Decree made in the Chancery by sub Poena the party may have a writ of error in the Parliament to recover the same if it be erroneous in such sort as he may have to reverse Judgements erroneously given in the Kings Bench per Chock Serjeant 37 H. 6. 3. Iurisd. 53. error 95. But note that Brook abridgeth the case that Prisot the chief Justice was of the contrary opinion which is not to be so collected by the book but by implication yet may it seem that no writ of error doth lie but a petition to the Parlament in the nature of a writ of error but Prisot said that Judgements in the Chancery upon scire facias to repeal Parents and pleas or persons priviledged are reversable by Parlament because they are Judgements but the decrees are not 2. Cholmly Serjeant said if a decree be made in the Chancery that the Chancellor hath not power to reverse that decree in the same Court but it must be redressed in the Parlament for Judgement given in the Kings Bench Common-place or Exchequer are not reversable in the same Court but in a higher Court But Knightley Serjeant said that a decree was but an Order taken by the Court for the time the which upon good causes shewed may be redressed in the same Court hut Devistall Serjeant said that if it might be so there would be an incessant confusion of all causes wherefore the Chancellor cannot reverse an absolute Decree but he may reverse a Decree which is made with a quousque for an absolute decree is much like a definitive sentence given in the spiritual Court which cannot be redressed in the same Court but by application into a higher Court and the Kings Secretary interrupted him to speak any further of the authority of the Chancery In Cancell 27 H. 8. 6. In a writ of error to reverse a Judgement of petition in Chancery the Defendant took exception that the Judgement given in the Chancery might not be reve sed in the Chancery being all one Court but in the Parlament Et non allocatur exception per Cur Cancell 42. asss. p. 22. b error 131. It seemeth that this was not properly a reversall of the petition but rather and is like to the case ensuing I the Lord Chancellor grant a patent of land and after make a patent to another of the same land the second patent is revocable in the Chancery by scire facias but not by writ of error for a Court may reform but not reverse their own Judgements 2 R 3. A statute Merchant was acknowledged in the Chancery the money payable Anno 16. and the party sued execution and his writ supposed the same to be payable Anno 14. and by this sute the Feoffee was put out of power and he sued a writ of error in the Kings Bench and it was awarded that he should be received to the sute 18 E. 3. 25. error p. 17. asss. p. 24. And Plowden reciting the case saith that if upon sutes in the Chancery according to the order of the common Law there be error that shall be reformed by a writ of error in the Kings Bench which is a higher Court 13 El. Com. 393. The Second Part of the Absolute Power CHAP. I. Of Lands IF two Copartners bring a Formidon and one of them by Covin between the Tenant and him will not joyn with the other in a true Declaration the other may compell her by such poeâ—a to joyn in the true Declaration for else the Action would abate per Mâ—â—le Iustice Ienâ—ey Serjeant in Co. Ba 6 E. 4. 10. b. consâ— 12. 2. If two men have a wood jointly and one of them felleth the wood and keepeth all the money to himself his fâ—llow hath â—o remedy by the Law for as when they took the wood joyntly they put each other in trust and were contented to occupy together so the Laâ— suffereth them to order the profitâ— thereof according to the trust that each did put in other and yet if one took all the profits he is bound in conscience to restore the half to his fellow for as the Law giveth him right onely to half the land so it giveth him right onely in conscience to the half profits and yet it cannot be said that the law is against conscience for the Law willeth not that one shall take all the profits but leaveth it to their conscience Lib. Doct Stud. cap. 19. 3. In many cases conscience shall be ruled after the Law as the eldest son shall have his fathers land by conscience as he shall in law and so he shall in law and so in Burgh English the youngest son shall enjoy the land both in law and conscience and in Gravel-kinde all the sons and daughters shall inherit together and there can be no other reason gives why it should be so in conscience but because law or custome is so lib. Doct. Stud. 2. c. 15. for divers good causes upon that ground 4. Tho. Parrick and Agnes his wife exhibited a bill conteining that one Beatrice whose heir Agnes is was seized and took to husband Thomas Bradley present in the Court and dyed Bradley continued as Tenant by the curtesie of England untill now of late he claimeth and publisheth that he hath fee-simple and withheld the Charters wherefore they prayed that he might he examined what estate he claimeth and to be recorded and to knowledge what Charters he hath to deliver them to the complainants defendant Dâ—smissum est à curia quietus sine die per consi cur co qd materia in hac supplicatione contenta non est sufficiens ad pâ—nendum ipsâ—m defend ad examinat super â—undem petition Pet. in Canc. 20 H. 6. the defendant hath authority by law to keep the Charters and although in words he claimeth fee-simple yet because it is not alleadged that he did not any act to the dis-inheritance of the complainants therefore it seemeth he was dismissed CHAP. II. Of Lands in use or trust LAnds in Lond. were devised to the devisors son and three others in fee and that one of them should have the profits during his life the devisor dyed the son and heir sued a sub p against the two others to compell them to release unto him because the use of the land ought to be in him after the death of the per â—or and it was thought reasonable per omnes Justic. in camera Scac. 3 H. 6. devise 22. 8 feofment al uses 49. So it is if the same had been done by Feofment 2. Onâ—â—made a Feofment upon confidence and afterwards declared his will to the Feoffee that one of the daughters should have the land after his decease and after that he came to the Feoffee and told him that his said daughter would not be
is punishable by sub poena as well as the Feoffee 11 E. 4. 8. sub poena 13. consc. 17. 28 A sub poena was sued against two sons and heirs of gavel land to compell them to make an Estate of the land of which the Complaintiff had infecffed their father and others to his use of whom their father was the Survivor the Defendant said that the common voice of the Country is that the Feofment was to the use of the Complaintiff and of his VVife and of the Heirs of their two Bodies begotten who have Issue therefore they prayed a VVrit to warn the Issue and upon the VVrit the issued appeared and shewed that he was under age and prayed that the matter might stay untill he came to age and the Chancellour by the advice of Laicon and Littleton Iustices awarded that the matter should not stay because he was not seized of the Land by a Discent wherefore the Issue by his next Cousin declared his Title 14 E. 4. Age 20. 30 Note that a sub poena doth lie against the Heir of the surviving Feoffees 14 E. 4. Sub. 14. 31 A sub poena was brought against three Feoffees upon trust to compell them to execute an Estate to the Complaintiff one of them said that the Complaintiff made a Feofment to the other two in his absence to the behoof of all three and he died never agreed to the Feofment and the Land is holden of him so that he cannot execute an Estate but that he shall extinguish his own Seigniority and therefore he disclaimed in the Land and it was allowed to be a good answer per curiam Cancellarii 16 E. 44. sub poena 18. 32 If I and another do submit our selves to an award and it is awarded that I shall cause my Feoffees in trust to release to the other being in possession I may compell my Feoffees by sub poena to fulfill the award per omner Iustic. in communi banco 17 E. 4. 4. 33 A VVoman made a Feofment upon confidence and afterwards took a Husband and in her Death-bed she made Testament that her Feoffees should make an Estate to her Husband and to his Heirs the VVoman died and the Husband sued a sub poena to compell the Feoffees to perform her Testament and it was ruled that the Testament was void and that the Feoffees were not compellable to perform the same for Law and Conscience do allow nothing to be good which is done by VVoman Covert concerning her Inheritance except it be by Fine leavied where she is openly examined in the Court for this Testament would be a Disinheritance inheritance to her Heir but she may make her Testamet of Goods and make Executions by consent of her Husband per Cancell omnes Justic. uno tantum excepto And Vavasor shewed to the Court that Anno 7 E. 4. a VVoman Covert having Feoffees upon trust she and her Husâ—and sold the Land and she received the money and afterwards the Husband died and she sued a sub poena and it was adjudged to be a good sute 18 E. 4. 118. consc. 28. b. Testament 13. 34 The custome of Kent is that an Infant of fifteen years may sell his Land and the case was that an Infant made Feoffees upon trust and afterwards being above fifteen years old he willed the Feoffeâ—s to make an Estate thereof to him and his VVife in tail and the question was whether they were compellable by sub poena to do it or no and it was holden that the Feoffees were not compellable because the Infant cannot will his Land by the custome for the custome is onely of Sale and is always to be construed strictly according to the very words also at the Common Law such a VVill made by the Infant of Lands is void and so it is in conscience per Littleton Jenney omnes socios Justic. 21 E. 4. b. Testament 17. 35 Note in Burgh English land where the youngest shall inherit if the Father make a Feofment upon trust the youngest son shall have the use and the sub poena and so it is of Gavel-kinde land where all the Brothers do inherit per Dig. App. 21 E. 4. 24. b. Testament 17. 36 Hussey chief Justice of England said that when he came first to the Court which was about thirty years past it was holden by all the Court that if one infeoffed another of trust which died seized so that his Heir were in by Discent no sub poena should lie against the Heir for the same reason a sub poena might be against the Heir after two Discents which were inconvenient but the Chancellor said that there are Presidents in the Chancery that a sub poena doth lie against the Heir in Cam. Scacc. 22 E. 4. 6. b. consc. 23. 37 If a ftoffee upon confidence make a feofment to one that hath knowledge of the confidence the feoffer shall be restored again in the Chancery otherwise it is if the purchasor had no knowledge of the confidence per Cancel 7 H. 7. 12. sub poena 18. 38 The Feoffees upon trust of an Infant may grant all ordinary Offices for term of life as Steward Bailiff and Receiver and they shall have allowance thereof in their Accounts when they are called to account in the Chancery but they cannot grant any fees for term of life without the assent of the Heir when he is of full age per Hussey Brian cap. Just Ang. But Keble Serjeant said that if the Feoffor were able and willing to be Bailiff or Receiver himself or if that there were need of any Steward Bailiff or Receiver then he might repeal the Grants by sub poena also it was agreed that the feoffees might defend the Land in all sutes with the profits thereof and should have allowance thereof in Counsel 8 H. 7. b. Ftofments al uses 12. 39 Note it was adjudged that a VVoman Covert Executrix might make sale of her lands to her Husband and that it is a good Bargain and the feoffees upon trust are bound to make a feofment accordingly and in this case because three feoffees did the contrary they were committed to the Fleet 10 H. 7. 20. This is to be understood where the Land was devised to the Woman being Executrix to the intent to be sold for the performance of the VVill of the Testator 40 Certain feoffees were seized to the case of Sir Richard Rooe for life and afterwards to the use of others and the feoffees made a feofment in fee to Sir Richard Rooe the question was whether Sir Richard Rooe had forfeited his Estate or no and Hussey and Brian chief Justices agreed that it was no forfeiture by the common Law for no mans Reversion is discontinued continued thereby otherwise it is if Tenant for life of land had made a feofment to a
7. b. traverse d' Office 39. b. jurisd. 76. 4. A Subpoena was sued against T. Tate and before answer Tate exhibited a Bill against the Complaintiff to have an estate in the same land and because his Bill came in last he was forced to put in his answer to the first Bill and so they were at issue And afterwards it was shewed to the Court that Tates Bil did vary from his own answer in two points which were the ground of the matter And it was holden by the Chancellor by the advice of the Kings Serjeants that the answer should stand and it was notwithstanding the Bill and it was objected that if the matter were fond for Tate then he should recover upon his Bill but now he cannot doe so because his answer is directly contrary Whereunto the Kings Serjeants answered That Tate might be suffered to amend his Bill according to his answer because he was sworne upon his answer but not upon his Bill quod nota 14. E. 4. subp. 15. 5. A Bill was abâ—â—red for insufficiency of matter and the Complaintiffe shewed new matter and the Defendant was awarded to answer to it per Cur. cancellar. 16. E 4. 6. If a sub poena be sued against 4. Executors and one of them doth onely appear he shall not be forced to answer without his Companions but Markeham Capit. Iustic. Angl. But Rogers Apprentice said that he might answer alone if he would without his Companions but shall not be compelled thereunto 8. E. 4. 5. Brooke Conâ—c 15. CHAP. VIII What Costs and Damages shall be awarded in the Chancery 1 NOte that where a Woman is onely endowed by reason that her first Dower was recovered from her she shall recover no damages for damages are not awarded in the Chancery per Cur. cancellar. in praesen Iust. 43. Asss. p. 32. 43 E. 3. 2. Damages 195. B. sc. sa. 161 W. Fishlack exhibited a Petition to the King against the Prior of Windham that his ship sailing to Lon. was assaulted by Enemies of France that he his Mariners for fear fled to the land by boae by Hapsburgh in Norsolk and the ship being spoiled by them was cast up at Hapsburgh in the Priors land who seised the same as wreck The King delivered the Peâ—it by writ to the Admiral willing him to do justice who proceeding therein upon sute of the Prior made to the King was commanded to certifie his proceedings before the King and his Councel and to warn the parties to appear at a day certain in the Chancery where upon hearing it seemed to the Justices and Kings Serjeants and other Lawyers being there that the ship goods and chattels ought not to be accounted wreck and Judgement was given that William Fishlack should be restored thereunto and to his damages costs and expences which he had sustained by the Priors default in the prosecuting and that he should satisfie the Prior and his servants for their reasonable costs imployed in saving the shâ—p and goods Clauss An. 5 R. 2. R. 6. pro W. Fishlack de Bacton It was enacted Anno 17 R. 2. that where people be compelled to come before the Kings Councel or in the Chancery by writs granted upon untrue suggestions the Chancellor after that such suggestions be found and proved untrue shall have power to ordain and award damages after his discretion to him which shall so unduly be troubled Stat. Anno 17 R. 2. c 6 accusation 8. It was enacted Anno 15 H. 6. that no writ of sub poena shall be granted till Surety be found to satisfie the party grieved for his damages and expences if the matter cannot be made good which is conteined in the bill Stat. Anno 15 H. 6 c 4. accusac 9 5. It was used since these Statutes to enter the Sureties upon the bill in this form Plegii de prosequend T. W. de H. in Com. Midd. Ar. J. K. de B. in Com. Midd. Ar. or else in this form Memorand qd 23 die Januar. An. R. R. H. 6 34. E F. de paroch de S London Fulles T. J. de London Yeâ—man coram ipso Domino Rege in Cancellaria sua personaliter constituit manuceperunt â—ropraed querent quod si ipse materiam in hac supplicatione content verum probare non poterit tunc ipsi omnia damna expenss quae sub poena dâ—ct dâ—f in hac parte sustinebit per considerationem Curtae satisfaciet juxta formam statuti inde editi but this is now neglected Peâ—ic in Canc. de An. H. 6. 6. Note if a Bill be exhibited and the Deft demur upon the insufficiency thereof and by the Court the bill is awarded insufficient in that case the Def. shall have no costs or damages by the statute because the statute giveth the damages â—here the bill is found true or untrue but in this case the truth is not tried 7 E. 4 14. Dam. 44. b. Costs 19. b. Damages 163 per Cancellartam Jnstic utriusque Banci in Camera Scaccar 7. Note that the grantee of Lands or Goods upon trust is not compellable in conscience to sue or â—efend but onely at the costs and charges of the grantor 7 E. 4 29. 8. It seemoth that if one sue execution upon a statute staple where he hath released the duty before and the debtor sueth an Audit quer against him to avoid the Execution and the creditor maketh default he shall pay damages vid. 11 E 4. he fo. 46. a casu secundo In an action of Tresp the Plaint recovered by verdict and the Plaint shewed in the Kings bench that the Chancellor had awarded an Injunction against him whereby the sure had not long delayed and now depending the Injunction he prayed his Judgement in the Kings Bench and it was given but the Court would not afford any damages for the Plaint vexation in the Chancery by the Injunction in Banco Regis 22 E 4. 37. b. Damages 138. b. Iudgement 86. 10. In an Action of Trespas the Defendant was found guilty by verdict and the Plaintiff shewed in the Common place that the Defend had sued a sub poena in the Chancery and had obtained an Injunction that he should not proceed at the common Law till the matter in the Chancery were tried and how by means of the sute in the Chancery the Plaintiff had spent ten Marks and now the Injunction is dissolved the Plaintiff dismissed to the common Law and therefore he prayed the Justice to increase the costs because of this vexation And Brian the ch. Just awarded that the Plaintiff should recover three pounds for his costs besides his damages in com banco 21 E. 4. 78 b. consc. 22. b. costs CHAP. IX Reformation and Reversal of Iudgements and Decrees made in the Chancery 1. NOte that upon a
married by him and therefore he revoked his Will and willed that his other daughter should have the land by conscience Laicon when he made his first Will the first daughter had presently an interest in the land which he would not defeat as if one make a Feofment to the use of a stranger he cannot afterwards revoke that use Illingworth there appeareth not any cause why the first daughter should have the land and therefore seeing the Feoffor had not quid pro quo it is no bargain but of his meer will which he may by good conscience change as if the Feoffor had afterwards fallen into poverty he might with good conscience compell the Feoffee to re-feoff him again Prisot ch. Justice of the Common-pleas when the Re-feoffor had once declared his Will and willed the land to his daughter the Feoffee standeth presently subject to the will of the daughter and is discharged of the Feoffee and such a Will is as strong as a Feoffee which is annexed to a Livery of Seizin Fortescue chief Justice of England the Feoffor may have his will if there be special cause otherwise not as if after the first Will the Feoffor had a son born he might well have changed his Will and given it to his son and heir for there is a reasonable cause of his claim and so it is if the daughter had become a Felon 35 H. 6 sub poena 3. Stac consc. note that the better opinion is conceived to be that he may revoke the first Will 15 Eliz. Dyer 3. 25. 4. Note it was agreed if any infeoff another he may declare his Will unto him afterwards and appoint the use to whom he will 31 H. 6. sub poena 23. Stach consc. 5. If I infeoff one to perform my last Will and himself a stranger I have no cause of sub poena against the Feoffee but I may sue my first Feoffee and recover in damages for the value of the land per Yelverton Wilby Clericis Rotulorum and this is meant where the second Feofment is made bona fide in which cause I have no remedy for the land and so it was adjudged in the Cardinal of Winchesters case but if the second Feofment had been also upon trust then I might recover the land by sub poena against the second Feoffee 31 H. 6. sub poena 19. Stach sub poena 6. If I make a Feofment upon trust that the Feoffee shall infeoff my heir when he cometh to full age and the Feoffee infeoffeth a stranger bona fide to the intent to disinherit inherit my heir there the trust is deteined and the heir is without remedy against the second Feoffee by sub p. or otherwise but if the Feoffee had retâ—ined the land himself and refused to infeoff the heir at his full age he might have compelled him thereunto by sub poena per Dunby Just in com banco 33 H. 6. 15. 7. Richard Frank made Feoffees to the use of the last Will of him and Agnes his wife and they dyed having issue John and Izabel John was outlawed of murther and also delivered to the Abbot of Westminster as a Clerk attainted for robbing a boy called a Monstral out of the Church of the Prioress of Clerken-well and lastly was indicted and outlawed for Felonies and Treasons and during his life Isabel sued a sub poen against the Feoffees to be infeoffed of the land as next heir to the land the Feoffees upon their Oaths confessed the trust wherefore it was decreed by the Court by advise of John Fortescue Knight chief Justice of the K Bench and divers other Justices and Serj. that the Feoffees should execute an estate to Isabel and her heirs qâ— nota petic in Canc. Ann. 33 H. 6. 2 pts 8. It the Feoffee upon trust do refuse to perform the trust by denying to re-infeoff the Feoffer he shall be compelled thereunto by sub poena and decree and imprisonment per Liac Ser. 37 H. 6. 13. 9. One having four Feoffees seised to his use sold his land to J. S. and said to two of his Feoffees that his Will was that they four should make a Feofment unto J. S. accordingly which two Feoffees notified his Will unto the other two who refused to joyn in the Feofment whereupon the first two alone made a Feofment to J. S. of their parts and afterwards the Feoffer sold the lands to J. D. and required those two Feoffees which refused before to infeoff J. D. who did so accordingly and J. S. sued a sub poena against the two Feoffees which refused and because the two Feoffes did bur onely give notice to the other two Feoffees of the Feoffers Will and did not tell them that the Feoffer had commanded them to infeoff I. S. and without commandment they were not compellable to make the Feofment therefore the two Feoffees which so refused were dismissed per canc omnes Iust. 37 H 6. 35. sub poena b. consc. 5. 10. If the Feoffer do send his servant to his Feoffees commanding them to make estate according to his Will the Feoffees are not bound to make a Feofment without specialty proving his Will per plur. Instic 37 H. 6 35 sub poena 1 b. consc. 5. 11. One willed that his Feoffees should make an estate for life to I. S. the Remainders to I. D. in fee I. S. refused to make the Estate for life I. D. may compell the Feoffees by sub poena to limit an estate in rem unto him after the death of I. S. per Ienney Serj. Fincham apprentice and Fincham said that the Feoffees ought to make an Estate to the heir of the Feoff r during the life of I. S. if I. S. did â—â—fuse the rem to I. D. 12 And I. D. may compell the Feoffees by sub poena to grant the rem in the life of I. S. for else by the refusall of I. S. he should lose his rem otherwise it is if a man devise â—aâ—ds by his Testament to I. S. for life the rem to I. D. further if I. S. refuse yet there needeth 〈◊〉 sub poena because he may enter by the law bâ— force of the Testament 37 H. 6. 36. sub poena 6. consc. 5. 13 If any Feoffee in trust be dissâ—izâ—d I may have sub poena to compel him 〈◊〉 bring Assize against the Dissâ—â—sor per Mâ—â—le Danvers Iustice in communibance 2 E. 4. 2. b. consc. 5. 14 If If I be bound by obligation to I. S. to the use of I D. that I shall infecâ—s I. D. for certain lands if I do offer a Feofnient unto I. D. and do refuse â—o receive the obligation is thereby discharged but I. D. may â—ave a sub poena to compell me to infeoff him notwithstanding per Danby Capit. Iu stice de communi banco 2 E. 4. 3. 15
stranger for that were a forfeiture and the Chancellour said that in the first case it was no forfeiture in conscience but he would reform so much as was amisse done and no more and so it had oftentimes been ordered before the Chancellour 10 H. 7. 2. 41 A feoffee upon trust was seized by a sub poena by the Feoffor and the feoffee was injoyned that he should make an Estate to the feoffor before a day certain sub poena 100. lib. in Cauâ— 10 H. 7. 4. 42 The Heir of Co. qu. use shall have after the death of his father the issues and profits of the Lands as if his father had died seized thereof and he may compell the Feoffees upon trust by sub poena to infeoff him and shall have all advantages as if his father had died seised in Camera Scacc. per Wood Serjeant 13 H. 7. 7. 43 If the Feoffees upon trust will not infeoff the Feoffor he may compell them by sub poena in communi banco per Brian cap. Justic. de communi banco Danvers Justic. 14 H. 7. 19. 44 One having feoffees in trust devised by his Testament that his Feoffees should sell the Land the Feoffor died the Feoffees infeoffed others to the first use the second Feoffees may not perform the Will but the first Feoffees may and the second Feoffees may do it because there is a kinde of use in I. S. seeing he is specially named and he may compell them to sell unto him and if the Will were that the Feoffees should sell his Lands to pay his Debts the Creditors may compell the feoffees to selâ— it but if he had willed that the feoffees should sell the Land for money to be distributed there no man can compell them to make the Sale per Fineux cap. Justic. Read Tremaine Iust. If the Will were that his Executors should sell it though his Executors refuse to administer yet the ordinary Administrator may not sell it but the Executors themselves may notwithstanding the refusall cause the uses not testamentory per Finenx cap. Iusiic Angl. Read Termail Iustic. And if he will that his Land shall be sold and shew not by whom his Executors shall sell it and not the feoffees for the Executors have the greatest confidence put in them for they have the disposition of the money for which it is sold per Fineux cap. Iust. Angl. Read Tremaine Frowick Serjeant And if the Will be that the Land shall be sold the Heir shall take the profits untill it be sold per eosdem in Banco Regis 15 H. 7. 1â— b. Feofm al use 12. 45 If one having feoffees upon trust do make his Testment that they shall have an Estate to I. S. and dieth if the feoffees infeoff others to the first use the second feoffees may make the Estate by Kingsmell Serjeant 14 H. 7. 33. 23. Feofments al use 12. 46 In a Formedon against two feoffees upon trust if the feoffees refuse such Pleas as the feoffor doth minister to them or if they or one of them do refuse to vouch where the feoffor sheweth to them good cause of voucher the feoffor hath no remedy against the feoffees to compell them buy by sub poena or else by Action upon the case per toâ—am Curiam And Bradnell chief Justice of the Common-place said that if a feoffee upon trust die without Heir or die his Heir being within age or is attainted of felony so that the Land cometh to the Lord the Lord shall have it to his own use and the feoffor hath no remedy in communi Banco 14 H 8. 24. 47 The feoffees upon trust may grant the Offices of Steward and Receiver per Newdibank Serjeant if the feoffor die without Issue within age the Lord shall hold the land to his own use and if the feoffees acknowledge a Stat. Merchant and the Conusee do extend the Land he shall hold it to his own use because the said persons do come unto the Land by the operation of Law and not by their own Act nor by the Act of the Feoffees but if the feoffees infeof a stranger which hath notice of the first use there the second feoffee shall be seised to the first use though he paid a consideration Quia participes criminis consentientes agentes paci plena plectentur dolus fraus nemini patrocinetur and if the second feofment be to one that hath notice and he pay consideration then he shall be seised to the first use but if he pay no consideration nor have no notice yet it shall be to the first use per Justic. Servients If the feoffees grant a Rent for Life out of the Land without any consideration If it be to one that hath notice of the first use this Rent shall be to the use of the feoffor of the Land per Pollard Brook Fitzherbert Iust. in communi Banco 14 H. 8. 4. 48 A use shall ensue the nature of the Land for if it be use of the Burgh English Land the youngest shall have it and if of Gavel-kinde then all the Children por Pilman Serjeant 14 H. 8. 6. in banco 27 H. 8. per Pollard apprentic 49 If the feoffee upon trust die his Heir shall be subject to the trust per Bradwell cap. Just Fitzherbert Brook Justic. in communi banco â—4 H. 8. 7. 50 Note by Brook Justice that uses are created by the common Law and are relieved by conscience and all medling with the Land by the Feoffees ought to be at the desire of the Feoffor and if the Feoffee do otherwise he is chargeable in conscience 14 H. 8. 8. in communi Banco 51 If one have Feoffees in trust of Seigniory if the Tenancy do escheat unto them they shall be feised to the use of the Feoffor and so it is of Land recovered in value per 〈◊〉 Iust in communi Banco 14 H. 8 9 52 One having feoffees upon trust wills that his Executors should sell his Lard 〈◊〉 died if that Executor make another Executor in that case the Executor of the Executor cannot sell the Land because the first Executor had that power as in authority severall from his Executor ship and though the first Executor had refused the Aministration yet he might have sold the Land per curiam in cancellaâ—â—a Scacc. And if he had willed that the chief Justice should sell his Land although that the chief Justice had resigned his Office and another been placed yea the first should sell his Land per Bradwell Justic. communis Banci and if the will were that John S. should sell his Land if I. S. die his Heir cannot sell it because the trust is determined per Shelley Ingelfield Justic. Willoughby Spilman Serjeants 19 Hen. 8. 9. 53 Note by a Statute in Ann. 1 R. 3. the Will of the