it is not known whether he be guilty or not and in Cuddingtons Case it was a general Pardon and that was the cause that the Action did lie for that it is not known whether he committed the Felony or not But they conceived that if it had been a particular Pardon that then in that case the Action would not have been maintainable For the procuring of a special Pardon doth presuppose and it is a strong presumption that the party is guilty of the offence Note it did not appear in the Case of Fines the principal Case whether the Pardon by which Dr. Spicer was pardoned were a general Pardon or whether it were a particular and special Pardon Pasch 21 Iacobi in the Kings Bench. 415. DAVER's Case IN Davers Case who was arraigned for the death of William Dutton Ley Chief Justice delivered it for Law That if two men voluntarily fight together and the one killeth the other if it be upon a sudden quarrel that the same is but Man-slaughter And if two men fight together and the one flieth as far as he can and he which flieth killeth him who doth pursue him the same is Se defendendo Also if one man assaulteth another upon the High-way and he who is assaulted killeth the other he shall forfeit neither life nor lands nor goods if he that killed the other fled so far as he could Quod nota Pasch 21 Jacobi â—n the Court of Wards 416. Sir EDWARD COKE's Case THis Case being of great consequence and concernment The Master of the Court of Wards was assisted by four of the Judges in the hearing and debating of it and after many Arguments at the Barr the said four Judges argued the same in Court viz. Dodderidge one of the Justices of the Kings Bench Tanfield Lord chief Baron of the Exchequer Hobart Lord Chief Justice of the Court of Common Pleas and Ley Lord Chief Justice of his Majesties Court of Kings Bench The Case in effect was this Queen Elizabeth by her Letters Patents did grant to Sir Christopher Hatton the Office of Remembrancer and Collector of the first Fruits for his life Habendum to him after the death or surrender of one Godfrey who held the said Office then in possession Sir Christopher Hatton being thus estated in the said Office in Reversion and being seised in Fee-simple of diverse Mannors Lands and Tenements did Covenant to stand seised of his said lands c. unto the use of himself for life and afterwards to the use of J. Hatton his son in tail and so to his other sons intail with the Remainder to the right heirs of J. Hatton in Fee with Proviso of Revocation at his pleasure during his life Godfrey the Officer in possession died and Sir Christopher Hatton became Officer and was possessed of the Office and afterwards he became indebted to the Queen by reason of his said Office And the Question in this great Case was Whether the Mannors and Lands which were so conveyed and setled by Sir Christopher Hatton might be extended for the said Debt due to the Queen by reason of the Proviso and Revocation in the said Conveyance of Assurance of the said Mannors and Lands the debt due to the Queen was assign'd over and the Lands extended and the Extent came to Sir Edward Coke and the heir of John Hatton sued in the Court of Wards to make void the Extent And it was agreed by the said four Justices and so it was afterwards decreed by Cranfield Master of the Court of Wards and the whole Court That the said Mannors and Lands were liable to the said Extent And Dodderidge Justice who argued first said that the Kings Majestie had sundry prerogatives for the Recovery of Debts and other Duties owing unto him First he had this prerogative ab origine legis That he might have the Lands the Goods and the Body of the Person his Debtor in Execution for his Debt But at the Common Law a common person a common person could not have taken the body of his debtor in execution for his debt but the same priviledg was given unto him by the Statute of 25. E. 3. cap. 17. At the Common Law he said that a common person Debtee might have had a Levari facias for the Recovery of his Debt by which Writ the Sheriffe was commanded Quod de terris Catallis ipsius the Debtor c. Levari faciat c. but in such Case the Debtee did not meddle with the Land but the Sheriffe did collect the Debt and pay the same over to the Debtor But by the Statute of West 2. cap 20. The Debtee might have an Elegit and so have the moyetie of the Lands of his Debtor in Execution for his Debt as it appeareth in C. 3. part 12. in Sir William Harberts Case Secondly He said That the King had another prerogative and that was to have his Debt paid before the Debt of any Subject as it appeareth 41. E. 3. Execution 38. and Pasc 3. Elizabeth Dyer 197. in the Lord Dacres and Lassels Case and in M. 3. E. 6. Dyer 67 Stringfellows Case For there the Sheriffe was amerced because the King ought to have his Debt first paid and ought to be preferred before a Subject vid. 328 Dyer There the words of the Writ of Priviledg shew that the King is to be preferred before other Creditors By the Statute of 33. H. 8. cap. 39. The Execution of the Subject shall be first served if his Judgment be before any Processe be awarded for the Kings debt In the Statute of 25. E. 3. Cap. 19. I find that by the Common Law the King might grant a Protection to his Debtor that no other might sue him before that the King was satisfied his debt See the Writ of Protection Register â— 81. B. the words of which are Et quia nolumus solutionem debitorum nostrorum caeteris omnibus prout ratione Perogativae nostrae totis temporibus retroactis usitatae c. But that grew such a Grievance to the Subject that the Statute of 25. E. 3. Cap. 19. was made And now by that Statute a common person may lawfully sue to Judgment but he cannot proceed to Execution and so the Kings Prerogative is saved unless the Plaintiffe who sueth will give security to pay first the Kings Debt For otherwise if the Paty doth take forth Execution upon his Judgment and doth levy the money the same money may be seized upon to satisfie the Kings Debt as appeareth in 45. E. 3. title Decies tantum 13. The third Prerogative which the King hath is That the King shall have the Debt of the Debtor to the Kings Debtor paid unto him v. 21 H. 7. 12. The Abbot of Ramseys Case The Prior of Ramsey was indebted to the King and another Prior was indebted to the Prior of Ramsey and then it was pleaded in Barr that he had paid the same Debt to the King and the Plea holden for a good Plea
thing and shall he be bound by a Conveyance Anno. 16. H. 6. then in the time of Civil War Uses began and of Lands in use the Lord Chief Baron Tanfield in his Argument hath cited diverse cases where the lands in use were subject and lyable to the debt of Cestuy que use in the Kings Case and so was it untill the Statute of 27. H. 8. of Uses was made Babbington an Officer in the Exchequer had lands in the hands of Feoffees upon Trust and a Writ issued out and the lands were extended for the Debt of Babbington in the hands of his Feoffees Sir Robert Dudley having lands in other mens hands upon Trusts the lands were seized into the Kings hands for a contempt and not for debt or damages to the King And in this Case although that the â—nquisition do find the Conveyance but have not found it to be with power of Revocation yet the Land being extended it is well extended untill the contrary doth appear and untill the extent be avoided by matter of Record viz. by Plea as the Lord Chief Baron hath said before Ley Chief Justice of the Kings Bench argued the same day and his Argument in effect did agree with the other Justices in all things and therefore I have forborne to report the same at length And it was adjudged That the Extent was good and the Land well decreed accordingly Pasch 21 Jacobi in the Exchequer Chamber 417. The Lord SHEFFIELD and RATCLIFF'S Case IN a Writ of Error brought to reverse a Judgment given in a Monstrans de Droit in the Court of Pleas The Case was put by Glanvile who argued for Ratcliffe the Defendant to be this 2 E. 2. Malew being seised of the Mannor of Mulgrave in Fee gave the same to A. Bigot in tail which by divers discents came to Sir Ralph Bigot in tail Who 10 Jannarii 6 H. 8. made a Feoffment unto the use of â—is last Will and thereby after his Debts paid declared the use unto his right heirs in Fee and 9. H. 8. dyed The Will was performed Francis Bigot entred being Tenant in tail and 21 H. 8. made a Feoffment unto the use of himself and Katherine his wife and to the use of the heirs of their two bodies Then came the Statute of 26 H. 8. cap. 13. by which Tenant in tail for Treason is to forfeit the Land which he hath in tail Then the Statute of 27 H. 8. of Uses is made Then 28 H. 8. Francis Bigot did commit Treason And 29 H. 8. he was attainted and executed for the same Anno 31 H. 8. a private Act of Parliament was made which did confirm the Attaindor of Francis Bigot and that he should forfeit unto the King word for word as the Statute of 26 H. 8. is saving to all strangers except the Offendor and his heirs c. 3 E. 6. The heir of Francis Bigot is restored in blood Katherine entred into the Mannor and dyed seised 8 Eliz. their Issue entred and married with Francis Ratcliffe and had Issue Roger Ratcliffe who is heri in tail unto Ralph Bigot And they continue possession untill 33. Eliz. And then all is found by Office and the Land seised upon for the Queen who granted the same unto the Lord Sheffield Francis Bigot and Dorothy die And Roger Ratcliffe sued a Monstrans de Droit to remove the Kings hands from off the lands and a Scire facias issued forth against the Lord Sheffield as one of the Terre-Tenants who pleaded all this special matter and Judgment was thereupon given in the Court of Pleas for Roger Ratcliffe And then the Lord Sheffield brought a Writ of Error in the Exchequer-Chamber to reverse the said Judgment And Finch Serjeant argued for the Lord Sheffield that the Judgment ought to be reversed And now this Term Glanvile argued for Roger Ratcliffe that the Judgment given in the Court of Pleas ought to be affirmed There are two points The first If there were a Right remaining in Francis Bigot and if the same were given unto the King by the Attaindor and the Statute of 31 H. 8. Second If a Monstrans de Droit be a proper Action upon this matter which depends upon a Remitter for if it be a Remitter then is the Action a proper Action The Feoffment by Ralph Bigot 6 H. 8. was a Discontinuance and he had a new use in himself to the use of his Will and then to the use of his Heirs Then 9 H. 8. Ralph Bigot dyed And then Francis Bigot had a right to bring a Formedon in the Discendor to recover his estate tail 21 H 8. then the point ariseth Francis Bigot having a right of Formedon and an use by force of the Statute of 1 R. 3. cap. 1. before the Statute of 27 H. 8. by the Feoffment he had so setled it that he could not commit a forfeiture of the estate tail When a man maketh a Feoffment every Right Action c. is given away in the Livery and Seisin because every one who giveth Livery giveth all Circumstances which belongs to it For a Livery is of that force that it excludes the Feoffor not only of all present Rights but of all future Rights and Tytles v. C. 1. par 111. and there good Cases put to this purpose 9 H. 7. 1. By Livery the Husband who was in hope to be Tenant by Courtesie is as if he were never sised 39 H. 6. 43. The Son disseiseth his Father and makes a Feoffment of the lands the Father dyeth the hope of the heir is given away by the Livery It was objected by Serjeant Finch 1. Where a man hath a right of action to recover land in Fee or an estate for life which may be conveyed to another there a Livery doth give away such a Right and shall there bind him But an estate in tail cannot be transferred to another by any manner of Conveyance and therefore cannot be bound by such a Livery given I answer It is no good Rule That that which doth not passe by Livery doth remain in the person which giveth the Livery 19 H. 6. Tenant in tail is attainted Office is found The estate tail is not in the King is not in the person attainted but is in abeyance So it is no good Rule which hath been put When Tenant in tail maketh a Feoffment Non habet jus in re neque ad rem If he have a Right then it is a Right of Entre or Action but he cannot enter nor have any action against his own Feoffment 19 H. 8. 7. Dyer If Discontinuee of Tenant in tail levieth a Fine with proclamations and the five years passe and afterward Tenant in tail dyeth his issue shall have other five years and shall be helped by the Statute for he is the first to whom the right doth accrue after the Fine levied for Tenant in tail himself after his Fine with Proclamations hath not any right But if Tenant in tail be
for him to do and demanded Judgement of the Action Upon which Cook did demur in Law and he took divers Exceptions to Herolds Plea 1. That hee hath pleaded a Custome and hath so pleaded it that no Issue can be taken upon it for he saith Quod Vsitatum est quod Admirallis pro tempore existens non potest concedere Officium praedict nisi pro termino vitae suae and doth not shew where the Court is holden and doth not say Quod â—alis habetur consuetudo in curia as he ought and as it is in 4. 5 Phil. Mar. Dyer 152. in an Assize brought of the same Office of Registership of the Admiralty for there he brought Assize de libero tenemento suo in Ratcliffe and alledged Quod per consuetudinem in curia Admiral à tempore c. And he said That the Court hath been used to be holden time out of mind c as well at Ratcliffe as elsewhere And if the place be not alledged then it cannot be known from what place the Visnâ— shall come See also that forme observed in the Book of Entries 75. b. So in an Assize of the Office of Philizer in the Common Pleas it was alledged where the Bench was viz. in Com' Midd ' as it is in my Lord Dyers Reports Also 2. he doth not say That Curia Admirallis is an ancient Court c. as he ought for in 22. H. 6. it is said That where a prescription is alledged and pleaded in a Court he ought to say That is is an ancient Court in qua habetur talis consuetudo c. for a Prescription cannot be in any Court if it be not an ancient Court The third matter was Because that in the Condition of the Bond it is said That they are seised of that Office to them for their lives eorum diutius viventi therefore he shall be estopped to say That it is good only for the life of the Admirall as in 18. E. 4. 4. He cannot speak against the Condition of the Bond although it be but a supposal or recital The fourth matter was Because he hath bound himself that the other should enjoy the same all his life without interruption although that the Office become void by Forfeiture or otherwise yet he cannot have it against his own Bond. And Cook said There is a Case in my Lord Dyers Reports where if the Lessor warrant the Estate of the Lessee if he be ousted by a stranger without Title he shall have no action of Covenant But if the Covenant be That he shall quietly enjoy it against him although that the Lease become void yet the Lessor shall not take advantage against him Clenche Justice If the Party occupy the Office by right or by wrong it is not materiall he is not to interrupt him against his owne Bond. Mich. 28 29. Eliz. in the Kings Bench. 60 AN Action of Debt was brought for an Amerciment in a Court Baron And the Plaintiffe declared That the Defendant was amerced at the Court Baron of the Farmor of the Manor of Cinkford and exception was taken because it might be that he was amerced at another Court of the Farmor and therefore he ought to have said At the Court Baron of the Manor and not at the Court of the Farmor of the Manor Another Exception was That hee said That at such a Court holden before the Steward there he was amerced Whereas in truth the Court Baron is holden before the Suitors because they are the Judges and not the Steward and for that was vouched 4. H. 6. and Fitz Nat. in the Writ of Moderata Misericordia Suit Justice True it is that the Suitors are Judges in Real Causes not in Personal Another Exception was taken That he doth not shew That he had requested or demanded the Amercement But to that it was answered That Licet sepius requisitas was in the Declaration and that is sufficient because it was a Duty before the Request but if it first begin upon the Request to be a Duty then it ought to be alledged In facto that there was a Request Another Exception was That no Custome was alledged that they might amerce for it is not incident of common right unto a Court Baron â—or to amerce but to distrain or seise therefore Custome ought to warrant it The Case was adjourned Mich. 28 29. Eliz. in the Kings Bench. 61. AN Action of Debt was brought upon a Concessit Solvera according to the Law Merchant and the custome of the City of Bristow and Exception was taken because the Plaintiff did not make mention in the Declaration of the custome But because in the end of his Plea he said Protestandâ— se sâ—qui querelam secundùm consuetudinem civitatis Bristow the same was awarded to be good and the Exception disallowed Mich. 28 29. Eliz. in the King 's Bench. 62. SVit Justice said That if the custome of a Manor be That the Homage might make By-Lawes it shall bind the Tenants as well Free-holders as Copy-holders But Tanfiâ—ld of Councell in the Case said That it is no good nor reasonable custome But such By-Lawes may be made by the greater number of the Tenants otherwise they shall not bind them Mich. 28 29. Eliz. in the King 's Bench. 63 The Vicar of Pancras Case THE Vicar of Pancras sued one in the Spirituall Court for Tithes And he pleaded That some of them for which the Vicar did sue did belong to the Parson and that he had paid them to the Parson and prayed a Prohibition Cook He shall not have a Prohibition for by this Plea he hath put in Debate the controversie of the Tithes betwixt the Parson and Vicar and then when both are Spiritual Persons the common Law shall not hold Plea of them as is 35. H. 6. 39. and 31. H 6. Also by this Plea a Modus decimandi is not in question but the right of the Tithes and that doth appertain to the common Law And there Cook said That is holden in 11. H. 7. That Unions and Endowments of Vicarages do appertain to the Spirituall Law Also the prescription of the Defendant was That he had used time out of mind c. to have for horses a giâ—tment her bage 3.d. ob q. and after that they had used to pay for every Cow to the Vicar 4.d. and for the Calfe and Milk of every Cow 6.d. And Cook took exception that such prescription was double and repugnant in it self for he prescribes that he paies for herbage and then he prescribes That he paies for every Cow 4d. which cannot be meant but for herbage of the Cow for it is not for Milk or Calfe of the Cow for he prescribes to pay for them 6.d. He took another Exception That he prescribes that he hath used to pay but doth not shew that he hath paid for so he ought to do for otherwise he shall out the Spirituall Court of Jurisdiction and yet not give
to the extinguishment of the Bond by the release of all Actions But the Court conceived That the Arbibitrament did consist of two matters which were distinct and might be severed For although that the Arbitrament be void as to one matter yet it shall stand good and shall be a good Arbitrament for the other matter And Foster Justice said That in that case the Award to make the Release might be severed viz. That it should be good for all Actions except the Bond. Cook contrary And said That it is so entire that it cannot be divided But the Court conceived That the Arbitrament was good as to the Bond to be made by the Defendant although it were void as to the Arbitrator At another day Dodderidge said That the Plaintiffe had not alledged any Breach of the Arbitrament for he hath put it That the Defendant and the Arbitrator had not entred into the Bond and although they two joyntly had not entred into the Bond yet it might be that the Defendant alone had entred into the Bond and it needed not that the Arbitrator enter the Bond for as to him the Arbitrament was void And that Exception was allowed as a good Exception by the whole Court. For they said That the Plaintiffe ought for to shew and alledge a breach according to the Book of L. 5. E. 4. 108. And they said That although it be after verdict yet it is not remedied by the Statute Pasch 8. Jacobi in the Common Pleas. 231 FOLIAMBES Case IN a Writ of Dower brought by the Lady Foliambe It was agreed by the whole Court That if the Husband maketh a Lease for years rendring rent and dieth the wife shall recover her Dower and shall have present Execution of the Land and thereby she shall have the third part of the Reversion and of the Rent and execution shall not cease And all the Justices said That the Sheriffe should serve execution of the Land as if there were not any Lease for years for it may be that the Lease for years is void And although it be shewed in pleading that there is a Lease for years the wife cannot answer to it and it may be there is not any Lease and therefore the Execution shall be generall And he who claimes the Lease for years may re-enter into the Land notwithstanding the Recovery and the Execution of the Dower And if he be ousted he shall have his Action Nichols Serjeant who was of Councell against the Demandant said That he would agree that the Case in Perkins 67. was not Law But the Justices said That there is a difference betwixt the Case of Perkins and this Case for in the Case in Perkins the Husband had but an estate in Remainder so as no rent or attendancy was due so as the wife during that Term could not have any benefit Also in this case it was agreed by the Court That after judgement for part the Demandant might be Non-suit for the residue and yet have execution of that part for which he had judgment Pasch 8. Jacobi in the Common Pleas. 232 RAPLEY and CHAPLEIN's Case IT was ruled by the whole Court That if a Custome be alledged That the eldest daughter shall solely inherit that the eldest sister shall not inherit by force of that Custome So if the Custome be That the eldest daughter and the eldest sister shall inherit the eldest Aunt shall not inherit by that Custome And so if the Custome be that the youngest son shall inherit the youngest brother shall not inherit by the Custome And Foster Justice said That so it was adjudged in one Denton's Case Pasch 8. Jacobi in the Common Pleas. 233 SEAMAN's Case BArker Serjeant prayed the opinion of the Court in this Case Lessee for an hundred years made a Lease for forty years to Thomas Seaman if he should live so long and afterwards he leased the same to John his son Habendum after the Term of Thomas for 23. years to be accounted from the date of these presents The Question is If the Lease to John shall be said to begin presently or after the Term of Thomas And the Justices were cleer of opinion That the Lease to John shall not be accounted from the time of the date but from the end of the Term of Thomas because that when by the first words of the Limitation it is a good Lease to begin after the Term of Thomas it shall not be made void by any subsequent words And Cook Chiefe Justice said That this is no new reason for there is the same reason given in 2. E. 2. Grants And he put the Case in Dyer 9. Eliz. 261. and said That if the Limitation be not certain when the Term shall begin it shall be taken most beneficiall for the Lessee Pasch 8. Jacobi in the Common Pleas. 234 WARD and POOL's Case AN Action upon the Case was brought for speaking these words Thou mayest well be richer then I am for thou hast coined thirty Shillings in a day thou art a Coiner of money c. I will justifie it It was moved in arrest of Judgment That the words were not Actionable because he might have a good Authority to coine Money for men who work in the Mint are said to coine Money and are called Coiners of Money And so it was adjudged Quod Querens nihil capiat per Billam Pasch 8. Jacobi in the Common Pleas. 235 CHALK and PETER's Case CHalk brought a Replevin against Peter the Defendant did avow the taking as Bailiff of Sir Francis Barrington in sixteen Acres of wood in Hatfield Chase and shewed that an Arbitrament was made by the Lord Burghley late Lord Treasurer betwixt the Lord Rich and the Ancestors of Sir Francis by which it was awarded That the said Ancestors of the said Sir Francis Barrington and his Heirs should have the herbage of a certain number of Acres within the said Chase and also that he should have to him and his Heirs the Trees and Bushes of the said number of Acres within the said Chase and that he might fell and cut sixteen Acres every year of the said Acres and that he should enclose them according to the Laws and Statutes of the Realm and that Assurance was made by the Lord Rich accordingly and that the same was confirmed by a speciall Act of Parliament with a saving of the right and interest of all strangers and said That Sir Francis Barrington did inclose and cut down sixteen Acres and did enclose the same and there took the Defendants cattel Damage feasants upon which the Defendant did demurr in Law The Question in the case was If by the Statute of 22. E. 4. cap. 7. or the Statute of 35. H. 8. câ—p 17. which give Authority to make inclosures of Woods the Commoner shall be excluded Harris Serjeant I conceive That the Commoner shall be excluded by the Statute of 22. E. 4. cap. 7. which gives Authority to inclose and exclude all Beasts and
puisne or the lesser Debt and although the Debtor be able and sufficient to pay both Debts viz. the Kings Debt and the Debt owing to the Subject yet the Kings Debt is to be first paid Now to apply these cases to the Case in question Here is a Subject who is indebted to the King And I say That the Lands which such a Debtor hath in his power and dispose although he hath not any Estate in the Lands shall be liable to pay the Debt to the King And I say That Sir Christopher Hatton had a Fee in the Mannors and Lands in this case And although he did convey them bona fide yet untill his death by reason of the Proviso of Revocation they were extendable Trin. 24. E. 3. Rot. 4. Walter de Chirton Customer who was indebted to the King for the Customs purchased Lands with the Kings monies and caused the Feoffor of the Lands to enfeoffe certain of his friends with an intent to defraud and deceive the King and notwithstanding he himself took the profits of the Lands to his own use And those Lands upon an Inquisition were found and the values of them and retorned into the Exchequer and there by Judgment given by the Court the Lands were seized into the Kings hands to remain there untill he was satisfied the Debt due unto him And yet the Estate of the Lands was never in him But because he had a power viz. by Subpena in Chancery to compell his Friends to settle the Estate of the Lands upon him therefore they were chargeable to the Debt You will say perhaps there was Covin in that Case But I say that neither Fraud Covin nor Collusion is mentioned in the Report in Dyer 160. C. 11. par 92. And that Case was a harder Case then our Case is For Walter de Chirton in that Case was never seised of the said lands But in our Case Sir Christopher Hatton himself had the lands And when he had the lands he was assured of the Office although he had not the possession of it For he was sure that no other could have it from him and no other could have it but himself And for another cause our Case is a stronger Case then the Case of Walter de Chirton For Chirton had no remedy in Law to have the lands but his remedy was only in a Court of Equity and a remedy in Consc ' onely But in our Case Sir Christopher Hatton had a time in which he might let the land to passe and yet he had a power to pull it back again at his pleasure So as he had the disposition of it but before the alteration of the uses he dyed And if he had been living being indebted to the King the King might have extended the lands because that then he had the possession of them There were two Considerations which moved Sir Christopher Hatton to Convey the Lands the first was honorable viz. For the payment of his Debts the second was natural viz. For the preferment of his Children Although the Conveyance of the Lands for payment of his Debts was but for years yet the same was too short like unto a Plaister which is too short for the sore For the Covenanters were not his Executors and so they were not liable to Debts And although he be now dead and cannot revoke the former uses yet he had the power to revoke the uses during his life And so he was chargeable for the Debt due to the King Tanfield Chief Baron agreed with Justice Dodderidge in all as before And he said That all powerful and speedy courses are given unto the King for the getting in of his Revenues and therefore he said he had the said Prerogatives as have been recited And in 25 E. 3. in libro rubro in the Exchequer there the Foundations of the said Prerogatives do appear If a common person arrest the body in Execution he shall not resort to the lands contr to Blumfields Case C. 5. par The course of the Exchequer makes a Law every where for the King If any Officer be indebted unto the King and dyeth the course of the Exchequer is For to call in his Executors or the Heir or the Terre-Tenants to answer the Debt and if he hath no lands then a Writ issueth out of the Exchequer to know what goods he had and to whose hands they be come All Inquisitions concerning Lands in the like Cases are Habuit vel seisitus and not that he was seised onely The word Habuit is a large word and in it is contained a disposing power But in this Case Sir Christopher Hatton had a power every day to revoke the uses And when he had once revoked them then was he again as before seisitus 7 H. 6. in the Exchequer the Kings Farmor had Feoffees to his use and dyed indebted to the King And upon an Inquisition it was found that Habuit for he had them in his power by compelling his Feoffees by Equity in Chancery and therefore it was adjudged that the King should have the Lands in the Feoffees hands in extent But in this case Sir Christopher Hatton might have had the Lands in him again without compulsion by a Court of Equity for that he had power to revoke the uses in the Conveyance at his pleasure Mich. 30. H. 6. rot in the Exchequer A Clark of the Court was assigned to receive monies for the King who had Feoffees of lands to his use And the lands were found and seised for the Kings monies by force of the word Habuit 32 H. 6. Philip Butler's Case who was Sheriffe of a County being indebted to the King his Feoffees were chargeable to the Kings debt by force of the word Habuit For habuit the lands in his power 6 E. 4. Bowes Case acc ' 34 H. 6. A widow being indebted to the King her Feoffees were chargeable to pay the Kings debt because she had power of the lands It being found by Inquisition that habuit 1 R. 3. the like Case And 24 Eliz. in Morgan's Case it was adjudged That lands purchased in the names of his Friends for his use were extended for a debt due by him to the King Hobart Lord Chief Justice of the Common Pleas argued to the same purpose and agreed with the other Justices and he said in this case it was not material whether the Inquisition find the Deed to be with power of Revocation For he said that the Land is extended and that the extent remains good untill it be avoided And he said that a revocable Conveyance is sufficient to bind the Parties themselves but not to bind the King but the Lands are lyable into whose hands soever they come When a man is said to forfeit his body it is not to be intended his life but the freedom of his body Imprisonment At the Common Law a Common person could neither take the bodie nor the Lands in Execution But yet at the Common Law
was not found and so the King was not entitled to rights and priviledges and by consequence so was not his Pattentee 2. It did not appear that the Councel of Lateran 15 Johannis did extend to these Orders which was said to have been created 17 E. 3. whereas indeed it was created in the time of Henry the 1. Regularly this priviledge is not transferrable for it is ratione Ordinis As when the King makes a Duke and gives to him possessions those possessions annexed to the Dukedom are not transferrable over but by special Act of Parliament 35 H. 6. 36. Moile There if there had been special words in the Act of Parliament it had been Frankalmoigne This Priviledge is transferred to the King by the Act of 32 H. 8. and that Statute requires no aid of Regular or Ecclesiastical persons Secondly the words are special And all other things of theirs This Case opposeth not the Bishop of Canterbury's Case C. 3 part For that refers to the Statute of 1 E. 6. which had not so large words The intent of an Act shall be taken largely and beneficially to inlarge the Kings possessions as the grants of the King shall be taken largely and beneficially for the King There is a difference betwixt this Statute of 32 H. 8. and the Statute of 27 H. 8. The copulative words of the Statute of 27 H. 8. are To have all Rights and Interests and Hereditaments C. 11. part 13. pro omnibus demandis c. there the demand shall extend to Temporal demand so All rights and Interest and Inheritance shall be construed All temporal rights c. But the Statute of 32 H. 8. is larger viz. Of what name and nature soever If by the words of the Statute of 31 H. 8. Priviledges Tythes had been given to the King without especial provision after made then what needed the special Clause after was the Objection which hath been made I answer The special Clause was necessary For in pleading otherwise he ought to have shewed what Priviledge and Discharge it was in particular and so the Clause was added for the case of pleading C. 9. part The Abbot of Strata Mercellos case there it is said That if a man plead to have such priviledges as such a one had he ought to shew in particular what those priviledges were But this provision in the Statute of 31 H. 8. was made for the benefit of pleading The Statute of 17 E. 2. which gave the Tythes to the Hospitalers give them by the word of Priviledges for they had their possessions as it were by a new purchase Cook Entries 450. there the Case much differs from this so then the general word Priviledges doth extend to Tythes 14 H. 8. 2. By a grant of All trees Apple-trees will not pass yet if it be of all trees cujuscunque generis naturae nominis aut qualitatis then they will pass C. 3. part 81. By grant of all goods Apparel will not pass Here are special words in the Statute cujuscunque naturae nominis c. Nominla sunt symboa rerum And then call them what you will they are given to the King and intended to be transferred to the King and so there needs no special provision for the discharge of the Tythes For to say that the Priory was of the Order of the Cistertians is sufficient Admit then that the King shall have the Tythes as I have argued he shall then his Pattentee shall have them It is a real discharge in the King and not a discharge in respect of his person only Priviledges of discharge may be transferred as well as Priviledges of profit Then the question further is Whether they of S. Johns of Jerusalem were Ecclesiastical They were Regular as appeareth by the Statute of 32 H. 8. for that saith that they shall be free from Obedience Trin. 8. Jacobi in the Common-Pleas Bowyers case Whore Cook Nichols Warburton and Winch did agree that they were Ecclesiastical Priests The Prior had Parsonages and none could have Parsonages but Ecclesiastical persons 3 E. 3. 11. They had Appropriations which could not be unto Lay-men 22 E. 4. 42. There a Writ of Annuity was brought against the Prior of S. Johns of Jerusalem and it was ruled there that he ought to be named Parson which proves that he was Ecclesiastical 26 H. 8. cap. 2. there it is said That he shall pay First-fruits as other Parsons which proves that he was Parson 42 E. 3. 22. there they are called Ecclesiastical 35 H. 6. 56. they were seised in the right of the Church Linwood lib. cap. 47. de Judiciis That they were Ecclesiastical It was objected that Knight-hood cannot be given to Ecclesiastical persons and they were Knights Popham once Chief Justice of this Court said That he had seen a Commission directed unto a Bishop to Knight all the Parsons within his Diocese and that was the cause that they were called Sir John Sir Thomas and so they continued to be called untill the Reign of Queen Elizabeth Jones and Dodderidge Justices They were Ecclesiastical persons although they were divided from the jurisdiction of the Bishop The Case was adjourned to be further argued Pasch 3 Caroli in the Kings Bench. 479. LANGLEY and STOTE's Case IN an Ejectione firme the Plaintiff declared of an Ejectment 26 Martii 23 Jacobi contra pacem dicti Domini Regis nunc which could not be because King James dyed the 27 of March and so it was not contra pacem Caroli Regis 8 H. 4. 21. An Appeal of Maheim was brought and the Plaintiff declared That he meyhemed in the time of the King that now is and the Writ did suppose the same to be in the time of King R. 2. And for that cause it was adjudged Quod nihil capiat per Breve Pasch 3 Caroli in the Kings Bench. 480. MUTLE and DOE's Case DEbt was brought upon a Bond aud the Plaintiff in his Declaration doth not say hic in Curio prolat It was holden by the Court That although it be in the election of the Defendant to demand Oyer of it yet the Plaintiff ought to shew it The Judgment also was entred Concessum est whereas it ought to have been Ideo consideratum est And for these causes the Judgment was reversed So was it adjudged also the same Term in this Court in Barret and Wheeler's Case Pasch 3 Caroli in the Kings Bench. 481. Serjeant HOSKIN's Case HE was Indicted for nor paving of the Kings high-way in the County of Middlesex in S. Johns street ante tenementaâ— sua And in the Indictment it was not shewed How he came chargeable to pay the same Nor was it shewed that he was seised of any house there nor that he dwelt there nor was it averred that he had any Tenement there The opinion of the Court was that the Indictment was incertain for it might be that his Lessee dwelt in the house and so the Lessee ought to have repaired it and