married and in 8. E. 4. judgement was given in the Kings Bench in a suit and by writ of error was reversed although the Defendant had admitted the Iurisdiction of the Court and the chief Baron and all the Court inclined that Arden may exhibit a Bill to reverse this Decree made against him and may shew what point in Law the Iudges mistook in the Decree or otherwise we should not do as Law and Iustice requireth for it is not expedient to be examined by way of Bar to this Bill in the nature of a scire facias and after Arden according to the Decree of the Court and their direction did exhibit his Bill in the nature of a writ of error Comprising how the first decree was erroneously made and prayed that the said decree might be reversed and in his Bill he shewed the point in Law which was decreed and that upon divers long conveyances appears to be thus and so it was agreed by Councel on both parties that Arden the father was seised of the Mannor of Cudworth in the County of c. and was also seised of the Mannor of Parkhal in the same County and of Blackclose c. which was parcel of the Mannor of Cudworth but lying neer unto Parkhal and alwayes used and occupied with it and reputed parcel thereof but in truth it was parcel of Cudworth and that Arden the father made a Conveyance of the Mannor of Parkhal and of all the lands thereunto belonging and reputed as parcel thereof or occupied with it as part or parcel thereof and of all other his lands in England except the Mannor of Cudworth to the use of Arden his son that now is Plantiffe here and if Blackclose will pass to the son by this conveyance or if by intendment it shall be excepted by the exception made it was the question here and was decreed in the time of Baron Manwood that it is excepted by the exception but all the Barons now thought it to be a strong case that Blackclose is not excepted by the exception of the Mannor of Cudworth and so the first decree was upon a mistake out of the Law and Tanfield chief Baron said that the point is no other but that I infeoffe you of Blackacre parcel of the Mannor of D. exceyt my Mannor of D. this doth not except the King
be construed to be conditionall because the consideration intended is executed viz. that he hath assumed c. Dyer 76. and 44. Eliz. in the Kings Bench Sir William Lees case in consideration that he had assumed to make a release another promised to pay him 10 l. an action may be brought for the 10 l. without averment of making the release because the consideration is a thing executed viz. the Assumpsit c. but if Executory then the Grant is conditionall as 9. E. 4.19 15. E. 4.9 If an Annuity be granted pro concilio impendendo this makes the Grant conditionall and void for not giving counsell but otherwise it is if it be pro consilio impenso 4. But admitting that here it was conditionall yet the Queen cannot avoid it without Office and so the Plaintiff had no title to enter for an avoidance which was before his grant and so the lease is in esse at the time of the Grant made to the Plaintiff your Grant is without recitall thereof and therefore is void see Knights case Coo. lib. 5. If there be a condition to re-enter for non-payment an Office ought to be found but if it be upon condition to cease for non-payment then it is void to the King without Office as it was agreed in this Court in Sir Moyle Finches case and he vouched Cook lib. 1. Altonwoods case to prove that the lease ought to be recited in the Grant of the reversion or future interest and here although there be a non abstante in your Patent this doth not aid you because it is not found in the speciall Verdict Also for another cause the Plaintif shall not have judgement here for it is not found that the Queen died seised neither that it came to the King that now is and so it cannot come to the Plaintiff and although a fee-simple shall be intended to continue in the same person yet without shewing it shall not be intended to come to the heir 7. H. 7. 3. and so he prayed judgement for the Defendant Tanfield chief Baron said that the case here is by Verdict therefore we ought to intend such circumstances if they be not expressed to the contrary also the seisin of the Queen is shewed to be in Jure Coronae and therefore the intendment that it may be devised by disseisin or abatement between common persons holdeth not here Carew against Braughton Mich. 7. Jacobi in the Exchequer THomas Carew Exequetor of William Carew brought debt against Morgan Broughton Sherif of the County of Cardigan and the case was that John Wyner was in execution upon a Iudgement for William Carew and that after William Carew dyed and that John Wyner brought an Audita querela against Carew Executor of William Carew and upon that Writ he had a venire facias against Thomas Carew and thereupon as the Stat. apoints of 11. H. 6. cap. 10. he put in baile by recogni-zance in the Chancery to the said Thomas Carew and one of the parties for his baile was Thomas Wyner and after upon the Audita Quaerela Iudgment was given against the said Wyner and a Scire facias awarded issued against Thomas Wyner as Bail and after the said Thomas Winer was in execution upon this Recognizance as Bail to the said Thomas Carew and the said Morgan Broughton being Sheriff suffered him to escape upon which escape Thomas Carew brought debt against the Sherif in the debet and detinet and had a verdict to recover and now in arrest of judgement it was moved by Jefferies that the action ought to be brought in the detinet only and he said that if an Action be brought as Executor this alwaies ought to be in the detinet only and he vouched Hitchcock and Browns case remembred at the end of Hargraves case lib. 5. where the case was that one Anthony Brown Executor brought debt against one Lister and that Lister being in execution the wife entermarried the said Lister escaped the Husband and Wife brought debt for his escape in the debet and detinet and there it was resolved that it ought to be in the detinet only and so here and see the custome to plead mentions that the Recognizance acknowledged was to the use of the Executor and not to the use of Thomas Carew by his name but Wild of the Inner Temple prayed judgement and said that the Action is well brought in the debet and detinet and he vouched 9. H. 6. and 20. H. 6. if an Executor recover and after upon the Iudgement he brings debt it ought to be in the detinet but if an Executor sels goods of the Testator and takes an Obligation in his name as Executor yet here the Action upon this Obligation ought to be in the debet and detinet because it is upon his own contract and 1. E. 3. Brooke Executor pla 287. although it appears there and so by 9. H. 6. fo 11. That is good either way and 41. E. 3. Brook pla 545. that if a debt be brought against the Executor upon a contract made by them it ought to be in the debet and detinet or otherwise the Writ shall abate and as 9. H. 6. is at his pleasure to name him Executor or not and therefore c. Snig the second Baron if the Executors bring an Action of goods carried away in the life of the Testator c. and hath judgement to recover 20 l. and dammages for them and upon this judgement he brings debt this shall be in the detinet Altham 3. Baron if an Executor sells the goods of the Testator and an Obligation is made to him for the money for which they were sold without doubt this action shall be in the debet and detinet for the action concerns him in his person and so if he with his own money redeem goods which was pawned by the Testator c. and the Stat. of the 11. H. 6. cap. 10. is that upon an Audita Querela the party who sueth it shall put in Bond to the party c. and the Testator is not party at the time of this Audita Querela but Thomas Crew who is the Executor and it is not as a Proces of execution pursuant c. but is a new thing and so for his opinion suddenly it is good in the debet and detinet Bromley the 4. Baron seemed cleer that if a Bond be made to an Executor upon a simple Contract made with him for the goods of Testator there the action ought to be brought in the debet and detinet but this account is conceived upon a dependency of a duty to the Testator and therefore it ought to be detinet only Tanfield chief Baron the case is doubtfull and therefore it is good to be advised but for this time it seemeth there is a diversity where the Recognizance is Legally forced and where it is voluntary for in our case the Law compels this Recognizance upon the suite which the
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.
purpose as to the avoiding of the Benefice but his want of privitie availeth to excuse him of being Simoniacus yet because he is Simoniace Promotus the presentation is void and the King shall have it by the expresse words of the Statute and therefore as it seems if in this Statute there had been an expresse saving of the interest of the Incumbent by reason of his innocency yet such a saving of Interest had been void and repugnant in respect that it was expresly given to the King before as it is in Nichols case in Plowden upon the Stat. of 1. H. 7. See 1. Mar. Dyer and 7. Eliz. Dyer 231. such a saving doubted if it be void and in Cook lib. 1. Altonwoods case a saving Repugnant to the expresse words of the Premisses is void and so in our Case the Presentation is given to the King expressely and therefore if there were a saving in the words subsequent this were void much more in our Case where there is no saving And to prove that by the Symonie in the Patron that the Patron shall be prejudiced he vouched 42. E. 3. fo 2. It goods be given to B. by A. this is by fraud in A. to the intent that he may defraud another although B. is not knowing of this friend yet the gift is void as to him 34. E. 1. Title Garranty accordingly and Burrells case Cook lib. 6. upon the Statute of 27 Eliz cap. 4. to the same purpose To the second matter it seems that by the Queens death her Presentation is determined cleerely and so in case of a common person for if an Admission c. should follow after the death of the Presentor this is without any Authority of the instrument of Presentation for although there were no Admission there is no Presentation and he said that the Presentation passeth no interest but is as a Commendation and therefore he compared it to the Case of Say and Fuller in Plowden Com. If a Lease be made for so many years as a stranger shall name there ought to be certainty of years appointed in the life of the parties or otherwise it will be void and in 38. E. 3.3 If a Bishop present and die before c. Now the King shall present anew and also there it appears that the King may present by Paroll well enough and so it is said in 34. E. 3.8 tit Quare impedit 11. That a Presentment made by the Bishop becometh null and void by his death and therefore it appeareth in Fitzh Office of Court 29. that licence to alien granted to the King is void by the Kings death there needeth no actual Repeal or recital of the new presentation yet I agree that the King may make an actual repeal if he will as it appears by divers cases which have been cited before but that is of necessity to be done and as it seems the words of the Statute 6. H. 8. prove that before this Statute a second Grant made the first void without actual repeal in case where the thing passed by the Grant and by 38. E. 3. fo 3.4 it appears that a second Presentation made by the King was good without a repeal of the first and by Gascoigne 7. H. 4.32 if the King make a Presentation to one and then presents another without recitall or repeal of the first yet the Bishop ought to receive the latter Presentee for it is good without actual repeal wherefore judgement ought to be given for the Plaintiff Snig Baron said that as the Action is brought judgement ought to be given for the Plaintiff but if the Plaintiff had brought a Quare impedit peradventure I should have been of another opinion And as to the point of Symonie by the Civill Law it was punishable by deprivation and the guilt of the Patron should prejudice the Parson as to matter of Commodity in the Parsonage and at the Common Law if the Parson will pleade such Presentment he should be prejudiced as appears by our Books and hereby the incumbency the words of the Statute will not be satisfied for then the Queen should not Present if an usurper present and the Presentee is in by six moneths this gives Title of Presentation to the King against the rightfull Patron also it seemeth That if I. S. hath an Advowson and A. purchase the next avoidance to the intent to present B. and the Church becomes void and A. presents B. this is Symonie by averment as by good pleading the Presentation of B. shall be adjudged void To the second Point in respect that the Plaintiff had the possession by induction it is no question but he may retaine a possessorie Action for the Titles But if it were in a Quare impedit it would be materiall whether a Repeal should be in the case or not according to the Presidents in the Booke of Entries fo 303 304 305. for if a Licence be Granted to purchase in Mortmaine this may well be executed after the death of the Queene as it appeareth by Fitzherberts natura brevium expresly and so in Dyer a license of Transportation doth not cease by the Kings death 7. H. 4. in the Countess of Kents case it appears when the King makes a grant which is void yet there shall be no new grant without an actual repeal but it seems we are out of the intent of the Statute of 6. H. 8. because the words during his pleasure are not in the grant or Patent and so upon the whole matter judgement shall be given for the Plantiffe Tanfield accordingly the case is that the Defendant had prioritie of the possession of the Corn for which the action is brought and yet it seems judgement ought to be given for the Plantiffe and first as this case is here is Simonie by the Civil Law and the partie had his benefice by Simonie although he be not conusant thereof Secondly admit that here was not Simonie by the intendment of the Civil Law yet the Statute hath made an avoidance of the benifice in this case although it be not Simonie for the Statute speaks not one word of Simonie throughout the Act and yet by express words it doth avoid such presentations as this is and as to the Civil Law such benefice is to be made void by sentence declaratorie but it is not void ipso facto as it seems in the case where a common person was consenting to the Simonie but the text of the Civil Law sayes expresly that the Church ought not to be filled Corruptivè or by corruption and the Civil Law expresseth such a person as is in our case by Simoniace promotus and calls him who is particeps criminis Simoniacus and he who is Simoniacus is by the Civil Law deprived not only of the benefice ipso facto but also is deprived to be a Minister and adjudged guiltie in Culpa et poena Petrus Benefieldus a late writer of good authoritie saith that if a friend
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
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
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
of the wife of the devisor is not determined until the issue should have come to the age of 18. years and so none of the other points came now in question and judgement was given as above-said Nota that in Mich. 6. Jac. upon a motion made by Mr. Nicholas Row of the Inner Temple it appeared that an inquisition was returned in this Court by force of a commission whereby it was found that one A. was seised of the Mannor of D. and so being seised of the said A. was attainted of Treason in the Kings Bench and of this should be a double matter of Record to intitle the King so that the owner of the land shall be forced to his Petition it was the question and by the Court in regard that the record of the attainder is not in this Court here is not in judgement of Law a double matter of Record but if the attainder he removed into this Court then that and the inquisition would make a double matter of Record and the Attorney general moved that when an office findes the attainder that the party ought to plead no such record Worselin Mannings case AN Information of intrusion was brought against Worselin Manning and others and upon the opening of the evidence at the Bar it appeared that Worsely Manning was an alien born and that he was made a denizen by the King and the Charter of Denization had this Proviso usual in such Charters of Denization that the Denizen should do legal Homage and that he should be obedient and observe the Lawes of this Realm and after by vertue of a Commission under the great Seal an office found that the said Worselin after the Denization purchased the land in question and it was found also by the same office that the said Worselin never did legal Homage and that he was not obedient to all the Lawes of this Realm and there was an offer of demurrer upon the evidence if the Prviso makes the Patent of Denization conditional and so for the not performance thereof the Charter of Denization shall be void and Harris thought clearly that this proviso for the performance and observation of the Lawes doth not make the Patent conditional but the intent only was that if he do not observe them then he shall forfeit the penalties therein appointed to which the Court inclined and after resolved accordingly At another day it was moved in Mr. Rowes case that the possession shall be awarded to the King and in this case Tanfield gave a Rule that Mr. Row ought to plead to the inquisition but no possession should be taken from him for although that the attainder make a double Record yet if the indictment of Treason be taken before Iustices of the peace more then a year after the Treason committed as in this case it was and the partie is outlawed upon this indictment and the inquisition findes this outlawry generally yet this is no double matter of Record for the outlawry is meerly void upon the said indictment because the indictment it self is void and to prove that when an indictment is void that is void as to all purposes be vouched Vauxes case Cook lib. 4. fo 44. and 11. R. 2. and after in this case the Barons awarded proces to plead but not to dispossess the partie Vaux against Austin and others AN Information by Vaux against Austin and others that they did ingross a 1000. quarters of Corn upon not guiltie the Iury found one of the Defendants guiltie for 700. and not guiltie for the residue and found the others not guiltie for all Prideaux moved that judgement may be given to acquit the Defendants in this case and he vouched the 9th of E. 3. fo 1. and 14. E. 4. fo 2. where an Information was brought for forgery and proclaiming false deeds and he was found not guiltie of the proclaiming and 3. Eliz. Dyer 189. in the Lord Brayes case put by the way and therefore he said that if there be an information upon the Statute of Vsury against two and the Iury found the contract to be but with one of them both shall be acquitted and also he vouched Treports case in lib. 6. where a man declared of a lease made by two where in Law it was only the lease of one and the confirmation of the other and therefore evil 8. R. 2. tit brief and if judgement in this case should be given against one being in a joynt information he could not plead it in Bar of another information for the same thing and then he should be twice punished for one fault Hitchcock to the contrary the Defendants plead that they nor any of them are guiltie and issue was joyned thereupon and by him this case is not to be resembled to the cases which have been put of joynt contracts for here the parties commit several wrongs and he said if in a decies Tantum against divers if one be acquitted the other shall be condemned and so in an action of Trespas 37. H. 6. fo 37. touching maintenance and if in Trespas against two one is found guiltie for one part and the other found guilty for the other part and 40. E. 3. fo 35. and 7. H. 6 32. in trespas the Defendant pleads that John S. infeoffed him and R. S. and the Plantiff saith that he did not infeoffe them and the Iury found that be infeoffed the Defendant only in this case judgement ought to be given if either of them be guiltie and therefore there is a difference between that and Wain-wrights case for the information was for the joynt buying of butter and Cheese but here the information is for ingrossing by way of buying and so he prayed that judgement may be given for the King Tanfield chief Baron if upon the Statute of Champertie a man declares upon a joynt demise by two and it is found that one only made the demise it was adjudged good and by him this proves the case in question and the Barons agreed it to be clear that if a contract be alledged to be made with one of them no judgement for usury ought to be given but in the principal case all but Tanfield agreed that several judgements may be given for it is like unto a Trespass and accordingly judgement was given in the principal case against him who was found guiltie Nota by Tanfield chief Baron and all the Court that where the Statute of the 23. Eliz. appointeth that if any will inform against A. Recusant and the Recusant be thereupon convicted that the informer shall have one moitie and the King shall have another yet if a recusant be convicted according to the form of the Statute of 28. Eliz. by indictment an informer can never have any advantage upon an information exhibited after for the Statute of the 28. Eliz. altereth the course of Law which was upon 23. Eliz. and no informer can have any advantage upon a conviction of Recusancy by indictment after the Statute
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
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
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
declares the use to be to himself for life and after to T. B. with power of revocation and to limit new uses and if he revoke and not declare then the use shall be to the use of himself for life and after to Henry Becket with power in that indenture also to revoke and limit new uses and that then the fine shall be to such new uses and no other and after 42. Eliz. by a third Indenture he revoked the second Indenture and declared the use of the fine to be to the use of himself for life and after to Hen. Becket in taile the remainder to I. B. c. R. B. dies and T. B. his brother and heire is found a Recusant and the lands seised and thereupon comes H. B. and shews the matter as above and upon that the Kings Atturney demurreth Bromley and Altham Barons that the Declaration of the uses made by the third Indenture was good and he having power by the first to declare new uses may declare them with power of Revocation for it is not meerly a power but conjoyned with an interest and therefore may be executed with a power of Revocation and then when he by the third Indenture revokes the former uses now it is as if new uses had been declared and then he may declare uses at any time after the Fine as it appears by 4. Mar. Dyer 136. and Coke lib. 9. Downhams case and in this case they did rely upon Diggs case Cooke lib. 1. where it is said that upon such a Power he can revoke but once for that part unlesse he had a new power of Revocation of Vses newly to be limited whereby it is implyed that if he had a new power to appoint new uses he may revoke them also Snig Baron to the contrary and said that he had not power to declare 3. severall uses by the first contract which ought to Authorise all the Declarations upon that Fine and then the Revocation by the third Indenture is good and the limitation void and then it shall be to the use of R. B. and his heirs and so by the death of R. B. it doth descend to T. B. the Recusant and also he said that such an Indenture to declare uses upon uses was never made and it would be mischievous to declare infinite uses upon uses Tanfield held that the uses in the second Indenture stand unrevoked and the new uses in the third Indenture are void and then H. B. ought to have the Land again out of the Kings hands The power in the second Indenture is that he may revoke and limit new uses and that the Fine shall be to those new uses and no others and then if there be a Revocation and no punctuall limitation he had not pursued his Authority for he ought to revoke and limit and he cannot doe the one without the other Also he said that after such Revocation and limitation the fine shall be to such new uses and no other then if there be no new uses well limited in the third Indenture the former uses shall stand void Nota it seemeth that if a man make a Feoffement and declare uses and reserve a power to revoke them without saying moe he cannot revoke them and limit new for the use of the Fine being once declared by the Indenture no other use can be averred or declared which is not warranted thereby for he cannot declare the fine to be to new uses when it was once declared before Cook lib. 2.76 That no other use can be averred then that in the conveyauce Cooke lib. 9 10 11. Although that the first uses are determined as if a man declare the use of a Fine to be to one and his Heires upon condition that he shall pay 40. l. c. or untill he do such an Act if the first use be determined the Fine cannot be otherwise declared to be to new uses And therefore it seemes that all the uses which shall rise out of the Fine ought to spring from the first Indenture which testifieth the certain intention of the parties in the leaving thereof and then in the Case above the second Indenture and the limitation of new uses thereby are well warranted by the first Indenture and in respect that this is not a naked power only I conceive that they may be upon condition or upon a power of Revocation to determine them But the power to limit the third uses by a third indenture after revocation of the second uses in the second indenture hath not any Warrant from the first Indenture and without such Warrant there can be no Declaration of such new uses which were not declared or authorised by the first Indenture which Note for it seems to be good Law FINIS AN EXACT TABLE of the Principall Matters contained in this BOOKE A. AN Action of false impriprisonment for taking his wife in execution she appearing as a Feme sole 48 52 An Action upon the Case for conspiring to outlaw a man in a wrong County 49 Amerciament for a By-law 55 An Action upon the Case where against a Servant for breach of trust much good matter 65 66 67 68 Amerciament where well levied by the Sheriff 74 Action by an Executor against a Sheriff in the debet and deâ—â—net where good 80 81 Authority in fact and authority in Law abused a difference 90 Action for these words against I. S. spoken of the Plaintifs wife she would have out her husbands throat and did attempt to doe it 98 C. Custome for Pirates goods if payable 15 Coppy hold surrendred to the use of a younger Sonne he can have no Action before admittance 20 Churchwardens if elected by Vestry-men where good and capable to purchase Lands 21 Conspiracy see Action Collector of a fifteenth leviable upon one Township 65 Commissioners of inquiry and their power 83 84 D. DEbt against the Sheriff for an escape a good Case 20 Distresse for a By-law upon the Kings Tenant he must bring his Action in the Exchequer 55 Devise to the wife until the issue accomplish 18. years endeth not by death of the issue before 56 57 Decree where execution thereof may be stayed 68 69 E. ERror a Writ directed to an inferiour Court ought to be executed without fee paid or tendered 16 Elegit the party who sued it dieth no scire facias for the Heire 16 Equity where releviable in the Exchequer 54 Estreats where they may be discharged for insufficiency in the Indictment or not mentioning the offence 55 Estoppell in the Kings case 65 Exception in a Grant 69 Escape a difference where caused by a rescous and where by the Sherif or Bailif 70 71 Executor see Action 80 81 Erroneous judgement given in the Kings Mannor reversed in the Exchequer by Petition 98 F. A Feoffement to the use of the Husband and Wife for their lives and after to the heirs of the body of the wife begotten by the Husband what estate 17 First fruits ought
demurrer joyned George Crook for the King conceived that the lease made in the 26. Eliz. is good first he said that although the Queen cannot take an inheritance of freehold without matter of Record yet she may take Chattels upon a surmise made that they were granted unto her and therefore he vouched 21. H. 7. fo 19 that an Obligation may be granted to the King without inrolment of the grant and 40. Assise pl. 35. Brook tit suggestion pl. 5. it appears that the King shall have a Chattel by a demise by parol upon a suggestion made thereof in the Exchequer without a Record and in the 15. H. 7. fo 15. the Kings Baylie who is not of Record may be compelled to accompt upon a suggestion made Brooks suggestion pla 31. and in the 37. H. 6. fo 7. 18. if the King gives goods with his hands this is good although no record be made thereof because it is but a Chattel and by the same reason he inferred that he may also accept of Chattel without a Record but admitting that he cannot take without a Record it seemeth that here is a thing well enough Recorded to intitle the King after the return made by the Commissioners for the Commissioners are officers of Record to this purpose and they endorse the prayer of the partie to have it Recorded and this being after the return is a sufficient Record to intitle the King and he vouched the 2. H. 7. fo 10. where the servant of Iustice Catesby after the death of the Iudge made a return and this was good and the 8. H. 4. a Record certified by a Iudge after he was displaced and 43. Assises if a Coroner makes his Rols and dies before he certifie them they may be certified after his death and so here this acknowledgement and prayer being certified may at any time after be inrolled and although it seemeth by the Book in the 19. Eliz. Dyer fo 355. that a grant being made to the King and acknowledged before one of the Masters of the Chancery and inrolled in the time of another King maketh not the Grant good yet he said that it was adjudged for another grant made to the King by the Duke of Somerset and acknowledged before one of the Masters of Chancery and inrolled in the time of another King was good enough to perfect the grant and this was by a grant made by the Duke of Bozoms Inne in London and he said that it is not reasonable that the Law should adjudge otherwise for it may be that the Clark will not inroll it untill such a time viz. a moneth within which time the King may die should it now be reasonable that it should not be inrolled at all he said it was unreasonable and he said that it appeareth by the 37. H. 6. fo 10. that a deed delivered at the Kings Coffers is good enough to avoid his lease made in the 44. Eliz. for although that it be true that a grant of a reversion shall never operate to the destruction of a right of a third person yet it seemeth that an Act commenced may be confirmed well enough to the destruction of a mean interposed Act and it seemeth that the inrolment here is but a confirmation of a precedent lease and not a relation to make a thing which was not before and therefore to examine what thing an inrolment is and it seemed to him that it is no matter of Record as it appears 24. E. 3. and 29. H. 8. fo 15. and therefore it appears by Wymacks Case Cook L. 5. that a deed inrolled ought to be pleaded hic in Curia Prolat which proveth that the deed and not the inrolment thereof is the thing which passeth the estate and therefore he vouched the case in the 6. E. 6. Brook title faits if one joynt Tenant sells all his land in D. and after his companion dieth and then the deed is inrolled yet a moitie only shall pass and 41. Eliz. Cook Perimans Case lib. 5. if a man make a feofment of lands and inroll the Deed within the Mannor as by the custome it ought to be yet the inrolment shall pass nothing and therefore it is there said the inrolment may be good enough after the death of the parties so by the same reason aforesaid it is put in the same Case of Perimon and also in Butlers and Bakers Case Cook lib. 3. that if a man deliver a writing as an escrow to be his Deed upon certain conditions performed and after the Obligor and the Obligee die and then the Conditions are performed the Deed is good for there was traditio inchoata in the life of the parties and this being after consummated takes his effect by force of the first delivery and acknowledgement and therefore also he said that it was lately adjudged that if two men are mentioned to be bound by one Obligation and the one seals at one day and the other at another day this is as good as if it had been at one day and therefore he said that there is no doubt but if a lease be made to the King by a Bishop and after another lease is made also of the same land or if the Bishop die yet if after the first lease be inrolled this is good and therefore also he cited a case to be adjudged in Banco Regis 41. Eliz. between Collins and Harding that if a man be seised of freehold and Coppihold land and makes a lease of both for years with licence rendring rent and after he grants the reversion of the freehold and makes a surrender of the Coppihold to the use of the same person and an attornment is had for the freehold and the presentment of the surrender for the Coppihold is not made untill a year after yet he in reversion shall have an action of debt for all the rent for the presentment of the surrender is but a perfection of the surrender before made also he cited the case as I observed him to this effect in the 9th of Eliz. in the Abbot of Colchesters Case where he said that the Abbot of Colchester committed treason and after made a lease for years and then he surrendred to the King all his lands and after an office found the treason and it was holden the lease is good against the King who took by the surrender and not by the treason committed before but as Walter said the case was adjudged that the King should avoid the lease for now he is in by the treason paramount the surrender Phillips against Evans IN an Ejectione firmae brought up three acres in the forrest of Kevington in the Countie c. the Defendant pleaded not guiltie and the Venire facias was awarded de vicineto of the forrest and the Defendant moved in arrest of judgement because the Venire facias de vicineto of the forrest was not good for as Stephens for the Defendant said that a forrest and the name thereof is but
and therefore he vouched a case between Scockwood and Sear where a man devised part of his land to his wife for life and another part of his land until Michaelmas next ensuing his death and further by the said will he devised to his younger son all his lands not devised to his wife and adjudged that by the said words the younger son shall have only that parcel which was devised to the wife for life and not that which was devised unto her till Michaelmas and yet by Popham it appeareth that his intent was otherwise viz. that all that should go to his younger son so there ought not to be a strained construction made against the heir and so in our case the words being that if he die without issue c. that then it shall go to his wife herein as much as he had issue at the time of his death it cannot be said that he died without issue but that he is dead without issue and this appeareth by the pleading in the Lord Bartleys case in Plowden and he vouched also a case in the Kings Bench 4. Jac. between Miller and Robinson where a man devised to Thomas his son and if he die without issue having no son there it was holden that if the devisee had issue a son yet if he had none at the time of his death the devisee in the remainder shall have it yet he was once a person having a son and so in our case there was a person who did not die without issue and he vouched also the case of Bold and Mollineux in 28. H. 8. Dyer fo 15.3 when a man deviseth to his wife for life paying a yearly rent to his sister and that if the rent be not paid that the sister may distrain it seems to me that this is a conditional estate in the wife notwithstanding the limitation of the distress and he vouched 18. Eliz. in Dyer 348. which as he said proved the case expresly for there in such a case it is adjudged that the devisee of the rent may after demand thereof distrain and yet the heir may enter for the not payment of the rent although it were never demanded so that the subsequent words of distraining do not qualifie the force of the condition although there be there an express condition and in our case but a condition implyed and he said that it seemed reasonable that such a construction for the distress and condition also shall stand as appeareth by divers cases that upon such words the Law will allow a double remedy and therefore he vouched Gravenors case in the Common Pleas Hill 36. Eliz. Rot. 1322. where a lease was made by Magdalen Colledge to husband and wife so that if the husband alien that the lease shall be void and provided that they do not make any under-tenants and to this purpose he vouched the case of the Earl of Pembrook cited in the Lord Cromwels case Cook lib. 2. where the words amounted to a covenant and a coudition and if this word paying should not be construed to be a condition then it were altogether void and idle and such a construction ought not to be made in a will and he conceived that this rent ought to be paid by the wife without any demand upon the pain of the condition and therefore he vouched 22. H. 6. fo 57.14 E. 4 21. E. 4. by Hussey and 18. Eliz. Dyer 348. vouched before and so it was resolved as he said in the Court of Wards in Somings case where a man made a devise paying a rent to a stranger this ought to be paid without demand and he said that the Common case is proved when a feofment is made upon condition that the feoffee shall do an act to a stranger this ought to be done in convenient time without request by the stranger and so here it seemeth although a demand ought to be made by the sister yet the wife ought to give notice to the sister of the Legacy so that she may make a demand and therefore he vouched Warder and Downings case where a man devised that his eldest son upon entry should pay to the younger son such a summe of money here the eldes brother ought to give notice at what time he will enter to the intent that the younger brother may be provided to make a demand Edwards of the Inner Temple contrary First it seemeth that by this limitation the wife ought to retain the land until the issue of the devisor should have come to the age of 18. years for this a time certain and as it is construed upon such words in Borastons case Cook lib. 3. that the Executors there have an interest certain so it should be construed here to refer to a certainty which is until the time by computation that the issue should have attained to 18. years and the rather in this case in respect the devisor had otherwise disposed of the land until the son should have accomplished the said age Secondly it seemeth that the wife hath an estate for life not conditional in so much as the words are not joyned in the case the 18. Eliz. Dyer hath been vouched but that was upon an express condition but here it is by implication and then the clause of distress taketh away the force of the implication which otherwise might be thereupon inferred and therefore in 5. Eliz. Dyer it appeareth that the word Proviso annexed to other words makes it no condition in judgement of Law and so in 14. Eliz. Dyer 311. and he vouched also 18. Eliz. Dyer Greens case that if a man deviseth lands to his friends paying to his wife with a clause of distress this is no condition as it is adjudged Thirdly it seemeth that this summe to be paid to the sister is a rent and therefore ought to be demanded or otherwise in judgement of Law the condition shall not be broken and the 21. E. 4. the case of an obligation to perform covenants c. and a case between Wentworth and Wentworth 37. Eliz. that a demand ought to be made for a rent which is granted in liew of Dower for the wife brought a writ of Dower for the land of her husband the Tenant pleaded that she accepted a rent out of the land in liew of her Dower and the wife replied that the said rent was granted upon condition that if it were not paid at certain dayes that it should be void and that she should have Dower of the land and she said that the rent was not paid at the dayes c. but shewed not in her pleading any demand to be made and therefore it was holden evil pleading for such a rent ought to be demanded or otherwise the condition is not broken and so here Nota that this case was appointed to be argued again but after as I heard the Barons amongst themselves resolved to give judgement for the Defendant upon one point only which was that the estate
therefore he had done well to shew the special matter as he had done and not to confess it as it is in the in formation nor to traverse the said demise because it is matter in Law 5. H. 7. and Vernons case Cook lib. 4. he needs not traverse absque hoc that the lease was made for and in satisfaction of Dower and to shew the special matter viz. that it was a conditional lease and so leave it to the Iudges for the matter in Law if it be a joynture or not also it seemeth to me that it is sufficient for the Bar to say that the Commission was not returned by Hammond and Porter for that is a Traverse to the information and it cannot be intended to be returned by any other of the Commissioners in regard that those two only did execute it for the taking of the acknowledgement as the information mentions but he said nothing in this case if this Commission may be returned by those Commissioners who took not the acknowledgement also by him and Snig Bromley absent sigillo suo ratificat is good enough without saying sigillo suo sigillat contrary to Baron Altham also the Defendants have shewed the time in their Bar when the first lease was intolled so that it is certain but it seems to me that admit the matter in Law was for the King yet upon this information we cannot give judgement for him for the information is for the mean profits incurred before the inrolment and this is clear that the King cannot have them without doubt admit that the Bishop had been living yet the inrolment cannot relate as to the mean profits although it should be admitted to be good to make the lease good at the time of the inrolment and so upon all the matter he agreed that judgement ought to be given against the King and so it was Tanfield chief Baron said that if a man take a lease of my land from the King by Patent rendring rent this is not an Indenture to compel him to pay the rent for the King had nothing to grant whereupon a rent might be reserved to him Altham Baron said that the King shall have the rent here as by estoppel between common persons but it was adjourned It was said by Tanfield chief Baron that a Collector of a fifteenth may levie all the Tax within one Township upon the goods of one inhabitant only if he will and that inhabitant shall have aid of the Court to make each other inhabitant to be contributory which was granted by the Court Bromley being absent Tanfield chief Baron said that if a man had judgement against A. upon an Obligation who dieth and another Obligee of the said A. assignes his Obligation to the King the Executors of A. satisfie the said judgement it is good against the King in respect the debt now due to the King was not upon Record before the death of the Testator which was granted by the Court. Levison against Kirk THis Term the case between Levison and Kirk which was opened the last Term was adjudged and the case was that Levison brought an Action upon the case in the office of Pleas against Kirk and declared that whereas the Plantiff was a Merchant and 13. Martii 40. Eliz. intended to go beyond the Seas to M. to Merchandise and the same day and year at D. he acquainted the Defendant with his determination and then in the same place appointed and trusted the Defendant being his servant to receive for him all such Merchandise and goods which should be sent over or carried or conveyed by the Plantiff in the same voyage and to pay for the custome of them and to dispose of them and convert them for the profit and commoditie of the said Plantiff and thereupon conveyed divers goods to the Defendant and that the same day and year the Plantiff took shipping and sailed to M. and that within five dayes following 20. pieces of Velvet were brought into the Port of S. consigned by the Plantiff to the Defendant in the absence of the Plantiff and that the Defendant on purpose to deceive the Queen of her custome and to make the Plantiff to allow custome unto him did take of the said goods so consigned and land them on the land at S. aforesaid the custome not paid whereby the Plantiff lost his goods as forfeited for default of payment of custome to the damage of c. and upon not guiltie pleaded a venire facias was awarded to the the Sheriff that he should cause to come 12. from the Venue of D. and those c. viz. from the place where the trust was reposed and from the place where the trust was broken and thereupon the Defendant was found guiltie and damages 50. l. and in Pasch Chibborn Serjeant moved in arrest of judgement that the Action did not lie for every fault against the servant although it be such a misfeazance for which the Plantiff receives prejudice and therefore if you will have an Action in this case you ought to shew a special trust reposed and a breach of that trust by the servent or otherwise an Action upon the case lieth not and that is not observed here for although that you shew that the Defendant being your servant was appointed and trusted for the goods to be consigned in the said voyage yet you did not shew that these goods were not consigned in the said voyage neither do you shew that he was such a servant generally used to be imployed in trading for your goods neither do you shew that you have allowed or delivered moneys to him to make him able to pay the custome and to say that by the sale of the goods themselves he may pay it himself and you appointed him to dispose them at his pleasure yet hereby you do not inable him thereunto for he ought to pay the custome before he sell them and them peradventure he had not money to discharge the custome wherefore there is no cause of your Action as this Declaration is and therefore he prayed that judgement may be stayed George Crook prayed that judgement may be given for although it bâ— not expresly shewed that the Plantiff continued beyond the Seas in the said voyage at the time of the coming of the goods to the said Port yet the intendment ought to be so of necessitie in regard it is shewed that within five dayes after his departure and in his absence these goods were consigned c. and his return cannot be intended in so smal a time and he vouched 21. E. 4. fo 13. also it is not material in the case to shew that the Master hath left where withal to pay the custome for here the Action is brought in respect of deceipt and fraud in the Defendant and this is inferred divers wayes the first that the Defendant ought to receive my goods Secondly that he should pay the custome Thirdly that he should dispose of them at his pleasure for
by express terms quaer if in this case there was any land occupied with Parkhal which was not parcel of Cudworth nor of Parkhal for if so then it seems that Blackclose will be within the exception in regard that the words and lands occupied therewith viz. Parkhal are well satisfied Harris Serjeant said that the case is to be resembled to the point in Carter and Ringsteeds case concrrning the Mannor of Odiam where a man was seised of of a Mannor within which the Mannor of D. did lie and is parcel thereof and he by his will devised the Mannor of D. excepting the Mannor of Odiam where the Mannor passeth by the devise and is not excepted Snig and Altham Barons agreed that this proves the case in equity but by the chief Baron Tanfield because this is a rare case that we should reverse or undo a decree made by our predecessors in the very point decreed by them it is good to be advised and therefore they directed Arden to finde presidents if he could by search made for them in the said case and therefore the Attorney general who was of Councel for Darcie had demurred upon the Bill which was exhibited by Arden and that he being not present day was given until another term to hear Councel on both parts at which day the Attorney said that he conceived it a strange case and without president that a Court should impeach and reverse the decrees given in the same Court and that if it should be suffered the subjects would be vexed and troubled without any end or quiet and this stands with the gravity of every Court to maintain their own judgements and therefore several Statutes were made to reverse judgements upon erroneous proceedings and judges of other Courts constituted to examine them which proveth that before the Statutes aforesaid and without aid of them the Iudges would not reverse their own Iudgements and so here Harris to the contrary it is not without presidents that in a Court of equity one and the same decree in the same Court hath been reversed by decree of the same Court upon some consideration had of the erroneous misprisions of Law and it is no dishonour to a Court of justice so to do for matter in Law but otherwise it were for matter of fact for then that betrayeth an Ignorance in the Iudges which would be a dishonour to the Court but for Law men are not Angles and for that point there may be errour to prove that the Court of equity may do so he vouched the Book of 27. H. 8. fo 15. Martin Dockwraies case which is our very case ruled in the Chancery and so he said that in this Court 3. Jac. a decree made in the time of Baron Manwood was reversed upon the like reason and Tanfield chief Baron said to Serjeant Harris that if it appear by your president that if the same matter in Law which was decreed was reversed in the same point in Law then this proveth for you but if it were for matter of fact otherwise it is and therefore we will see your president Kent and Kelway KEnt and Kelway entred Hil. 6. Jac. Rot. 722. in the Exchequer in the case between Kent and Kelway which was debated Pasc 8. Jac. the Iudges pronounced in the Exchequer Chamber that judgement ought to be affirmed notwithstanding their opinion before to the contrary as it appeareth and therefore I demanded of Mr. Hoopwel Clark of the Errors what was the reason of their opinions and he told me that the case was debated by them this Term at Serjeants Inne and then they resolved to affirm the Iudgement and the reasons as he remembred were as followeth and he also delivered unto me the case as he had collected it out of the Records and delivered it to the Iudges which was that the Plantiff in the Kings Bench declared that one Benjamin Shephard was indebted to him in 300. l. and that he sued out of the Kings Bench an Alias Capias directed to the Sheriffe of N. to the intent to compel the said Benjamin Shephard upon his appearance to put in Bail according to the custome of that Court for the Recovery of his debt which writ was delivered to John Shaw Sheriffe of the said County to be executed the Sheriffe made his warrant to the Bailiffe of the liberty of the Wapentake of Newark and the Plantiffe himself delivered it to James Lawton Deputy of the Lord Burley the Kings chief Bailiâ—e of that liberty to be executed and the Deputy Bailiffe by vertue of the said warrant arrested the said Benjamin Shephard whereupon the Defendant with others made an Assault and rescued the said Benjamin Shephard out of the custody of the said Deputy Bailiffe whereby he lost all his debt and damages were assessed at 172. l. and cost 10. l. and in this case the Iudges agreed that notwithstanding the Defendant had rescued the said Benjamin Shephard out of the hands of c. when the said Benjamin Shephard was arrested upon an Alias Capias out of the Kings Bench which writ is only in nature of a plea of Trespass yet the party who rescued him shall answer in this action damages for the debt because the Plantiffe by this means had lost his debt And yet it is not shewed that the Rescuer knew that the Plantiffe would declare for his debt but if in this case the Sheriffe or Bailiffe had suffered a Negligent escape they should be charged only with the damages in the same plea as the writ supposeth and no for the debt and so a diversity also they agreed that the Declaration is good enough to say that he was rescued out of the hands of the Deputy Bailiffe and the course in the Kings Bench was alwayes so upon the return of a rescue notwithstanding the Book of the 7. Eliz. Dyer fo 241. also it was resolved that the Declaration was good saying that he sued an Alias Capias without mention of any latitat before sued also it was agreed that the arrest was good made by the Deputy Bailiffe by vertue of a warrant delivered to the Sheriffe but quere if they should not examine if the Bailiffe had a power given to make a Deputy by his Patent for this appears not in the case Bently and others against Leigh in Trespas Hill 45. Eliz. Rot. 1231. Trin. 7. Jac. in the Exchequer TPe Iudges affirmed a Iudgement this Term between Leigh Plantiffe in a writ of Error and one Bentley and others Defendants and the matter assigned for Error was because the Trespass was brought in the year 45. Eliz. for a Trespass made in the 42. Eliz. and the judgement upon the verdict was against the Defendant and the Margent of the Roll it was entred quod Defendens capiatur where it ought to be pardonatur as he pretended for the general pardon which was in 43. Eliz. had pardoned the fine to the King for the Trespass and this is a thing whereof the Iudges
Executor prosecureth as Executor c. and for the Testator and there it ought to have a resemblance of the Regionall debt and although that the Statute appoints that the sayl shall be to the party as Altham Baron remembred yet here as the pleading purports the Bayl is to the aforesaid Executor which implies a legall dependency upon the first suit Then it hath been granted and the Law is so that if an Executor recover a debt which was due to the Testator and hath judgement for it now if you will have an action upon this judgement this ought to be in the detinet because it is a legall pursuance of a thing given to the Testator and not voluntary as a bond for further security or assurance and so here the Bayl being pursuant and compulsory but by 5. E. 3. if it be voluntary then it ought to be put in the Kings Bench to an Executor which is to be resembled to our case if an Executor bring debt upon a Bayl it ought to be as Executor and not as I. S. cleerely Altham the Bayl in the Kings Bench is upon the originall suit and so it is not here wherefore c. to which it was not answered but for that matter it was adjourned see H. 6. in the Kings Bench if a Feme c. take Husband and one of the Debtors of the Testator promise the husband if he will forbear his suite to pay the debt if the Husband will commence his action upon this promise it ought to be in the name of his Wife also because the action pursueth the Originall debt Williams contr it was agreed that if the Law were such that the Action ought to be in the detinet only then the bringing of it in the debet and detinet is such a Ieofaile as is not aided by the Statute of 18. Eliz. Nichols case and Chamberlains case Cook lib. 5. Tanfield chief Baron said in this case that it is proper that the Action ought to be brought in the detinet only but as our case is here is no issue joyned because here is not a negative and an affirmative for the declaration is that he oweth and detaineth and the Bar whereupon the issue is joyned is that he oweth not so where if his Action ought to be in the detinet then there is not any Nâ—gative and so no issue which was not denyed at another day they agreed that the action ought to have bin in the detinet only and therefore judgement was given that the Plaintif take nothing by his bill Sir Henry Browns case touching the Countesse of Pembrook SIR Henry Browns case wherein Hawkins and Moore were parties was this the Plaintif declared of an ejectment of the Mannor of Kiddington Dâ—le Sale and doth not mention them to be adjacent to any Ville and also of an 100. Acres of Land lying in the same Ville of S. and that upon not guilty pleaded the Iury at the Assises at Oxon were ready and then the Defendant pleaded that the Plaintif after the last continuance had entred into a Close called Well Close parcell of the Tenements mentioned with conclusion and this in the Declaration he is ready to aver and demanded judgement if it c. and this was before Yelveton Iudge of Nisi Prius there and now the Plea here was debated And 1. in this case it was upon conference with all the Iudges allowed that this plea may be pleaded at the Assises well enough and the Iudge there accepting of it had done well but as Tanfield chief Baron said the Iudges may allow it or not for if they perceive that it is Dilatory they may refuse it for it is in their discretion and therefore c. But by Dodderidge the Kings Serjeant the Iudge of Nisi prius is not Iudge thereof if it be well pleaded or not but is to give day to the Parties in Court where the Suit depends to maintain this Plea for he is only appointed Iudge to take the issué and upon such Plea he ought to discharge the Iury of the matter in issue and record the Plea and this is all his duty and by him in this case here is a Discontinuance for the parties have no day given upon the Roll as it ought to be for the day in bank in judgement of Law is all one with the day of Nisi prius and this is of course given to the Parties to hear Iudgement only concerning the matter in issue and here is other matter and therefore the Iudge c. Nota that in all Cases where a thing is pleaded triable before other Iudges the Iudge before whom it depents ought to give day to the Parties to be before the Iudges where the matter is tryable 12. E. 3. Voucher 115. and Title Day 25. and 34. and Assise pla 14. a Lord demands Cognizance of Pleas day ought to be given to the Franchises or otherwise it is a discontinuance of the Nisi prius for there ought to be a speciall day for the parties here to hear judgment in this Plea 10. H. 7. fo 26. so if at the Nisi prius a protection be cast the Iudges shall give day to the Parties in Bank to hear judgment if this protection shalve allowed or not for the Iudg of Nisi prius is no Iudg therof Also the Iudg in this case ought to have discharged the Iury it appears not here that he had done so therefore upon the whole matter it is a discontinuance but admitting that here was no discontinuance it seemeth that the plea was good and I agree that in all cases of Pleas issuable the plea ought to be expresly shewed or that which Tantamounts and here is shewed that which Tantamounts for when the Plantiffe in his Action had shewed the names of the Mannors and the Towns in which the acres lies then the Venue to try it for every parcel shall come de vicineto from all together and by consequence it is reasonable that the Venue for the trial of one particular to be parcel or not parcel shall come from all for if the plea in this case were that the Plantiff hath entred into the premises this had been good and then if it be good for the general it seemeth it should be good for every particular also it is clear that two may be parcel of all the three Mannors as in this case it is admitted to be parcel of all the premises by the demurrer if so c. Coventry the plea here is not good for the plea is to the writ and the conclusion ought to be pursuant to the premises of the plea or otherwise the plea is not good 36. H. 6. if a man plead to the writ and conclude to the Action it is evil 20. Eliz. Dyer 361. also the plea is not good because it is not shewed where the land lies wherein the entrie is alledged and therefore if the Plantiffe had denied it then is there no
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
judgement ought to be given for the Defendant for he laid that the Patent made to Hitchmore proveth that it was not made by reason of any suggestion of the partie for it is expressed to be made ex mero motu c. and then the not surrendring of the other Term doth not vitiate also if the lease be forfeited to the Queen for not repairing then the Queen should have a title before the lease made to the contractors under which the Plaintiffe claims and that not being found by office the contractors shall have no benefit thereof and as to the cases 9. H. 6. and Torringtons case cited Cook lib. 1. Altonwoods case the words of the Patent which express that the Patent should be good so that it be not ad nocumentum c. which is not in our case doth not prove the case in question also if the consideration be smal and recited as executed it doth vitiate the Patent although it be false and it is said in Sir Thomas Wrothes case in Plowden that it is not honourable for the King to construe his Patent to be void by colour of deceipt upon an inference except it be upon a manifest deceipt and in Barwicks case Cook lib. 5. the consideration was a surrender of all the estate and therefore it differed from the case in 18. Eliz. Dyer because there it was in consideration of an estate which in truth was never in being and the cases whereupon he relied for the proofe of this matter is the principal case of Altonwoods and the Lord Chandos case that if a violent intendment might be admitted in the Kings grants upon an inference it might be here inferred that the King should have the estate by this particular surrender but the Book is resolved that no such inference shall be admitted to avoid the Kings patent or otherwise but in that case of the Lord Chandos it appeared that the information of the partie was true and so it was not here because it was informed that all the right which Potter had is devolved to Hitchmore which is not so and therefore a difference between those two cases Nota that the course of this Court is that if A. be indebted or be an accomptant to the King and A. hath another debtor which debtor hath a third person indebted unto him in such case A. may by English Billin the Exchequer pray that the estate of the debtor of his debtor Pasch 9. Jac. in the Exchequer may be extended for the debt of the said A. and it shall be granted Clerk against Rutland IN 6. Jac. in Ejectione firme between Clerk and Rutland it appeared that a feme sole possessed of a Term of years assigns this to A. in trust and after entermarries with him in reversion and after the husband being in quiet possession he and his wife joyn in a Bargaine and sale to B. upon valueable consideration and after the wife dies and the assignee doth set on foot the lease and if this shall be void against the Bargainee was the question upon evidence and it seemeth not because the Bargainee claimeth nothing by conveyance from the wife and also this trust in the Term doth not belong to the husband after the death of the wife for Tanfield said that it was decreed in the Chancery and the opinion of the Iudges was in one Denies case if a feme sole assign a lease in trust and after taketh husband and dieth that the administrator of the wife should have this trust and that the Administration shall be granted for this Term although there be no other thing for which the Administration ought to be granted also it was touched in this case that if the father make a lease for fortie years to a stranger and continue in possession and after conveys the land to a younger son who for a valuable consideration conveyeth it over it was doubted if the purchasor should avoid this lease or not but it was said that if in that case the father after the making of such a lease had suffered the land to descend to his eldest son who had been privie to this trust that then the Purchasor of the eldest son should avoid this lease as it was ruled in Burwels case Cook lib. 6. Upon a motion made by Prideaux that Robert winter one of the Powder Traitors made a lease for years 1. Jac. to one Gower and that after 3. Jac. the Lessor was attainted of Treason by Parliament which attainder related to a time before the conveyance of the Fee and if in this case the Term be saved or lost it was the question Pasch 9 Jac. in the Exchequer Wickham against Wood Pasch 9. Jac. in the Exchequer EDward Wickham declared in an Ejectione firme that Skreen 17. April 6. Jac. at Framlingham in Suffolk demised to him 30. Acres of pasture to have for three years c. and upon the general issue pleaded the Iury found that Thomas Cooper and three others were seised of the lands in question and the fifth of February 24. H. 8. infeoffed by Indenture M. B. and five others to the uses and intents mentioned in a Schedul annexed and that was upon condition that if they aliened to any other uses or purposes that the Feoffor should re-enter and the Iury also found the Schedule which in effect was this viz. that the Feoffees and their heirs should take the profits and therewith finde an honest priest by them or the greater number of them to be hired and competently paid to say Mass for the soules of the Feoffor and his friends and that by the space of 99. years then ensuing and at the end of the said years the Feoffees their heirs and assigns who then should be seised should sell the lands and with the money finde a Priest to Chaunt for the soules aforesaid and with the said moneys or lands also to make further provision for a competent poor honest Priest for the timr being if then it could be by a Amortization or otherwise as they should think best for the sure and long continuance of the said honest Priest if so it could be continued by order of Law the Iury found all things executed accordingly and the finding of a Priest from the 24th of H. 8. untill the first of Ed. 6. by which Act the King was entituled prout lex postulat and that Queen Eliz. granted to Mildmay for 21. years upon whom Fuller the heir of the surviving Feoffee entred and made a Feofment to Wilbey and Skreen by force whereof they were seised and Mildmay re-entred and his Term expiring he obtained a new lease 43. Eliz. and made a lease to Wood and Skreen survived Wilbey and made a lease to Wickham who entred and being outed by Wood brought this Action Bromley puisne Baron upon all the matter I observe three things First if the Fee-simple in this case by the letter or meaning of the Statute be given to the Crown for the lease
above mentioned of a lease for years and also it was there said that if Tenant for life be the remainder to the King for years the remainder to another in Fee and the Tenant for life makes a Feofment in Fee this drawes the Kings remainder out of him and so he held that here is no gift Secondly that here is no imployment and so the Feofment is made good Altham second Baron contra I will consider only two points First if it be a gift for years or for ever and I say that it is a gift for ever for here is no intent in the Donor to determine the superstitious use because he doth not limit any other use to which it should revert but only that the Priest should be maintained for ever and as that which hath been said that it was not imployed he answereth that out of the Book of 22. Assises 52. where 12. d. is reserved for three years and after 100. s. seisin of 12. d. is seisin of the 100. s. because it is issuing out of the freehold as the case is in Littleton in the Chapter of Atturnement Tenant for life the remainder in Fee the Lord shall not avow upon the remainder but shall have it by way of Escheat for all the estates together are holden of the Lord but if land be given to finde a Priest in D. and one is maintained in S. this is a mis-imployment but in our case I conceive that the Feoffees have power to dispose the land as to them seems best and therefore it is uncertain and then given to the King as it was in Dales case land was given to the intent that a Priest should be maintained as I. S. and I. D. thought fit so that he had not less then 8. marks yearly the King shall have all for the Feoffees may give all to the Priest if they please and in Turners case land was devised to a Priest and divers poor men all is given to the King by the superstitious imployment and as to the words if by the Law it may be they are idle for id possumus quod de Jure possumus and therefore 9. Ed. 6. an office was given to one if he were able to exercise it these words are idle for the Law saith that he shall not have it if he be not able to execute it 30. Ed. 3.8 a gift to two and to the longer liver of them that the Survivor shall have it are idle words 10. H. 7. a Condition that c. and here it the condition had been until an Act of Parliament prohibit it they are Idle words for if land be given to I. S. and his heirs upon condition that if he die without heirs c. this is a void condition and Repugnant to Law Lastly I hold the feofment good by way of Admittance and that the livery takes effect notwithstanding the Queens interest 4. H. 6.19 the Kings Tenant for life is disseised he shall have an Assise and yet there is no intrusion upon the King 17. H. 7.6 the Kings Lessee makes a feofment the King enters and so he held that the judgement should he given for the Defendant Snig Baron argued much to the same intent that Bromley had done and that the Schedule is so circumspect that nothing is given after the 99. years and that a spirit of Divination forwarned him of the alteration and he agreed the Feofment to be good with this difference where the King is in possession actually and where the Reversion is in the King and the book of 2 H. 4.9 that none shall enter upon the Kings Farmor is to be understood of the Kings under Tenants and not of his Lessees Tanfield chief Baron said that neither by the intent of the Statute nor of the parties the fee is given to the Queen but it is apparant that during the 99. years the parties intent is in suspence for fear of alteration and that they would see the difference of the times and leave the disposing thereof to his Feoffees and if they had sold the land and with the money maintained a Priest as many stocks of money have used to do without doubt it had been forfeited to the King and not the land and it would be in vain to speak of an Amortization if it be for a stipendary Priest only for this would not be necessary to have a foundation incorporated and to make an Amortization for such a Priest and therefore it seems to him that there is no determination of his will after the 99. years but that all is left to the determination and disposition of the feoffees who then should be and after the intent of the Statute which was penned by Hales Iustice of the Common Pleas. I observe four words given appointed limited and assigned and I do not conceive that our case is within the compass of any of them for as I said before it is in suspence until the end of 99. years and the parties who should have the interest are not known untill the time come nor the estate setled until that time but if it had been conveyed to superstitious uses after it had been given to the Queen notwithstanding the conveyance had not been sufficient if he who did convey had power in respect of the abilitie of his person and the estate in him and therefore Pasch 22. Eliz. the case was this Sir William Say before the Statute of 32. H. 8. of Wills was seised of lands in fee not devisable and before the said Statute he devised it to finde a Priest and notwithstanding that the devise was not good yet it was adjudged that the land was given to the Queen by 1. Ed. 6. but if it were a feme covert or an infant who are disabled in Law or a Tenant in tail who is disabled in respect of his estate there it had not been given to the Queeen but in all cases there ought to be an assignment or otherwise nothing is given and there is a difference where one grants land to the intent with the profits thereof to finde a Priest there all the land is given to the Queen and where he grants a rent for the maintenance of a Priest for there the King shall have but the Rent and he said that the Case cited 5. Ed. 6. Benlos is good Law and as to that which hath been said That because the power of the Feoffees is uncertain it should be given to the Queen true it is where the power is uncertain to bestow the profits but if their power be certain it is otherwise and as to the imployment there is none because there is no gift but the imployment of the particular estate is an imployment of the Remainder and a small thing will make an imployment James case was of the Greyhound in Fleetstreet which was given to finde a Priest and the White Horse for the maintenance of another and the Feoffees of the White-horse maintained the Priest of the
false the Patent is void although it hath these words Ex certa scientia et mero motu and so is 18. Eliz. Dyer 352. where the Patent was ex certa scientia et mero motu c. but there Dyer held that this falsitie in the matter of Recital did avoid the Patent notwithstanding the words ex mero motu c. but he held it otherwise if it were in a consideration which is faise for at that time the point of falsitie in matter of consideration for 100 l. to be paid although it be much contraverted in our Books and it seems in what place soever of the patent it appears that the King is mis-informed deceived in any matter material or concerning his own estate in the thing to be granted that that will dictate the Patent and therefore 17. Eliz. the Queen seised of the Mannor of D. grants all her purpartie of the Mannor of D. if in this case a Common person had granted by such words the Mannor had passed but in the Queens case it will be a void grant because a thing which she intended to pass cannot pass in such plight as she conceived it viz. as a purpartie and 36. Eliz. the Queen granted all her portion of Tithes c. although she had a Parsonage there yet it doth not pâ—â—s for this manner of Appellation implies that the Queen was mis-informed and not well instructed of the thing to be granted and therefore void see Cook lib. 4. in Bozuns case Ex certa scientia et mero motu c. doth not help it also if the King recite that whereas he had such land by the attainder of I. S. where in truth he had it not by his attainder now although that he grants this land Ex certa scientia et mero motu yet this will not pass but if the King be not deceived in the point of intitling himself but in the deducing of his title that will not prejudice the Patent as if the King recite that whereas I. S. had land by descent from his father and he grants it to the King and the King doth re-grant the same to I. S. this grant is good notwithstanding that I. S. had it not by descent from his father see the Lord Lovels case in Plowden that if the King be deceived only in the point of mis-conveyance the Law will not avoid the Patent as if be grant to one and his heirs born at D. the last words are void and the grant is good Pasch 42. Eliz. it was agreed that if the King be Tenant for life or years and makes a lease for one and twenty years this lease is void to all intents against the King because it appears not in the grant what estate the King had and by that lease the King conceived that he had power by his estate to make an absolute lease whereas legally his lease ought to determine by his death so by implication it is manifest that the King was not well instructed of his estate 39. Eliz. the Queen leased for twenty one years to begin whensoever the land should fall in possession by the expiration of any former lease then in being if in that case there were no precedent lease then in being this lease will be void for these words implie that the Queen conceived her former lease to be in being and so impliedly she is deceived in her intent in like manner in the principal case the Queen was deceived in her intention for the recital is that all the estate which Potter had is come to the Queen by surrender and in truth all the estate is not come unto her in respect of a mean estate to Wilkinson c. as to the second point it seems the consideration being that he did assume to new build implies asmuch as if he had said he faithfully promised and then it is all one as if it had been for that that he shall build for it is a consideration executory and is of value and then the not performance thereof vitiates the Patent and the estate was as if it had been by a limitation to cease and these words that he did assume upon himself cannot be construed to any other intent but unto an executory consideration because the King hath no remedy by way of Action for the breach of this promise and it cannot be conceived that the Covenant is satisfied in giving securitie for it is observable that the Covenant is but the ordinary Covenant viz. to repair and keep repaired and so a Trivial reparation will satisfie that but it appears that the Queens intent was not to make the lease for such a petty consideration because the Lessee had undertaken at his own charges to new build the Mills but the express Covenant doth not binde him to the new building of them and in 6. Eliz. the like lease was made of the Mannor of Lidlescourt to Customer Smith and the lease was for that that he assumed that he at his costs would c. and he avoided his lease upon a former lease made to A. of the premises and in truth the lease formerly made to A. was meerly void upon the making of this lease though perad venture the condition may be good and the consideration performed but the Queen was not well instructed of her title also in this case the lease to Hitchmore is not determined by a condition as it hath been objected but it ceaseth and is determined by a limitation and this may well enough revest in the Queen without entrie or office because it was but a Term and such words purporting an executory consideration in the Queens case implies as much as if in case of a Common person it had been said expresly to cease upon an act not performed for in the Kings case the Law speaketh and if so then the lease for years is void and the Patentee may enter without office and all considerations executory in leases made by the King amount to a conditional limitation and then he who will have benefit by such a lease ought to aver the performance of the consideration as if a man declare upon a lease made unto him c. if I. S. should so long live he ought to aver his life in the Declaration because it determines by limitation at his death but otherwise it is upon a condition if a Parson make a lease for years the Lessee must aver the life of the Parson because by his death the lease ends by a limitation implied but otherwise it should if it were upon condition for the performance of that needs not be averred but that ought to be shewed on the other part and so it seemeth that as wel for the point of falsitie in the recital as also in the not performing of the consideration that the lease is void and the Plantiffe should have judgement which was entred accordingly Snig Baron was of opmion against all the other Barons and he held that