of Wight is parcel of Hamp-shire and Wales and Ireland are parcel of the Realm for Writs of Errour lie c. And I think it is very true Hollinshead description of Britain fol. 16. b. that the Isle of Man was then no parcel of the Realm for the first mention thereof in any Chronicles is the same year that England was Conquered by the Normans for when Harold had at Stainford-Bridge Conquered another Harold that was King of Norway one Gordard the King's Son of Ireland fled to the Isle of Man in time Conquered it and made himself Lord and Landlord of all the Isle So as to this day there is not a Free-holder in that Island but all are Tenants to the King of that Country It is about thirty miles long and fifteen miles broad it is not governed by any written Laws or Courts of Record but all their Controversies are ended by Arbitrators whom they call Deemsters When King John Conquered Ireland he sent Forces into Man and wasted it all but seated no Government there 1240. One Harold of the Norway Line was received and was invested in the Kingdom of Man by the King of Norway and yet afterwards he was made Knight by the King of England 1250. Or thereabouts in King Ed. 1. time Alexander King of Scots having Conquered all the Islands either by Strength or for Money amongst the rest brought the Isle of Man under his Dominion the old King's Daughter sued to Edw. 1. as to the Supream Head of Scotland the Answer Sequatur coram Justiciariis de Banco Regis ut Justicia Edw. 2. granted it to Piers Gaveston but in Anno 1393. William of Mountacute by strength won it from the Scots as Thomas of Walsingham saith and sold it to William Scroop he was attainted and so it came to Hen. 4. The King of England he granted it to Henry Peircy to hold it by carrying before the King Lancaster's Sword but presently he was attainted and the King granted it to Sir John Stanley and so it came to the Earl of Derby Seman's Case 5. Reports A Man's House is his Castle and his Castle is his House Points upon the first Case 1. IF Tenant for years may attorn before Entry 21 H. 7. One makes a Lease for years and before the Lessee enter the Lessor releases to him the release is void One bargains and sells his Land to another and before the Deed is inrolled he attorns to the grant of the reversion and after the Deed is inrolled and the Bargainee enters 21 H. 7.28 H. 8. Dyer Debt for Rent lies before entry of the Lessee Litt. Lord and Tenant the Tenant makes a Lease for life the Lord grants the Seigniory to the Tenant for life in Fee the Tenant ought to attorn yet he shall not hold of the Tenant for life during his life 28 H. 8. Brook Tenant for twenty years makes a Lease for ten years Tenant for ten years attorns it is good 20 H. 6 7. A Seigniory is granted by Deed to one for life the remainder in Fee Tenant for life dies before attornment c. contrary if it were by Fine 11 H. 4.18 One who hath nothing in the Land must attorn as Tenant in Dower who hath assigned her Estate 2. The reversion of Tenant in tail is granted he commits Treason and attorns and is attainted 12 E. 4.3 Tenant in tail shall not be compelled to attorn but 15 E. 4.13 if he attorn voluntarily it is good Nor Tenant in tail after possibility c. 46. E. 3.13 39 E. 3.20 3 H. 6.12 5 H. 5. Attornment 17. One makes a gift in tail rendring Rent the Donor by Fine grants the Rent the Tenant in tail must attorn 8 H. 5.10 Tenant for life grants his Estate upon condition the Lessor grants the reversion Tenant for life attorns and after performs the condition yet the Attornment is void But all the question is upon the relation of the Office and this shall not vacate the Attornment for it shall not relate for the mean profits of the Land Sir VVilliam Fleetwood's Case Cook lib. 8. by the same reason if Rent were reserved it were well paid and well received and sufficient to invest the reversion in the Grantee 3. Adventurer to the East-Indies is within the Statute 4. Gardian of a Ship is within the Statute The Chancellor hath authority to award a Commission but not to grant Supers And therefore death of the King or a new Commission leaving out the old Commission may be but no Supers If the King present to a Benefice above 20 l. the Chancellor cannot make a revocation but as well in our Case as in that Case by Warrant under the Signet Privy Seal or Seal Manual the Chancellor may award Supers 6. Denizen of Ireland Points upon the Third Case 1. TEnant for life the remainder to the right Heir of I. S. makes a Feoffment in Fee upon condition and enters for the condition broken who shall enter for the forfeiture The Feoffer shall not enter for all is out of him by the Feoffment and he hath nothing but a possibility The right Heir of I. S. shall not enter for his remainder is destroyed The first Question is upon the Statute of W. 2. cap. 25. Whether if Lessee for years make a Feoffment by Livery within the view the Feoffer or Feoffee or both of them or neither be Disseisors 2. Upon Baron and Feme whether a Feoffment without Deed to the Baron and Feme and Livery only to the Feme invests any thing in the Husband 3. Upon the matter admit they are both Disseisors whether the release made to the Husband shall exclude the Wife it shall but in this Case where Tenant for years enfeoffes two and the Lessor releases to one he shall not hold out his Companion 4. Baron and Feme are Joynt-Tenants of a term and the Baron is made King what is become of the term and so of Freehold Whether the King shall have all or the Queen all or they remain Joynt-Tenants or Tenants in Common they are Tenants in Common 5. A Feme commits a Disseisin to the use of her and her Husband and the Husband is made King and the Disseisee releases to the King what is wrought if he can agree to the Disseisin being King 6. A Feme Covert Alien purchaseth the Husband is made King and Office is found 7. A Feme Covert purchaseth the Husband is made King if he can waive Points upon the Statute 1. IF one born in the Isle of Man is within the Statute 2. If Adventuring to Virginia is Merchandizing 3. If an Inn-keeper be within the Statute 4. If going to the Isle of Man be a Departing 5. If keeping of a Castle be a keeping of his House The Second Division Who shall be said a Subject born of this Realm or of any of the late Queens Dominions or Denizen 1. A. and B. Disseise C. who in consideration that A. at his request hath
the Lord and a stranger the Lord disagrees the stranger shall have all 20 E. 4. Fitz. Nuper obiit 14. If the Defendant in a Nuper obiit disclaim in the Blood the other Coparcener shall have all by descent and a Mordancester of all 22 H. 6.44 A Precipe against two if one disclaim all vests in the other So here in as much as the use passed by the contract if one of them will waive that contract and take himself to another bargain then the first contract will stand good for all to the other and the Inrollment for all shall relate to the use of the other and shall be paramount to the fine and destroy the Conveyance by the fine as it is in Pophams Case 5 Eliz. 2. But then comes in the next question this fine was but of part of the thing bargained and sold and therefore it will not destroy the contract for all but only for part that is for a Moiety of the services I take it that this contract being entire being destroyed in part is void for all Qui partem individui facit nihil facit I will example it with other Cases 34 H. 6.21 It is a good plea in an action of debt for rent that the Lessor entered before the day of payment for the contract was entire and therefore the rent not apportionable 22 Ass 53. Lease for life rendring rent for Land part in Franchises and part in Guildable in an Assise brought at Common Law for the rent Conizance shall not be granted for the rent is entire and the Kings Court shall be preferred contrary to Thorp as it is in 46 E. 3.8 But if the Land is in question conizance shall be granted for so much as lies in Franchises 9 E. 4.1 One is to lease a Chamber and find the Lessee his board for 6 s. a Week in an Action of Debt for the Money non demisit cameram is a good Plea for destroy the contract in part it is destroyed in all for it is entire 30 H. 8 Litle Broke I sell my Horse and another man 's for 20 l. to be paid at a day to come and before the day the other man recovers his Horse against the Vendee yet the Vendor shall have an action for all the money So here the Consideration of the money raises the use that 's an entire Sum and if you will have that the Demeasnes shall pass by the contract for the use and the services or part of the services shall pass by the grant what a confusion would that be and how much of the Consideration went for the one and what for the other I might that way maintain my conclusion that the whole Mannor passes to D. 9 E. 4. Choke A Mannor consists of Demeasnes and Services sever them and the Mannor is destroyed and in Sr. Rol. Heiwards Case none shall take by fraction of Estates 3. The third question being that the Husband purchases Lands by Bargain and Sale to him and his Wife and before the Deed is inrolled the Husband takes a Fine or a Feoffment of the Land to him and his heirs and then the Deed is inrolled what shall the Wife have and I say as I said she shall have nothing 3 H. 7.9 It is plain that if Lands be conveyed to a Feme Covert if her Husband disagree the Feofment made to her is made void and it shall return to the Feoffer But if a Feofment be made to I. S. and a Feme Covert and her Husband disagrees all vests in I. S. Rutland's Case li. 5. Cook is that the Husband by Indenture limits Lands to the use of his Wife but before the fine levyed by other Indentures he limited the same to other uses so in that case before the assurance is perfected the Husband by whose means and bargain making this use was to rise to the Wife before this Assurance finished makes a new bargain for himself and the Wife if he disagree can take nothing Kenn's C. Cook lib. 7. It is the Husband hath the power to contract for the use although it be of the Wives Lands 4. The next matter that I intend a question upon the Statute of Inrollments is supposing this Land is held in Capite Lands held in Capite are bargained and sold to a man and before the deed is inrolled the Bargainee dies his heir within age whether here be such a dying seised and a descent as his Son shall be in ward and I think it is There be divers Cases where the heir shall be in ward and yet the Ancestour dyed not seised 48 E. 3.8 If there be Lord and Tenant and the Tenant is disseised and dies his heirs within age the Lord may seise c. 20 H. 6. Tenant in tail aliens and dies his heir within age his heir shall be in Ward to the Donor 33 H. 6.5 Tenant for life the remainder in fee he in remainder dies his heir shall not be in ward for the remainder but if the Tenant for life die then by matter ex post facto he shall be 11 H. 4.61 By Hank and Norton If the heir recover in a writ of ayel on Cocinage he shall be in Ward If the Father lose by error or false verdict If the Son reverse the Judgment by error or attaint he shall be in ward If the Father recover and dies before entry or execution and the Son sue execution he shall be in guard Points upon the Statute Swinburn Fol. 175. I will that my villain be manumitted when my Son comes to age my Son dies before the age the villain shall be at Liberty when the Son would have been of age D. Enters and manumits a villain The Question is a man hath a Mannor to which be villains regardant he becomes a Bankrupt manumits the the villain Commission is agarded if the Commissioners may sell the villain and I have concluded they cannot For the villain being once at liberty in this case is infranchised for ever I grant that in divers cases a villain may be infranchised pro tempore and yet be a villain again 13 E. 4.2 As if Tenant in tail will enfeof his villain of the Mannor the issue shall have a Formedon and reduce both the Mannor and the villain 33 H. 6.13 Enfranchment by Tenant for years or for life is good but for their time And it is much controverted whether if a nieff marry a Freeman she be not for ever enfranchised Old Nat. Brevi fol. 6. If her Husband die she shall be a nieff again 33 E. 3. Statham Vil. She shall be neiff again even to her own Son when her Lord and Husband dies But as the Law saith there is nothing more respected than life and liberty So I am of opinion and I have authority for it that if she be once married either to her Lord or another Freeman she is at liberty for ever 31 E. 1. Fitz. vill 46. It is first questioned and some there are of
in Chancery Feme Tenant for life of a Copy-hold the Lord grants the Reversion to three the Baron Surrenders to one of them who first dies there the Lord would have kept the Land as occupant during the Husbands life 9 Eliz. Dyer 267. But it was decreed that if the Husband and Wife would surrender to the Surviving Lessees in reversion the Lord must admit them or else avoid the possession So if the Lord will not admit the party to whose use the party shall have the Lands if a man surrender to the use of his last Will and Testament the Lord shall not have the Land but the Tenant during his life 3. But before I go any further let us consider of this Lease it is by a Surrender upon Condition and he in reversion surrenders to anothers use and the Condition is broken My Question is whether he in reversion shall enter for the Condition by the Common Law he cannot then may he enter by the Statute of 32 H. 8. Cap. 34. of Conditions there be divers Statutes which reach Copy-holds though they be not named Heydons Case lib. 3. Copy-holders are Lessees within the Statute 32 H. 8. of Monasteries The Statute of Cui in vita Receipt quod ei defortiat Coke li. 4. Kite per Wray Copy-hold estate is within the Statute of Champertie and Maintenance 32 H. 8. Cap. 9. Dean and Chapter of Worcesters Case Coke li. 6. Copy hold is within the Statute of 13. Eli of Leases by spiritual persons Lands usually let c. Lillingstones Case adjudged 27. Eliz. That if the Lord infeoff the Copy-holder to anothers use that the Copy-hold is saved by the Proviso in the Statute of 27. H. 8. Margaret Podgers Case A Copy-holder is bound by Fine and 5. years The general rule is layed down in Heydons Case That all Statutes that may be for the good of the Copy-holder shall extend to them therefore I am of opinion that such a Grantee shall enter for non-payment of rent or for doing of waste as the words of the Statute are For it is for the good of the Copy-holders that their Farmers be bound to pay their Rents keep their Tenements in repair I should make small question of this if the Lease were made by license for then it is a plain lease at Common Law and an Ejectione firme will lie But here the Lessee comes in by the Lords admittance but that is answered by my Lord Cook when he is once admitted he is in immediately from the Surrender and in the Per. 4. But this Condition is for waste and it is broken whether is there a forfeiture to him in reversion or a forfeiture to the Lord of the estate in fee simple It is to the Lessor not to the Lord wherein I fall again upon the difference when it is by License and when by Surrender for I take him to be as if he had a particular estate with a remainder over In Podgers Case fo 107. Si cop pour vie sit semble al case del Duke of Norff. Points upon the Statute A Merchant being a sufficient man departs the Realm and beyond the Seas becomes non solvent and so refuses to return although he be served with a privy Seal to return Here be two Questions First whether he be a Bankrupt for not returning For he is not within the Compass of the Statute of departing the Realm The next Question is admitting him to be a Bankrupt Whether the King shall have his Goods as the goods of a Fugitive or else whether they shall go to satisfy the Creditors For the first I think he is a Bankrupt and although he be not within the compass of these words depart the Realm yet it is plain he is within these words absents himself for although his departure was no offence either to the King or his Creditors For Merchants both by the Common Law and notwithstanding the Statutes of 5 R. 2. Cap. 2. or the Statutes of 13 Eliz. might depart the Realm without license except the King as it is in Natura Brevium fol. 85. had made proclamation to the Contrary Yet the King not only by the Statute but by the Common Law as he may forbid a man to depart so he may send for him at his pleasure to return And that is proved by the express Book of 2 3 Phil. and Mary Dyer fol. 128. Where it is said That if he be commanded to return either by the privy Seal or the great Seal and refuse his Lands and his Chattels shall be siesed into the Kings hands and for that a President was found in the Exchequer where in Anno 19 E. 2. It was William de Brittains case although it is true as I said the first departure is no offence according to the Book of 13 Eliz. D. fol. 296. But then admitting he is a Bankrupt and admitting that by his refusal to return he hath forfeited all his Goods and Lands to the King The Question is whether the King or the Creditors shall be preferred And I take it the Creditors shall be preferred Yet He agree the rule is that when a title falls to the King and a Common person both at once the King shall be preferred Dame Hales Villain and Ideot Priority and Posteriority 5 E. 3. But I rely upon a Case which was ruled upon a Trial by my Lord Cok. 12. Jac. in t Newman and Martin ou Martin fuit adjudge Bankrupt because he was beyond the Seas c. 2. Points upon the Statute One hath the freehold and another hath the Copy-hold of one onely acre severed from the Mannor this is plain as it is in my Lord Cokes 4. reports in Case This Copy-hold by no means can be transferred from one to another But now our question is Whether this Copy may be sold by Commissioners I say Parliamentum potest omnia By Act of Parliament it may be sold And here the very words of the Parliament are That the Commissioners may sell his Copy-hold estate The Law was taken before Corbets case was first argued That it was impossible to cut off perpetuities yet there were divers before that were cut off by Act of Parliament and they all that argued for the perpetuites agreed that by Act of Parliament it might be done By the Common Law a thing in action cannot be transferred as a debt upon an Obligation Yet by the Statute of Bankrupt Jacobi primo we see it is done every day But it will be objected that the Statute goes on and saith That the Vendee shall compound with the Lord for the Fine and be admitted Now if there can be no admittance then no sale and it shall be intended such Copy-hold whereof admittance may be And in Dr. Bonhams case divers cases are put where divers Acts of Parliament are void and divers others construed directly contrary to the words But out of that Case I will prove this to be good for first this Act saith The
a day upon pain of 10. l. at the next Court he is presented because no reformation is made and there then the Tenant Traverses the Presentment that he is not guilty the Traverse is disallowed the Lord becomes a Bankrupt the Affeerors resuse to affeere the amerciament the Commissioners sell all the debts of the Bankrupt to A. A. Shall have an action of debt for this amerciament 6. A. sues execution of a Statute Merchant and the Conizors Land is extended at too high a value and refused by the Extendor and delivered to the Jurors B. defeats the execution by extending an elder Statute A. is a Bankrupt the Commissioners sell all his debts the elder Statute is satisfied the Jurors will not enter This is a good Sale of the possibility to extend and the Vendee shall have a Scire facias against the Tenant by the elder Statute and the terretenants and the Jurors to revive the former Execution 7. A. and B. Tenants is Common grant a rent of 10. l. per annum to C. who brings an Annuity against A. and recovers and after he distrains and Avows upon B. and becomes a Bankrupt the Commissioners sell the Annuity and the rent a fourth part of the Land descends to the Vendee The sale of the Annuity and also of the rent were good but he shall Avow upon B. but for 5. l. per annum 1. If he can bring an Annuity against one and distrain the other 2. How a Rent shall be apportioned when part of the Land descends to the Grantee 3. If a Rent charge be within this Statute because it is not within the words 8. A Mannor in Surry is giving to Baron and Feme and to the heirs of the Baron the Baron dies his heir being a Merchant claims the heirlooms the Executors of the Father claim them as Chatells the heir sells the Reversion and becomes a Bankrupt the Commissioners sell the heir-looms This a good sale but the Wife shall have the use of them during her life 9. One makes a Feoffment upon condition that the heir of the Feoffee shall infeoff I. S. the Feoffee grants a Rent charge the Feoffer enters for the Conditions and dies the Feoffee re enters and two Co-partners being the heirs of the Feoffor bring a Mortdauncester against the Feoffee and recover the Land and damages they have other Land in execution by Elegit for the damages the one dies the other is a Bankrupt The Commissioners shall sell all the Extent 10. A Disseisor makes a Lease for life to A. who makes a Lease for years to B. a Merchant stranger who is made Denizen upon Condition that he shall not depart the Realm the Disseisee confirms his estate Tenant for life dies the Disseisor enters B. being non solvent by License of the King with a Non obstante departs the Realm the Commissioners sell the term the Vendee enters upon the Disseisor The sale of this term is good 11. A. By Deed Poll demises the Land of B. to C. a Merchant who enters B. re-enters C. in an action of Covenant grounded upon the Deed recovers 10. l. damages against A. C. being indebted is committed to Prison by the High Commissioners for non payment of a Fine by them assessed and there he remains by six moneths the Commissioners assign the damages to D. who sues a Scire facias in his own name against A. and hath Judgement to have Execution A. brings a Writ of Error against C. of the first Judgement C. confesses the Error The Judgement is erroneous and yet the assignment of the damages is good and D. shall have Execution 12. A. Makes a Joynture to his Wife an Alien of part of his Land and dies she is made a Denizen and takes a Bankrupt to Husband the Commissioners sell the Joynture part of it is evicted by elder title she sues a Scire facias and recovers other Land in recompence an Office is found the Commissioners sell as well the Land recovered in value as the residue which was not evicted The sale of the Land recovered in value is good but not for the residue For New-Inn The Case THe Land of A. is extended for the debt of B. and A. grants the reversion to C. in Tail B. attornes and hath a Liberate A. grants the reversion of C. to D. a Feme sole Merchant Denizen of Ireland C. commits Treason and attorns and suffers a common recovery to the use of himself D. takes E. an Alien and Londoner to Husband C. is attainted D. continues sole Merchant E. is naturalized D. is indebted and elopes C. dies without issue E. enters and is non solvent a Commission is awarded and proclaimed D. hath issue and dies an Office is found the Term expires Conclusion The Land shall be sold by the Commissioners 1. When Land is extended and before a Liberate it is to be considered in whom the Land is 3 E. 6.68 It is said that goods extended are in the custody of the Law but yet not so out of the Conizors possession but that they may be extended for the Kings debt due by the Conizor 41 E. 3. Fitz Recognizance 38. Land was extended by the Sheriff and before Liberate the Lands were extended for the Kings debt and so process stayed 33 H. 8. Broke Recognizance 41. Liberate may be taken out seven years after the extent 41 E. 3. fol. 1. It is questioned whether the party or the King shall have the mean profits of Lands taken by cape grand till a petty cape Also it will be objected that a reversion will pass by words of possession but possession will not pass by words of reversion Frokmerton and Tracy 43 E. 3. and Smith and Stapleton But except we prove this reversion to be well granted we are at an end of our case for all the rest depends upon this point We say then that when Lands are extended it is plain they are out of the Conizor presently And although it seems that for the time they are in the Kings hands yet when the Liberate comes they are in the Conizee ab initio and by strong relation So as if a Mannor be extended to which an Advowson is appendent and the Church becomes void and Liberate sued the Conizee and neither the King nor the Conizer shall present So if Arrearages of Rents fall due between the extent and the Liberate the Conizee shall distrain and avow for them Wherein I will compare it to Longs Case that was in the Common Pleas Pasch 31 Eliz. Rot. 2024. one granted a Mannor to which an Advowson was appendent and made Livery the Church became void and afterwards the Tenants attorned the Grantee shall present and the Attornment shall relate to make the Grantee in from the time of the Feoffment And although it is said 8 H. 5. fo 10. that no man can attorn to a grant of a reversion that hath as yet nothing in possession but hopes or possibilities As if Tenant for life
grant his Estate upon condition and the reversion is granted and he attorns and then enters for the Condition yet the attornment is void But yet the Law will respect such a possibility as 5 E. 3. fol. 36. Lands were given to the Baron and Feme the Baron dies the Feme makes a Lease for her own life the Lessee is impleaded in a Cui in vita and he vouches the Feme and she prays in aid of the heir of the Husband and well and yet the Feme had nothing If I bargain and sell Lands to one for life and then I grant the reversion and the Barganee attorns and then the Deed is Inrolled this Reversion is well granted and this is a good Attornment But it may be objected that the Land is not in the Conizee upon the extent for if it be extended at too high a rate he may return it upon the extendors for so are the Books of 44 E. 3. 2 H. 4.17 21 E. 3.21 15 H. 7.16 and divers others Books But I make this an Argument for my self for that shews it is out of the Conizor and if the Land were in the extendors hands no doubt but the reversion might be granted and by the Book of 1 E. 3.8 in a quid juris clamat they shall be forced to attorne 2 But admit that such a grant of reversion may be made yet no grant of a reversion can be good without Attornment of the particular Tenant and here your Conizee the Tenant attorns before his time that is before he hath possession by the Liberate and so the case of 8 H. 5. fol. 10. comes full against you To that I answer That the Tenant by Statute is esteemed in point of Attornment as Tenant for term of years for so the Case of 1 E. 3. fol. 8. esteems him And I make small Question but that if a man make a Lease for years and before the Lessee enter the Lessor grants the reversion and the Lessee attorns This is a good Attornment for it matters not whether ever the Lessee entered or not for the Land was in him to give grant or forfeit and 21 H. 7. fol. 27. after such a Lease If the Lessee will not enter yet if the Lessor waive the possession and a rent day accrews the Lessor may have an action of debt against the Lessee without ever making any averment that the Lessee entred So in our Case although the Conizee cannot enter of himself but by the Livery of the Sheriff yet he is not in by the Sheriff but by the Law in the Post And it is not very absurd to say he is in by and under and from the Conizor for if the Conizor had Covenanted that any to whom he after the Recognizance had conveyed the Land should have enjoyed it against all claiming from by and under him and the Conizee had sued execution the Covenant had been broken 3. Then allowing that this first grant of the reversion is good to C. in Tail Then the next question is that C. commits Treason and A. grants the reversion of C. in Fee to D. and C. Attornes Whether this be a good Attorment Whether if C. comes afterwards to be attainted for the Treason and an Office being found hath relation to intitle the King to the Land from the time of the Treason committed that is Whether this Office shall not relate to make C. no Tenant of the Land from the Time of the Treason committed I will agree it will relate to avoid all charges and incumbrances made by C. but yet the Attornment is good for that I will put but one Case that comes full home to the point which is Sir Miles Fleetwood's Case in my Lord Cooks 8. Report which is that the Attainder and Office relate to intitle the King to the Land from the time of the Treason committed but not to Chattels sold or to the mean profits of Lands received so as for the mean time C. was Tenant and might take the Profits and the Rents paid to him by the Tenants were well paid then a fortiore might he do and execute all instrumental Acts as if he had been Lord of a Mannor and a Copyholder after the Treason and before Attainder had surrendred to the use of another who had been admitted the surrender and admittance had been good and so consequently the Attornment for by the Attornment he parts with nothing of his own only he is a means to profit another mans grant of that which was never his 4. The next Question is That the Tenant in Tail commits Treason suffers a Recovery to the use of himself and then it attainted whether the King shall have the Fee-simple or else whether the Office shall not relate to make the Recovery void and whether he in Reversion who by intention of Law had recovered other Land in value shall have any benefit against the King by the Kings priviledge which he hath to avoid this Recovery It is plain that if this Recovery had been to the use of a Stranger the King by Office should avoid it and consequently he in Remainder would have been remitted The difference of the relation of an Office to intitle the King to Goods but from the Attainder and to Lands from the time of the offence committed are these 42 E. 3.26 33 E. 3. Fitz. Forfeiture 30 31 H. 6.5 temp H. 8. Bro. fo 42. I take it that if the King in this Case had taken the benefit of the Statute of 33 H. 8. c. 20. which gives the King all the Lands which a person attainted hath at the time of his Attainder though there be no Office sound then the King might have seized the Land and the party had had no remedy But now an Office being found the King is in by the Office which discovers the whole matter of Record and the party hath the benefit thereby And thereby it appears that C. was by the offence and the relation of the Attainder disabled to make any Conveyance or disposition of his Land That a Common Recovery is a Conveyance vide Coke li. primo Pelhams Case So this Grant of the reversion to D. is good and not pulled out by the Recovery But it is granted to one that is an Alien born but made a Denizen of Ireland whether now the King be not intitled to the reversion in Fee as the Lands of an Alien I take it that he that is free of Ireland is free of England it is true that one which was born in Scotland ante c. and these that were born in times past in Aquitain or in Normandy were Aliens born because these Countries were brought with the Kings of England as their former inheritance but Ireland was conquered by H. 2. and inhabited and planted with Englishmen and upon the matter made part of the demeasnes of the Crown of England as other Islands are as the Wight and Jernesey Virginia and Greenland and therefore the Kings of
Escheated shall be sold but Quere if it Escheat after the Commission and Death of the Bankrupt One bargains and sells a Seigniory to a Bankrupt and after Commission the Bankrupt dies and the Deed is Inrolled after the Commission The Bankrupt having Land holden in Capite dies his Heir within Age and Office is found if they can sell The same if his Heir be an Ideot or a Lunatick A Bankrupt becomes Lunatick an Office is found A Bankrupt is Tenant in Tail the remainder in the King if it can be sold but for the Life of the Tenant in Tail Tenant in Tail grants all his Estate and becomes a Bankrupt the Land shall not be sold Tenant in Tail of a Rent is disseised thereof and dies his Issue is a Bankrupt and brings a Formedon yet the Rent shall be sold Two joynt Tenants the one is a Bankrupt and dies if his part shall be sold not because the Survivor is not in by him Tenant in Tail the remainder to an Alien Tenant in Tail is a Bankrupt and suffers a Recovery the Land is sold Tenant in Tail dies without Issue an Office is found if the Land shall be sold for the King 8. What Copyholds they may sell and what agreement made with the Lord is good The Lord sells the Freehold of one sole Copyholder to A. the Copyholder becomes a Bankrupt if the Commissioners can sell Copyholder in Tail with a remainder where no Recoveries or where Recoveries are remedied against the Lord who will not compound A Copyholder by License of the Lord makes a Lease for One and Twenty Years the Copyhold Escheats Quere if the Lease is good against the Lord. A Feme by Custom is to have a Widows Estate the Bankrupt makes such a Lease if the Feme shall avoid it A Bankrupt Copyholder makes a Feoffment the Lord enters the Commissioners sell the Vendee tenders a competent Fine the Lord refuseth to admit him the Vendee enters the Lord brings Trespass it lieth not A Bankrupt makes waste the Commissioners sell the Lord enters for a Forfeiture A Copyholder surrenders into the hands of two Tenants he to whose use is a Bankrupt the Lord dissolves the Mannor 9. What Fees Annuities Offices Goods Chattels and Debts the Commissioners may sell A Merchant acknowledgeth himself to be the Villane of I. S. the Commissioners may Assign his Debts Quere of his Goods A Lease for Years provided that he shall not alien the Commissioners sell if it be a Forfeiture 10. What Uses Interests Rights or Titles of a Bankrupt the Commissioners may sell A Bankrupt hath an Advowson the Church becomes void the Commissioners sell the Vendee presents if this be Symony A Bankrupt prefents one who is privy to his Bankrouting who is Indicted the Commissioners sell their Vendee brings a Quare impedit within six Months A Bankrupt hath a Warranty what use the Vendee shall have of it A Bankrupt hath the next avoidans the Commissioners present one for Money paid to the Creditors The Disseisor dies seized after five Years the Disseisee becomes a Bankrupt A Woman hath a Rent charge she takes a Husband a Bankrupt who Distrains and Rescous is made if the Commissioners can sell all the Rent which shall be due during the Coverture 1 E. 3. fol. 5. Pl. 23. The Commissioners sell a Rent or Reversion if good without Attornment A Bankrupt loses by erroneous Judgment if this right to bring a Writ of Errour may be transferred by the Commissioners The same of an Entry for condition broken or performance of a condition A Bankrupt becomes Lunatick the Commissioners sell an Office is found 11. What Deed Inrolled in one of Her Majesties Courts of Record shall be good The Deed is not acknowledged before any of the Masters of the Chancery by the Commissioners The Deed is not Inrolled within six Months the Statute of Inrolements saith by Bargain and Sale only I. S. By prescription holdeth Plea in his Mannor above Forty Shillings the Deed is there Inrolled after Sale and before Inrolment the Bankrupt takes a Wife and die if she shall be endowed the Deed is inrolled in the Mayors Court in London no question of the Hustings 12. What shall be said a just Debt and how the Statute shall make an apportionment between the Creditors what is their duty to do and what remedy they have for their Portions and who shall be said a Creditor and who shall be relieved A Merchant indebted as Surety or Bail for a Gentleman but not for himself If one may Sue for a Legacy before the Commissioners How a Debt doubtful shall be tried before the Commissioners For Money decreed to him in the Chancery or Star-Chamber One Creditor sole Sues a Commission and keeps it with him secretly until the last day within four Months and then the Commissioners sell the Land and pay all to this Creditor the others never having notice thereof what remedy for them The Commissioners sell all the Land and distribute all but this is not full satisfaction after other Land descends to the Bankrupt if they can make another sale and new distribution The four Months are past and part of the Estate distributed new Creditors come in if they shall be admitted to have contribution of the rest which is not yet distributed and if such new Creditors shall have allowance ratably with the other Creditors according to the Remnant of their Debts or according to all paid or not paid A Bankrupt becomes indebted to one who had notice that he is a Bankrupt if he shall be admitted a Creditor One hath a Debt which is not yet due yet he shall be relieved with rateable respect of abatement for the time 13. What Act or Conveyance made by a Bankrupt before or after he is a Bankrupt shall be good He takes a Wife after he is a Bankrupt if she shall be indowed of Land which he had before He takes a Wife after he is a Bankrupt and Land descends to him if she shall be indowed A Bankrupt Disseisor the Commissioners sell and before the Deed is inrolled the Disseisor releases to the Bankrupt A Bankrupt presents one who is private to his intent who is indicted the Commissioners sell the Vendee brings a Quare impedit A Bankrupt becomes a Clerk-Convict and hath Goods within a Liberty A Bankrupt after Commission awarded becomes felo de se A Conveyance to the use of a Daughter a Widow formerly advanced A Merchant Tenant in Knight-service his Heir within Age makes a Feoffment by collusion the Lord after becomes a Bankrupt this is no fraud against the Creditors but yet the Land shall be sold for though it be fraud between the Lord and the Tenant yet there is a Trust between the Feoffor and Feoffee 14. What Declaration or Account the Commissioners shall make to the Bankrupt and whether the Proviso be a Condition and what remedy the Bankrupt hath for to cause them to account The Commissioners all
them by his Deputies and sold to Merchants the term expires I. S. continues his Debt by renewing assurance and payment of Interest for Seven Years and then keeps himself in the King's House for avoiding the Arrests of his Creditors the Commissioners sell his Fee He is no Person who is a Bankrupt within the Statute and the sale is void 10. A. Feme sole being seised of Land in Fee B. contracts with C. an Ironmonger and D. a Smith for Money to him by them paid to marry A. and that after the Marriage he and A. will Levy a Fine of the Land of A. to the use of C. and D. and their Heirs the Marriage is had the Fine is Levyed C. is Outlawed D. departeth C. is a Person who is a Bankrupt by this Statute but not D. and the Moiety of the Land shall be sold The Points of the Second Case 1. WHen Tenant for Years makes Livery within the view the Question is Whether the Feoffer or the Feoffee or both or neither are Disseisors See Ash Disseisin It appears by our Books as in 10. E. 4. fol. 18. that before the Statute of W. 2. cap. 25. Tenant for Years had made a Feoffment he was the only Disseisor and by the Statute Tam feofator quam feofatus shall be Disseisors so as vivente altero eorum lorum habeat predictum breve meaning the Writ of Assise and the very reason why that Statute was made was to avoid the mischief which was put in practice in Farmer 's Case in Coke lib. 3. For even as there Tenant for Years or a Copyholder would Levy a Fine and yet keep Possession and then thought by suffering five Years to pass without entry or claim by the Lessor that he might gain the Land so here Tenant for Years would make a Feoffment then he being the only Disseisor if he died there would no Assize lie against the Feoffee and so the Lessor lost the benefit of this festinum remedium which the Statute gives This very Question being moved by chance in the Court of Wards Hesketh was of Opinion that if before the Statute Tenant for term of Years had made a Feoffment upon the Land he was the only Disseisor if within the view the Feoffee was the only Disseisor But what such a Livery within the view would work since the Statute he made a great doubt if I should hold that neither of them both were Disseisors and that nothing pass but only the Term I should very well maintain the conclusion of my Case to the end for nothing doth actually pass by Livery within the view but by Operation of the Law and the Law will never work to do any Man wrong and therefore 9 H. 7. Tenant for Years of one Acre and in Fee of another makes a Feoffment of both and makes Livery only in the Acre wherein he hath Fee nothing passes of the Acre he had for Years 28. H. 8. D. 18. One hath a House Leased and one close in possession c. for Act in Law never will work a wrong 41 E. 3.5 The Tenant pleads non tenure if the Land descend pendente vere the Writ shall not abate So if nothing pass but the Term then if I resolve the sixt point of my Case that the Term remains with the Queen after Marriage then the Release made to the King works nothing and so the Lessors best right is to enter for a Forfeiture although the Queen afterwards waive but I will let this Question rest a while by reason of c. 20 Eliz. D. Where by the Opinion of the Chief Justices That when Tenant of 100 Years makes a Feoffment by Letter of Attorney the Lessor being upon the Land that the Fee passeth 2. Whether Livery within the view be good without Deed 3. Whether a Feoffment made to Baron and Feme without Deed and Livery to the Feme sole be good to the Husband until disagreement 4. Whether if Tenant for Years enfeoff two and the Lessor Releases to one if he shall exclude his Companion 5. If Baron and Feme are Disseisors and the Disseisee release to the Baron if he shall exclude his Wife 6. A Feme Covert hath a term and the Husband is made King if the Queen or the King should hold the term 7. Baron and Feme Disseisors the Baron is made King the Disseisee releases to him if it makes the King and the Queen Joynt-Tenants or Tenants in Common or if they shall be seised by moieties or intireties or if the release be not utterly void is the seventh Question 8. I. S. is Disseised to the use of the Prince who is made King the Disseisee releases if this be not void for then the King agreeth to the Disseisin 9. A Feoffment is made to a Feme Covert Alien the Baron is made King Office is found if the King shall have the Land 10. A Feoffment is made to a Feme Covert and the Husband is made King if she can waive Points upon the Statute 1. WHether an Adventurer into Virginia be within the Statute 2. Whether an Inn keeper be within the Statute 3. Whether one born within the Isle of Man be within the Statute 4. Whether the keeping of one of the King's Castles be a keeping of his House within the Statute 2. and 3. Questions are Whether a Feoffment made without Deed to the Husband and Wife with Livery within the view to the Wife only and she enters will invest any thing in the Husband That Livery within the view may be made with-Deed I make no great question It is true that the Books are both ways For 38 E. 3.32.38 Ass 2. Baron and Feme Allford 41 E. 3. Jo. Sees Case Temp. Hen. 8 Brook It is good saith he by Deed by Livery within the view Thorowgood's Case Coke lib. 9. If of the ground he saith see you this Land enter according to the Deed. Cont. 39 E. 3 Ass 12. I vouchsafe you the Land 42 E. 3. Fitz. Feoffment 54. the same Case Wich made he a Deed to his Father Lass non Wich was the Land in vica Ass it was half a Mile from the Church yard 11. Ass 6.11 E. 3. Ass 86. Feoffment of all but one Chamber 43. Ass 20. per Brook Feoffment without Deed. But the Question is whether a Feoffment to two or three by Deed with Livery to one is good to all but without Deed but to him to whom c. 10 E. 4.1 8 E. 4.12 15 E. 4.18 But here the Baron and Feme cannot take by moleties and their Estate is but one Estate and they are Disseisors both at Common Law and also by Statute so as if the Baron consent afterwards he consents as one that consents to a Disseisin made to his use 15. Ass 11. by agreement to a Rescous made by a Stranger the Tenant is a Disseisor 37. Ass If my Tenant at will enter into another Man's Land lying by my Land or take Estovers or common if
I consent to it I am a Disseisor Tenant for Years enfeoffes two and the Lessor releases to one of them if he shall hold his Companion out 27 E. 3. cap. 9. gives an Ass of novel dissm to Tenant by Statute Staple against him that outs him as against a Disseisor yet he hath no Free-hold for 1 E. 3. a quid juris clamat lies against him although he be but Disseisor fictitius yet at the election of the Disseisee he is a Disseisor in Law as 7 E. 4. the Vouchee is but tenens fictitius yet a release is good to him If Tenant for Years infeoff two and the Lessor brings assise against one he shall not plead that his Companion is also Tenant not named for by the Statute of 3 E. 1. de Conjunctim feofatis he must slew of whose Feoffment which if he do he overthrows his own Estate and must plead himself was a Disseisor which the Law will never allow for 1 E. 4. fol. 7. no man shall be suffered to say that he himself was a Disseisor Coke Beverlies Case 4. Rep. To stultifie himself Herl 5 E. 3. non sanae memoriae inblenisht himself 35. Ass 10. It is true that in respect of themselves they are in by Feoffment and Title in respect of the Lessor they are Disseisors then the question is who shall be in election and who shall interpret how this release shall work the Lessor or the Lessee or the third Person It is probable to say the Lessor for cujus est dare c. and H. 7. If one Man be to pay two Sums at one time and place and pay but one it is in election and interpretation of the Payer and not the Receiver which sum was meant to be payed It may be said the release c. for the Party to whom a Deed is made if it inure to two intents shall c. as 7 H. 6. a Feoffment may be used as a confirmation 15 Eliz. D. release and grant of a Rent But I conclude the third Person shall take benefit c. First for the reason that in t se c. But they are Disseisors not at Common Law but by Statute for the Benefit of the Lessor of which Statute he may take benefit if he please or waive it 3 E. 4. 21 H. 7.32 19 Eliz. D. Alien and Denizen challenge medietatem linguae so here he hath his election to make him a Disseisor by bringing his Ass or a Tenant in by Title by the release Baron and Feme Disseisors and a release to a Baron whether shall this inure to the Feme for they are seised not by parts but by intireties it shall go all to the Husband for flagitiosae rei nulla est societas it is feodum princip commiatem latronum The question hath been if a Feme sole be a Disseisor and marry whether the Husband be a Disseisor or not 6 E. 3.42 he is not for in a Writ of Entry sur disseisin against him and his Wife he had the view but in our case I take it that if no other thing had happened between the Disseisin and the Release the Husband should have had all The Husband is made King the question is Baron and Feme are Disseisors the Baron is made King the Disseisee releases to the King what is wrought First when Baron and Feme are Joyntenants by Disseisin by Title or by Disseisin all is one and the Husband made King whether do they remain Joyn tenants or else they are Tenants in Common Or else hath the King all Or the Queen all I hold them to be Tenants in Common although this case can be matched or compared with no case of the Law wherein the alteration of the Persons only shall change the Estate of the Parties without making of any new conveyance of the Land 32 H. 8. Brook Deraign 22 H. 6.2 A Feoffment to an Abbot and I. S. they are Tenants in Common but a Feoffment to A. and B. and A. is made an Abbot all shall survive to B. So if a Feoffment to A. and B. and A. acknowledgeth himself Villain to I. S. this alters nothing till I. S. enter but whatsoever the King hath before he is King or whatsoever descends to him or he purchases after he is King he holdeth all in jure coronae suae Angliae Caluins Case ex parte matris Barkley's Case Gavelkind Lancaster Partition in t sorores Queen Eliz. Queen Mary Queen Katharine Ferdinando's Daughters So as the King's possession alters the very nature of the Land and so makes him and his Wife Tenants in Common And that it makes her as it were a Feme sole I need vouch no authorities who all know it in Experience 18 E. 3. fol. The Queen alone brought a Quare impedit 49 E. 3.4 Cavendish the King may give Lands or Goods to the Queen 9 H. 6.13 Margery Parkers Case 14 H. 4.67 Sci. Fac. by the Duke of Suffolk against the Queen to repeal the Patent whereby the King had granted to the Queen the Land of the Duke's Father Tirwhite In all times a Precipe hath been brought against the Queen for she hath always been a Person exempt notwithstanding the Coverture so both their Persons being changed c. it is as if the King were Dead Then have I driven it to this pass that the release can work but to a Moiety the question being whether it work for all or for a Moiety or none that it should work for none If a Feoffment be made to the Wife and before agreement or disagreement the Baron is made King I say he comes too late now to agree or disagree no otherwise then if he had died Then the question is this One makes a Disseisin to the use of I. S. and he is made King can he now agree to the Disseisin The rule is The King cannot be a Disseisor it is true that in times past he might 20 H. 3. Ass 431. Non habet ingressum nisi per Disseisinam quam Dominus Rex facit quaerenti dum fuit infra aetatene in Custodia Comitis de S. and the Tenant saith Non habet ingressum per Disseisinam quam Rex fecit sed habet ingressum per judicium curiae c. But at this day the Law is altered 22 E. 3.37 23 E. 3. Entry 11. If the King Disseise one and makes a Feoffment the Disseisee shall have a Writ of Entry neither in the per nor in the post quam Dominus Rex fecit See the Book 1. H. 4. cap 8. It was doubted what remedy one should have but the Statute is That if the King enter and grant the Land of another if the Grantee enter the Tenant shall have an Assise and trebble Damages against the Grantee And by the same reason he may not agree to a Disseisin done before for till agreement the Disseisor was Tenant and nothing in the King as 2 H. 7.16 15 E. 4.15 If you will say nothing
but a Term passed then in whom was it till I. S. was made King in right of the Woman and that it shall remain no otherwise than a Man that hath a Term in the right of his Wife and is made King she shall have all her Inheritance and all her Terms no otherwise than if he were Dead 3 H. 7.14 The Queen and her Sisters were vouched as Heirs to E. the 4. A Baron and Feme Alien a Feoffment is made to the Feme the Baron is made King if upon Office found the King shall have the Land He shall not have it For the Baron being made King she is made a Denizen by relation to the Marriage which was to prevent the relation of the Office no otherwise than H. 7. being made K. it had such relation that it drowned all former Offences Forfeitures and Attainders whatsoever 7 E. 4.31 The King grants a Farm to the Baily and Commonalty of S. they are made Farmers and a Corporation 2 H. 7. A Lord infeoffes his Villain he hath the Land and his Freedom Grondon's Case Commentaries the King grants Land to a Corporation this is a Grant and a Licence in Mortmain Coke lib. 5.15 Tenant for Life grants a Rent charge to him in the reversion and his Heirs who grants it to one and his Heirs this is a grant and a confirmation A Disseisor makes a Lease for Life the remainder to the Disseisee the Disseisee grants this remainder over this is a grant and a confirmation A Parson makes a Lease to the Patron who grants it over this is an Assignment and a Confirmation A Feoffment is made to Baron and Feme the Baron is made King if the Feme can waive 1. Whether she can waive or not as a Feme may after death of her Husband 2. In whom it shall vest 3. How the release should work then 4. Whether a Feme Convert Disseisor can waive She may no otherwise than if the Baron were Dead for she shall have all her own Land and all her own Leases but not her Goods And it is not of necessity that she expect his Death for if a Feoffment be made to Baron and Feme and they are Divorced the Feme may waive In whom it shall vest Whether in the King or not because in a sort here was a partition But the question will be upon the release whether that shall relate to extinguish all the right of the Disseisee in all the Land as if the Case were Disseisor makes a Feoffment to Baron and Feme and I. S. the Baron and I. S. make partition the Disseisee releases to I. S. this inures only upon his possession for the half the Baron dies and the Feme waives I. S. hath all by Survivour yet shall not the release go to all Also by the waiver it cannot go to the King for that were to make him a Disseisor by the waiver it cannot return to the Lessee contrary to his Livery nor to the Lessor then will not this amount to an occupancy But in this Case the Queen cannot waive but still in regard of the Lessor she remains a Disseisor for if a Feme Covert be a Disseisor and her Husband die she shall not waive the possession for so for years and days she might take the profits and yet in the end pay nothing which were unjust 41 E. 3. An Infant may be a Disseisor and cannot waive a descent It may be probably alledged that she might waive for being a Feme Covert she may alledge ignorance of the matter of fact that is whether her Feoffer had but an Estate for years or was seised in Fee-simple and we find in our Books that great wrongs have been excused by the ignorance of a Man in what wrong he did and waiving the thing wrongfully taken As 22. Ass 85. vid. lib. faux imprison Heire son frere prise per Scots 7 H. 6.27 One brought an Action of Trespass for taking his Swans the Defendant pleaded that he was Lord of such a Mannor and that in a River within his Mannor he found the Swans and took them for strays but after he had notice whose they were he waived the possession of them and let them go this was a good excuse both of the Trespass and Damage 21 H. 6.14 One brings Trespass Quare filium suum rapuit c. He answered you married my Sister and had by her this Son and you being out of the Country it was reported you were Dead whereupon I as next kin to your Son seized him but when I heard you were alive I sent him home again to his Nurse Thus rightly did he waive and avoid his wrong for want of true intelligence which in Law we call Notice But in all those Cases these wrongs were with intents to do right and the parties were of opinion they were in the right but our case is of a Disseisor which is always intended a wrong-doer But you will say this Woman is no Disseisor at Common Law her entry was not malum per se but malum prohibitum a Statute Disseisor and she being a Feme Covert is not bound by Statute But I say she is bound by the Statute for in all Statutes where a Feme Covert is not expresly excepted she is bound as the Statute of 13 H. 6. Disseisin 1. per Martin Baron and Feme may both be Disseisors 35. Ass 5. Baron and Feme Disseisors Assise against the Baron sole abated 15 E. 4.15 Disseisin is made to anothers use the Disseisor is Tenant untill agreement 21 E. 4.53 Tenant is issuing out of Land of the Wife the Husband and Wife make a Rescous they are both Disseisors That as I have argued the Lessor enters his entry is congeable for a Moiety that is the Queen's part Tenant in tail makes a Feoffment to a Feme Covert without Licence the Husband dies the Feme waives Points upon the Statute AN Adventurer into Virginia is not within the Statute for although from time to time we send Trifles thither to exchange with the Savages yet the main drift and cause of our Traffick thither is for Plantation and Discovery and not for Merchandizing I hold the same of Greenland but not of Muscovia 2. He that is an Inn-keeper is within the Statute for he buys and sells again retail Ireland's Case in Smithfield 3. He was born in the Isle of Man the Statute is born within her Majesties Dominions or Denizen and I should have made small question but that one born within the Isle of Man is born in her Majesties Dominions if it were not for the Book of 11. H. 8. Kell fol. 202. It was found by an Office that the Earl of Derby dyed seised of the Isle of Man the Countess came and prayed to be endowed to whom Brudnell ex assensu Brook Fitz. Herbert and all the Kings Counsel said That the Office was void because the Isle of Man is not parcel of the Realm but the Isle
Gavelkind without Issue by the Custome there Reppes Case the Child was ripped out of his Mothers Belly and so after the death of the Feme the Baron could not be Tenant by the Courtesie But this Question rises upon the Case put in Pains Case Lands are given to a Feme and her Heirs Males and she hath Issue a Daughter and dies the Husband shall not be Tenant by the Courtesie for although a Man shall be Tenant by the Courtesie notwithstanding the Estate tail be spent yet his Estate must begin by an Heir heritable to the Estate Here in our Case the Son was the Heir and by him the Father would have been Tenant by the Courtesie to all other his Wifes Lands but not to this But although a Female cannot be Heir that hath a Brother yet since the Statute of Donis and by the Equity of that a Daughter may be Heir by Cook in Shelley's Case notwithstanding that he had also a Son fol. 103. and so here he may be Tenant by the Courtesie for this Land by the Daughter and of other Land by the Son if the Wife had been Tenant in tail of other Lands to her and her Heirs Males 5. Tenant by the Courtesie is and Tenant in tail in reversion makes a lease to commence presently hath Issue and dies Tenant by the Courtesie dies if his Issue shall avoid the Lease This Question is grounded upon the words of the Statute of 32 H. 8. which gives power to Tenant iâ— tail to make Leases Provided always that this Act c. shall not extend to any Leases to be made of any Mannors c. being in the hands of any Farmer or Farmers by vertue of any old Lease unless the same old Lease be expired surrendred or ended within one year after the making of the new Lease and upon this Clause hath risen many Questions as Tenant in tail makes a Lease for Forty years not warranted and Ten years after makes a Lease for Twenty One years to another warranted Within a year Tenant for Forty years surrenders Tenant in Dower surrenders to the Issue in tail upon condition Tenant in tail makes a Lease c. Tenant in Dower enters for the condition and dies and Tenant in tail dies if the Issue may enter Tenant in tail makes a good Lease for One and Twenty years Tenant for years surrenders upon condition Tenant in tail makes another Lease for One and Twenty years or three lives the first Tenant in tail enters for the condition broken By Philips the second Lease is good Cook contra in Elmers Case lib. 5. And my Question is whether Tenant by the Courtesie be within those words Farmers c. and he is not Foster in his Reading upon this Statute vouched one Richards Case That Tenant by the Courtesie was no such Farmer Points upon the Statute 1. IF a Feme Covert sole Merchant by the Custom of London shall be within the first Branch or Division of this Statute which is using the Trade of Merchandizing or getting their living by c. she is That there is such a Custom in London and mentioned and allowed in our Books Custom Br. 43. Ley Br. 74. 1 E 4. fol. 6. An Action being brought in C. B. for ones Board in London he would wage his Law not And the difference put between Customs which go with the Lands as Gavelkind Borough English c. and Customs of Courts good within the Town but not here but a recovery by such Custom may well be pleaded here in this Case Littleton Billing saith A Feme Covert sole Merchant by the Custom of London shall be impleaded sole here 35 H. 6. fol. 28. The Question was Whether the property of the Kings Jewells could be altered or forfeited because they were pawned and forfeited in London By Needham in the Exchequer Chamber upon an Information Custom Brook 5. and Pledges 28. 21 H. 7.17 Departure Brook 10. in case of a Departure because he had intituled himself by a new matter that is by a Custom which he might have pleaded 9 E. 4.35 A Feme removed by Habeas Corpus objected by Pigot that she and her Husband were both arrested for the Femes debt because a sole Merchant and prayed that she might be remanded for they have no remedy here this had been allowed and granted to him had not the Woman come in charged with a Reddidit So upon an Exigent The Customs of London have been confirmed by Parliament 1 E. 37. R. 2. and admit that she could not be sole sued here as in the Courts of London yet if a Contract made by her shall bind the Husband by the Custom the Husband shall be sued here and it shall be said the Contract of the Husband as 21 H. 7. 2. The Husband shall be bound by the Contract of his Wife if he command before or agree after and it shall be accounted his folly to suffer his Wife and so they be both Bankrupts To put cases how the Husband shall be prejudiced by the Act of his Wife 49 E. 3.25 The Husband shall not be charged with the debt of the Wife which she owed before marriage after her death but if an Action during the Coverture were brought against the Baron and Feme and Judgment were had against them and she dies the Husband shall be charged 20 H. 6.22 If the Wife buy any thing by the Husbands commandment or that by his allowance comes to his use he shall be charged 9 E. 4.24 Debt against Baron and Feme the Baron appeareth the Feme makes default the default of the Wife is the default of the Husband Nat. Brevium 120. G. A man shall be charged by the Contract of his Servant or his Wife if he gives them Authority otherwise not 12 H. 7.24 The Baron shall pay Mony in the Spiritual-Court which was charged for corporal punishment of the Wife for a slander And so it is at our Law for all Slanders and Batteries as we see every day 20 H. 7. Kello 61. A Feme Disseisor takes Husband who occupies the Land without notice or cognizance of the Husband yet he shall pay damages I conclude her Merchandizes are his by the Common Law and by the Custom 3. For all the Reasons aforesaid the Outlawry of the Husband shall make him a Bankrupt by the Statute and shall make the Wife a Bankrupt by the Custom and the Statute Which is plain against all using Trade of Merchandizing and getting their living by Buying and Selling and that if he be non solvent as he must needs be by his Outlawry then she must be non solvent but whether the Creditors by the Commission shall have the Goods or the King by his Outlawry That is a Question that comes not within the compass of this Case but I shall move that some other time 4. But I put the Husband to be dead before the Commission and whether his Goods or Lands shall be sold afterwards is a Question but
not properly upon this Statute for the death of a Bankrupt is not provided for by this Statute but plainly by the Statute of primo Ja. the last Clause and I think that even for the debt of such a Wife it shall be sold after his death and although I put it that a Feoffment is made to him by the Son which cannot work by way of Livery because he was Tenant in tail yet if the Donor will enfeoffe the Donee by Deed this will work to the increasing of his Estate by way of confirmation 7 H. 6. 5. If the Inheritance of the Feme shall be sold She hath power to forfeit it by Attainder or by Cessavit and by this Statute they may sell all the Bankrupts Lands lawfully that is by any lawful course of Conveyance depart with all 6. The Commission shall be in force against her after the death of her Husband for if her Husbands death shall not help his Heir a Fortiori it shall not help her that lives Also as the credit of the one was the credit of the other for who would trust a Woman whose Husband was known to be of no credit so the offence of the one is the offence of the other and the gains of the one the gains of the other 7. But if this Man and Woman be both Aliens then neither of them are within this Statute but another course must be taken with them by the Statute of H. 8. cap. The Woman was born upon the Coasts of Flanders and the Man in the Port of Diep and I hold them both born in the Kings Dominions for him that was born in the Port I mean in a Ship lying at that Port Town there is small question but it is within the Kings Dominions It is said of King H. 2. That he was the greatest King that ever was in England for he had all the Land and Sea under his Dominion from the Orcades to the Pireneian Mountains which sever France and Spain England and Scotland he had by the Norman Conquest they and Normandy were laid together by Hen. 1 Anjou Tourain and Main were the Inheritance of his Father the first Plantagenet Poytiers and Aquitaine he had by his Wife Britainy held of him as of his Dukedom of Britainy so as all the Sea Coast even from Calis to St. Sebastians in Spain was his so that the French King had no way nor passage to the Sea nor Jurisdiction in the Sea It is true that by the Attainder of King John for the murthering of Prince Arthur a great part of all this was seized by the King of France and in the end by R. 2. H. 6. and Queen Mary all the Land was lost but the Sea was never lost witness the Isles of Alderney which stand within three Miles of France and Gersey and Garnsey which the French to this day could never conquer and yet they speak French and indeed are all that is left to the King of England that was any part of the Dakedom of Normandy But the Coasts of Flanders is more doubtful for Flanders was never in the Jurisdiction of the King of England but yet they were never Masters of the Sea The Lord Admirals Jurisdiction that he claims is at this day as well of the German Ocean as in the Straights and we say the Dutchmen do us wrong to Fish in these Seas 8. But admit the Woman is an Alien yet I take it if her Husband be an Englishman they shall be both Bankrupts within the Statute he as I said by the Law and she by Law and Custom for as the Custom will allow her to be a sole Merchant if her Husband he a Citizen altho' she be an Alien so likewise shall her Estate be subject 9. But if he be an Alien yet all will be one for his Goods but his I ands are the Kings for if he will Trade and Traffiâ—ue by his Wife and her Credit being English and having Land and so have and enjoy the Priviledges and Benefits of a Subject by his Wives legitimation her Land and the Custom of the City there it is no reason but that he should be subject to such Laws as other Subjects are So as if the Wife be an Alien and the Husband a Subject or the Husband an Alien and the Wife a Subject they are clearly in both cases within the Statute for Goods but my Case is for Lands and in my Case I hold them both born within the Kings Dominions 10. But the greatest Question in my Case and a thing never yet put in uâ—e or questioned is if a Bankrupt is Tenant in tail if by the sale of the Commissioners the issue in tail shall be barred they shall for the words of this Statute and of the Statute of 26 H. 8. are all one The words of 26. are If any parsons shall be attainted of any High Treason by course of the Common Laws they shall forfeit to the Kings Majesty their Lands Tenements and Hereditaments wherein they have any Estate of Inheritance Our Statute is That the Commissioners by Deed enrolled may sell the offenders Lands Tenements and Hereditaments as well Free as Copy c. in neither of these Statutes are intailed Lands mentioned But we see in Walsingham's Case Plowd and in Dowghties Case and in common experience that an Estate tail is forfeited by 26 H. 8.13 But you will say in 26 H. 8. there be words more to carry it than in your Statute for that saith any Estate of Inheritance and an Estate tail is an Estate of Inheritance but our Statute hath words which tant amount for ours is of all Lands Tenements and Hereditaments which he or she may lawfully depart withal and Tenant in tail may lawfully by fine cut off his issue And it is set down for Law that a gift in tail with condition that the Donee shall not levy a Fine is unlawful a void and repugnant condition for it is said in Mary Portington's Case there be three incidents to Estate tails at the Common Law by Statutes and by Custom By the Statute of 32 H. 8. cap. 28. to levy fines and no condition can take away that from an Estate that is incident to the Estate as it is put of Dower Tenant by the courtesie 11. The last is upon my conclusion admit that the issue in tail could avoid the Lease whether the Vendee hath the same priviledge If Tenant in tail make a Lease not warranted and dies and the issue levy a fine before entry 33 H. 8. Dier The Conizee shall not avoid the Lease 8 E. 3. p. 22. The same is if he accept the Rent or confirm the Lease before entry The Lord Bedford's Case Cook lib. 7. The Kings Gardian shall avoid The King hath the Temporalities of a Bishop he shall avoid and all this is for the benefit of the Heir or Successor and so in our case it is for the benefit of the Bankrupt for in the end they must
account with him and he will say that by their means he ought not to lose his election and benefit of the Lease The first Case of the second Division A and B. Disseise C. who in consideration that A. at his request had married a poor Maid releases to A. and his Heirs to the use of B. and his Heirs Females of his Body they have issue a Son and a Daughter B. dies the Daughter makes a Lease to M. for one and twenty years rendring the ancient Rent and dies having issue E. a sole Merchant born upon the coasts of Flanders and married to F. a Citizen of London born in the Port of Diep A. grants the reversion to F. who is outlawed for the debt of his Wife and A. dies M. enters The Wife is a Bankrupt and the Land shall be sold charged with the Lease to M. Points upon the second Case of the second Division 1. TEnant in Gavelkind of a House purchases Estovers out of Land in Borough English to be spent in the House he dies his Brother makes partition if the Estovers shall descend all to the elder or shall be divided or if by the division of the Land they are extinct 2. Two Brothers in Gavelkind the one is executed for Felony if the Custom the Father to the Bough c. holdeth place between Brothers as between the Father and the Son 3. If one born in Virginia is a Subject born 4. If the exchanging of Gold for Silver which is an unlawful act is buying and selling within the Statute 5. If a Debt recovered by Information by an Informer makes the Informer to be a Creditor 6. If remaining in Execution six months at the Sute of the King makes him a Bankrupt Vpon the third Case 1. A Feoffment to two and they intermarry the Livery is made if the marriage interrupts the Livery 2. If the Lessee is remitted when he enters only to make Livery 3. A Feoffment to B. and a Feme an Alien how they shall take and what part the King shall have 4. If one naturalized is within the Statute 5. If a Church-Warden a Bankrupt keeps the Church if that be a keeping of his House or taking Sanctuary within this Statute The third Division 1. WHat shall be said a Departing of the Realm 2. A beginning to keep his House 3. An absenting himself 4. Taking of Sanctuary 5. A suffering himself willingly to be Arrested 6. A suffering himself to be Outlawed 7. A yielding himself to Prison 8. A departing from his Dwelling House A Grantee of a next avoidance presents A. by parol to a Benefice of 5 li. value per Annum he is instituted B. a Merchant and Farmer in Ireland and indebted by agreement with the Grantor and the Ordinary pays 10 li. to the poor and is made a Minister and presented A. dies B. is instituted and inducted and after is inducted to another Benefice and recovers glebe to the first of 20 li. value per Annum he renders himself to the Prison of the Admiral for Trespass in Ireland the Parishioners detain their Tithes the Grantee presents to the first Benefice and his Clerk is instituted The Incumbent is a Bankrupt within this Division and the Assignee of the Commissioners shall have Debt upon the Statute for the Tythes and the Farm in Ireland 3. Points upon the Statute of 31 Eliz. cap. 6. 1. IF a presentation in consideration that the Presentee gave money to the poor is Simony 2. If the Ordinary's makeing a Minister in consideon that he gave money to the poor makes the Benefice void immediately after his Induction 3. If the Parishioners may refuse to pay their Tythes to a Simonist One Point upon the Statute of 21 H. 8. cap. 13. of Pluralities ONe hath a Benefice of 5 li. value accepts a Benefice of 10 li. value and afterwards recovers Land to the first of 20 li. value per Annum whether this makes the first void by the Statute Three Points at Common Law 1. IF a Presentation by parol be good 2. One hath the next avoidance and presents and his Clerk is instituted and dies before induction if his turn be served 3. One Presents and his Clerk is instituted and before induction another presents the first Presentee dies the second is instituted if good Points upon the Statute de Bankrupts 1. IF a Merchant turning Priest and then become non solvent of his former debt be a Bankrupt within these words Using or exercising the Trade of Merchandizes 2. Whether lying in Prison in the Admirals Court for a Cause whereof they have no Jurisdiction be a yielding of himself to Prison and if they have Jurisdiction 3. Whether Creditors of Ireland may sue here that is whether a man may be Bankrupt here for Debts in Ireland 4. Whether Debts given by Statute for Tythes be liable to his Debts A Statute giving an Action of Debt this Debt may be transferred 5. Whether Goods in Ireland may be sold by Commissioners here 1. Grantee of a next avoidance presents A. by parol to a Benefice of 5 li. value and the Clerk is instituted The reason as it seems why one cannot present by parol is quia as Linwood saith Laieus potest variare and then if he name one one day c. dif qt Clericus laicus â—resentat Again it may be said that it is an Authority given to the Ordinary and Authority ought to be by Writing and so all things not manurable as to be Attorney grt of Rents Advowsans and Reversions But to this the Divines say they receive the Authority from the Parent but as they do confess that for Tythes Testaments and Marriages they had of the gift of the Laity so the Laymen have the nomination c. from them for before Churches were indowed with Lands c. But I intend this no question our Books are direct that an Infant may present So is 8 E. 2. Fitz. praes 10. If Gaurdian by nurture present it must be in the Infants name 27 E. 3. fol. 89. The reason is for he shall be Gardian of nothing but for that which he may account 26 H. 6. Grts. 12. One may present by a Letter Missive 19 E. 3. qua imp 60. For direct authority by Husey quod fuit concess the King may present by parol But Merchant of Ireland and indebted agrees with Patron and Ordinary that for 10 l. given to the Poor the one shall present him and the other make him Minister and here rises two of my Questions upon this Statute of 31 Eliz. The Statute names not Simony but saith if any for Money Gift Reward or Profit directly or indirectly c. whether giving 10 li. to the Poor to be presented be Simony 2. M. Justice D. and others that have read here before me do vary all agree that to do charitable acts as to build a Bridge marry a poor Maid preach three times a Week to teach a School is Simony But to give to the Poor
some say it is not for Bona Ecclesiae sunt partimonia pauperum the Apostles distributed communes distributiones quotidianas distributiones at Lincoln to this day Linwood Sacriledge But I hold it is for as in our Case if he pay it before hand it goes out of his own Purse if afterwards though it go out of his Benefice yet it is to be intended this is benefit to the Patron for since the Statute of 39 Eliz. cap. 3. made for the relief of the Poor the more the Parson gives the less the Patron needs give and Charity ought to be voluntary and not for hope of a Benefice or a Reward But I will agree that if it had been in consideration that he shall maintain the Patron if he be at any time in want during his life this is no Simony Patronum faciunt dos edificatio fundus Patrono debentur honos onus emolumentum Linwood fol. 157. De beneficiis est onus alendi Patron Ecclesiae ubi ad summam pervenit paupertatem Ergo c. But this is likewise given to the poor to the end that he may be made Minister Whether this be Simony I think this is Simony in the highest degree and the very same which Simon Magus would have committed for he offered the Apostles money to be admitted into the Ministery he knew and saw that they received nothing to their own private use all things were common with them and as I said they distributed to every man as he had need yet you all know how he was answered and what became on him even eo quod voluit and yet non potuit quod voluit facere malum But the Statute for gift reward or benefit to the Ordinary or any Friend of his and so thought to be Simony in Spiritual Law yet it is not within the Statute yes indeed it is for even as they say Si quis aliquid dederit alio quam praesentandi aut ordinatori si alias beneficium non esset habiturus est Simonia But then saith the Statute if such a Minister be to be presented instituted and inducted into any Benefice for seven years after that immediately after the induction the Benefice shall be void and it shall be lawful to the Patron to present another But here is the Question upon this Statute by the first branch the King is intituled by the second the Patron but the Kings interest makes it no induction at all A. dies and B. is instituted and inducted 4. But admit here is no Simony in the Case then riseth another Question Whether here be any good presentation or not Where the Case is no more but this one presents and his Clerk is instituted one other presents the first Clerk after institution and before induction dies whether this presentation when another was instituted be good at all Or whether his death before induction have made it good whereby the second may be instituted and inducted It is plain if one present in the life time of the incumbent the presentment is void 22 H. 6.27 By admission and institution one is Parson before induction and Linwood saith he hath jus ad rem in re But 5 Eliz. Dyer he hath jus ad rem but not in re and Hare and Buckley's Case he is like a Tenant in Dower that hath Judgment but no Execution Or like a Copy-holder after a Surrender and before admittance but neither to charge nor bring action But as in my Lord Digbies Case in Coke l. 4. A Parson having one Benefice is instituted into another and then gets a dispensation and then is inducted the induction shall so relate that the dispensation is of no force So his death shall make that he had by the institution no interest at all but that the second presentation is good and consequently the induction But if in the life time of A. B. had been both presented and instituted the institution had been meerly void and then the induction could never be good 13 Ja. B. R. if it be not in the Kings Case 5. Afterwards B. being inducted into the Benefice of 5 l. value is inducted into another and then recovers Lands of 20 l. value to the first whether this first be void by the Statute 21 H. 8. and I take it it is not The Statute is That having a Benefice of 8 l. accepts of another and is inducted into the same then the former Benefice shall immediately be adjudged to be void And altho' I am of opinion that this Law shall be taken strict and even extended by equity because it is to repress a great inconvenience in the Church and Common-wealth That yet nevertheless this word having shall be construed as it is in the Statute of 32. of Wills in Buttler and Bakers Case pro ut the Case so here And here is also this word immediately which is much inforced there because the Land could not descend immediately till disagreement A man infeofts a Feme Covert and then grants rent charge the Husband dies she waves if she had agreed it would have avoided the charge and yet the disagreement shall not make it good But I cannot compare it to a better Case than the Case of a Ward the Rule is If Tenant in Knights service die seised his Heir within Age shall be in Ward with this addition to the Rule that if he were disseised and might enter or if he had made a Feoffment upon Condition and the Condition were broken if the Lord or the Heir enter he shall be in Ward or if the Tenant for Term of Life of a Ward make a Feoffment and the Heir enter the Land shall be in Ward So be the Books of 17 ass 18 ass 18. 19 E. 3. Gard 114 and 48 E. 3. fo 8. But 12 H. 7.20 Frowick if the Heir recover by action Auncestrell he shall not be in Ward 15 E. 4.13 Urfwick chief Baron the same or if he pay money to redeem Land and enter for the Condition performed he shall not be in Ward so here I hold the same Rule if B. had been disseised of parcel of his Glebe or that it had been forfeited for a Condition broken the first Benefice would have been void but not in this Case I hold that if his Rectory were a Signiory and but of 5 l. value and then he accept a second Benefice and afterwards by the Escheat of a Tenancy it had come to be of 8 l. or 10 l. value it shall not in this Case be void 6. But this Clerk was a Marchant and turns Priest and now leaves his old debts unpaid whether he can be a Bankrupt because of the words using the Trade c. He is ruled in John Quarles Case my Lord Chief Justice being Recorder was a Commissioner for he left his Marchandizing and was turned Gentleman 7. Whether yielding of himself to Prison in the Admirals Court in an action whereof their Court hath no Jurisdiction be a yielding himself
to Prison within the Statute The Admirals Jurisdiction is limitted by the Statute of 13 R. 2. cap. 5. that they shall not meddle with things done within the Realm scil this Realm 15 R. 2. cap. 3. de South les points 2 H. 4. cap. 11. gives an aection and double damages There was a Case in the Common Pleas. I take it the Admiral hath no Jurisdiction to hold Plea of a thing done upon the Land in Ireland for he is Admiral both of England and Ireland so the King hath his Justices there for to give justice for trespasses and offences there done first for that these Statutes are in force in Ireland as all other are which were made before 1 H. 7. And a Prohibition will lie here in the Kings Bench if they hold Plea of a thing whereof they have no jurisdiction although they cannot hold Plea thereof themselves as we see in the Orphans Case in Coke li. 5. and these Courts ought to respect them of Ireland as subordinate to them for 34 Assises Errors here upon a Judgment there 31 H. 8. Bro. Prohibition 17. A Prohibition lies against the Admiral when he supposeth a thing to be done upon the Sea which was done upon the Land 8. The Parishioners detain their Tythes The Question is A man is presented by Simony the Statute is the Presentation the Institution and Induction are all void But it is to give title to the King to present But to the Parishioner he is dominus pro tempore as if he had been meer laicus yet Sacraments ministred by him are of force The Church and the Minister are compared to the Husband and Wife A woman is married to one Husband and in facie Ecclesice she is afterwards married to another as the Priest is actually in facie of the Country inducted 17 Ass 32 H. 6. The Feme with her second Husband levy a Fine none can avoid this Fine but the right Husband no more can any displace the Simonist but the King And a Prohibition hath been awarded against a Parson supposing he was a Simonist and upon advice and consultation the Parson Closes B. ver Simony in the Exchequer another presented by the King and yet all one for the mean profits 9. The Grantee presents to the first Benefice question whether I grant one Primam advocationem proximam he presents and his Clerk is instituted and dies before induction whether his turn be served It is 38 E. 3.36.6 vide lib. 10. That Commissioners here may sell a Bankrupts Goods in Ireland and Irishmen may sue the Commission 11. The first is within the express words of the Law scil being also a Subject born The second is proved by the Case of the Merchants of Waterford 2 R. 3.11 An Act of Parliament in England shall not bind men of Ireland for their Lands but for things transitory it shall as the Case was there for shipping of Wools from Waterford to carry to other places than Callis Also a man attainted here of Felony or Treason shall lose his Lands in Ireland My Lord of Essex and Ororkes Case 12. An action of debt upon the Statute by the Statute of primo Jac. which gives not only all things in Action but also gives an Action to the Assignee in his own name but he must declare specially 1. A. makes a Lease of a Rectory to the King for another mans life and grants the reversion to B. a Merchant to the use of B. and C. the King grants his Estate to D. E. enters and marries with the Merchant C. dies D. releases to B. who being non solvent keeps his House the Tythes are sequestred for not repairing of the Quire the Creditors grant a Letter of License to B. for six months E. dies D. enters he for whose life dies B. renders himself to Prison for a Fine assessed before the High Commissioners six months past B. Is a Bankrupt within this division and the Moiety of the Rectory shall be sold and all the goods sequestred 1. The King tenant pur auter vie the lessor grants the reversion if good without Atturnment It is good 2. A grants to B. to the use of him and C. if they are Jointenants or Tenants in Common they are Tenants in Common 3. Tenant for life is disseised by a Feme sole she marries him in the reversion the disseisee releases to the Husband it is good to extinguish his right 4. What is wrought by the occupancy nothing 1. If a Bankrupt procures a Letter of License for six months and within the time is a Bankrupt again if he shall be a Bankrupt ab initio He shall be 2. If Imprisonment by the High Commissioners is within the Statute It is 3. If the Goods of a Bankrupt sequestred shall be sold They shall 2. A. Devises 20 l. to B. and C. and 200 Acres of Land to D. and E. his Executors D. proves the Will E. wastes the assets and dies D. a Merchant makes a Feoffment of 99 Acres to F. D. is non solvent and outlawed in Ireland B. and C. joyn with the Creditors in suing a Commission D. Is a Bankrupt within this Division and 101. Acres shall be sold and B. and C. shall be relieved 3. Tenant of the King makes a gift in tail and dies having issue two Daughters within age the Donee makes a Feoffment to Coparceners office is found and the Land being seised for the King he grants it to H. a Merchant as long as it shall be in our hands H. marries the younger and is non solvent and suffers himself to be arrested at the sute of a Son born the other Daughter dies H. confesseth the action and is imprisoned in execution for the damages the Commissioners sell the Interest of H. All this is found by another office H. Is a Bankrupt within this Division and the Vendee shall have an Ouster le main 1. Discontinuee makes a Feoffment to issues in tail within age if they are remitted for they are not Tenants in Common but Jointenants 2. Tenant of the King makes a gift in tail and dies his Heir within age the Discontinuee infeoffs the Infant if he shall be in Ward because a Purchasor notwithstanding the Remitter 3. Tenant in tail discontinues hath issue a Daughter within age and his Wife with Child with a Son and dies the Discontinuee infeoffs the Daughter the Son is born if he shall have the benefit of Remitter 4. If the Interest of the King by an office shall be devested by another office without Petition or monstrance de droit 5. If a Merchant being a Discontinuee confess an action of trespass at the sute of the issue in tail and is taken in execution if it make him a Bankrupt 4. Grantee of a next avoidance presents A. by parol to a Benefice of 5 l. value per Annum he is Instituted B. a Merchant and Farmer in Ireland and Indebted there by agreement with the Grantor pays 10 l. to the
Poor to be made a Minister and to be presented A. dies B. is Instituted and Inducted and after that is Inducted to another Benefice and recovers Glebe to the first of 20 l. value per Annum and after he is non solvent and renders himself a Prisoner to the Admiral for a trespass in Ireland the Parishioners detain their Tythes B. Is a Bankrupt within this Division and the Assignee of the Commissioners shall have debt for the Tythes and the Farm in Ireland 5. Tenant in tail is attainted of Treason and pardoned the King grants and restores to him the Land in tail the Donor Releases Tenant in tail suffers a recovery to the use of B. a Merchant and hath issue and dies the release is Inrolled B. is made Steward of the Tower of London the issue in tail enters B. is non solvent and keeps himself in the Tower B. Is a Bankrupt within this Division and the Commissioners shall sell the Land 1. If the gift is within the Statute of 34 H. 8. cap. 20. 2. If the reversion be good to the King without Inrollment 3. If the Inrollment shall Relate 4. If the Tower is comprehended within the Statute or the Equity re vera 6. A. Feme sole Tenant in tail makes a Lease for thirty years to B. a Merchant indebted to C. and D. she marries E. hath issue F. A. and E. levy a Fine to G. which is reversed for nonage of the Wife B. lies in Prison for six months in execution for the debt of C. and in that time becomes indebted to the Gaoler for Victuals the Wife dies E. enters claiming as Tenant by the Curtesie and surrenders to the issue D. assignes his debt to the King a Commission is awarded all this is found by writ of Prerogative and that B. had nothing B. Is a Bankrupt within the Statute but the King shall have the Term and neither C. nor D. shall be relieved 9. Tenant in tail makes a Lease for thirty years and enters into Religion the issue accepts the rent and dies having issue the Father is deraigned the Lessee being a Merchant at Constantinople becomes indebted to English Merchants there and turns Turk the Father dies the issue of the issue enters The Lessee is a Bankrupt within this Division and the Term shall be sold Cases upon the fourth Division What Lands Tenements or Hereditaments of a Bankrupt the Commissioners may sell THE King grants the Mannor of S. to A. and his Heirs to be holden by the service to be a Justice of the Peace within the Mannor A. Bargains and sells to B. and C. his Wife and to D. and after A. grants the services to I. S. a Tenant to B. B. and C. are divorced causa Praecontractus of C. with I. S. D. is a Bankrupt a Commission is awarded I. S. attorns D. enters and manumits a villain D. is imprisoned in his House and is felo de se his Heir within age enters I. S. dies without Heir B. and C. intermarry the Deed is inrolled office is found The Commissioners may sell all the Land and the Goods of the Bankrupt except the Villain 1. The King grants Land to be holden by the service to be a Justice of the Peace What Tenure this is 2. A Bargain and Sale to Baron and Feme and a Stranger and the Baron and Feme are divorced before Inrollment how they shall take 3. One sells a Mannor and before Inrollment the Bargainor grants the services of I. S. to one of the Vendees and he attorns If the Inrollment shall be good for the rest to others 4. Bargainee of Land holden in Capite enters and dies before Inrollment If his Heir within age shall be in Ward Vpon the Statute 1. A Bankrupt hath a Seigniory a Commission is awarded the Bankrupt dies a Tenancy Escheats If the Seigniory or the Tenancy shall be sold 2. Tenant in Capite is a Bankrupt and dies his Heir within age and in Ward If the Land can be sold 3. A Bankrupt hath a villain and manumits him If the Commissioners can after sell him 4. A Bankrupt is felo de se If the Goods shall be sold notwithstanding the interest of the Almoner The King grants a Mannor to A. to be holden by the service to be a Justice of Peace within the Manner the Question is what Tenure that is if grand serjeanty Petit serjeanty Tenure by Knights service in Capite or Tenure by Soccage in Capite Neither at the Common Law nor at any time before the Statute of Quia Emptores terarum there was no Officer in this Common-wealth called by the name of a Justice of Peace and therefore there can be no Authority of any ancient tenure of that nature But there were divers Officers who by virtue of their Offices and as incident to their Office were Conservators of the Peace as Sheriffs Coroners Constables and all the Justices of the Kings Bench. 17 ass 5. A Sheriff or Coroner may take an Appeal a fortiori in the Kings Bench for there Scot saith That they are the Soveraign Coroners of the Land But till 18 E. 3. cap. 2. the name of a Justice of Peace was not known But whether such a tenure may be created at this day is a Question and I think it may for the King is not bound by the Statute of Quia Emptor as it is plain by the Books of Com. 240. Bark Case He at this day may create new tenures and Marrow in his Book of a Justice of Peace saith That if the King grant a man Land to be holden by being a Conservator of the Peace he is a Conservator by tenure but he doth not determine what Tenure it is Mr. Lambert vouches a Record at Chester that one Urianus de Sancto Petro that held medietatem serjanciae pacis and this he calls it Tenure in Capite but rather as an Executioner than as a Judge It is thus material to the end of the Case what Tenure this is that if it be Knights service then here 's a Wardship and then it will be a question whether the Kings interest will prevent the authority of the Commissioners if in Soccage in capite then that point is cleared Some would have this to be grand Serjeanty because it is to be performed in person and that person is to represent the Kings person and if by Littleton it be grand Serjeanty to be a Chamberlain of the Exchequer who is but a Keeper as it were of the Kings money it is grand Serjanty much more to be a Keeper of the Kings Peace Others would have it Soccage in Capite for it is a Tenure must go with the Land and so to a person uncapable of the Office as in this case to an Infant or to a Woman who cannot be a Justice of Peace And this is an Office which cannot be transferred no more than as it is in Kelloway in his cases incerti temporis fol. 151. If the Office of a Sheriff
or Coroner be granted to one it cannot be granted over for such an Officer ought immediately to attend on the King without any mean for the office of a Sheriff as Sir John Davies saith well c. for life and I am of opinion that if this grant had been made before primo of E. 3. it had been a Tenure by grand Serjanty for then the Tenant could not alien without license upon pain of forfeiture But now it is otherwise so as I am of opinion that this grant being now made and in fee it was a tenure by grand Serjeancy for life in the first Patentee and his Patent was his Commission But when he doth alien or die it will be a soccage in Capite And yet if it should turn to be a Tenure by Knights service in Capite yet I shall maintain the case at latter end that the Commissioners may sell the land notwithstanding that the heir of the Bankrupt is within age and in Ward 2. A Bargain and Sale to Baron and Feme and a stranger and before inrollment they are divorced the Question is how they shall take as three several Jointenants or each shall have a third part or whether the husband and wife shall be jointenants for either of them a quarter part and the stranger a jointenant with them for a half part 35 Ass 15. It is plain that if one make a feofment to the husband and wife and a third person the Husband and Wife as one person take the one Moiety and th' other person the other Moiety vide Librum 7 H. 4. fol. 17. That they that be divorced the divorce will change and alter their estates as if Lands be given in tayl speciall to an Husband and Wife and then they are divorced the estate tayl is turned to a freehold and they are made jointenants by dividable Moieties whereas before they held by intireties and yet if they marry afterwards again they are Tenants in tayl again 3. 39 H. 6.43 The difference is taken between a feoffment before coverture and after for if it be before and then they intermarry if the Husband alien all and die the Feme shall have a Cui in vita but for a Moiety contrary if it be after marriage Copledikes Case 3. rep Baron and Feme jointenants the Baron suffers a recovery of all and dies it shall be good for nothing against the Wife But there have been many Questions raised how they shall take when a Conveyance is commenced before coverture and finished after or as our Case is when the Conveyance is commenced during coverture and finished after Divorce as if a reversion be granted to a man and Feme sole and they intermarry and the tenant attorns they shall take by entireties because by the Book of 48 E. 3. The Attornment shall not relate and yet if a Feoffment of a Mannor be made to a man Feme sole and they intermarry and then the Tenants attorn they shall be in of the whole Mannor by Moieties because in that case the Attornment will relate as it is proved by Longes Case which was Pa. 31 Eliz. Rot. 20 24. One made a Feoffment of a Mannor to which an Advowson was appendent the Church became void and the Tenants attorned it was adjudged that in this case the Attornment should relate and that the Feoffee not the Feoffer should present But in our Case here be two relations together the Relation of the Divorce and Relation of the Inrollment I have shewed that the Relation of the Divorce shall change their Estates and the Relation of the Inrollment will give it them as they were to take at the time of the ensealing of the Indent 6 E. 6. Bro. 6 E. 6. two Jointenants and one Bargains and sells all the Land and before Inrollment the other dies yet no more shall pass than the Party had at the time of the ensealing of the Deed. Surely the Deed relates to make them in by Intireties and the Divorce to make them Jointenants but shall this Relation of the Divorce change or alter the Estate of the third person And I take it this nothing at all concerns the Stranger nor shall it alter his Estate but it shall be as a matter of estopel binding the Baron and Feme but not to be respected of estrangers and this is proved by the writ of Cui ante divorcium for there the Feoffment of the Husband stood as a discontinuance till it was defeated Lex non oberit tertio extraneo prodesse alteri nemo tenetur sed obesse vetatur 48 E. 3.38 Tenant for Life the remainder for Life the remainder in Fee the first Tenant for life makes waste he in remainder in fee releases to him in remainder for life this shall not make him who was the first Tenant for life to be punishable in waste 43 E. 3.17 An appeal is brought against two as Principals and an exigent is awarded now the King is interested in their Goods they appear the Plantiff declares against one of them as principal and against the other as accessary the second desires to have restitution of his Goods he shall not for alteration of the plaint by and between the Plantiff and Defendant shall not by relation of any matter ex post facto prejudice the King or a third parties interest But before this Divorce A. grants the services to I. S. a Tenant to B. the Husband here ariseth three Questions at once 1. If one bargain to two and afterwards levies a Fine or Feoffment to one of them whether it be not such a disagreement to the former Contract as by that bargain the other shall have all and the Feoffee nothing and I think the other shall have all and the Feoffee or Conizee nothing 2. Whether if one bargain for a Mannor and before Inrollment the Bargainor grants by Fine or Feoffment parcel of the Mannor to the Vendee whether this destroys not the bargain for all It doth 3. There is Husband and wife and the Husband purchases by bargain and sale to him and his Wife and their Heirs and before Inrollment the Husband takes a Fine or a Feoffment of all and then the Deed is inrolled what shall the Wife have I think she shall have nothing For the first and for all these questions we must agree upon this ground which is set down in Hinds Ca. Coke li. 4. That if a man buy Lands by bargain and sale and before Inrollment he accepts of a Fine or a Feoffment he is in by the fine and the Inrollment is of no force The next rule is That if Lands be conveyed to two and the one will disagree in Court of Record or disclaim in the tenancy all vests in the other 17 E. 3. fo 6. a Placito 18. A gift in tail was made to the Husband and Wife and they had issue and the Baron died the Wife disagreed all descended to the issue 10 E. 4. fol. 13. The Tenant infeoffs
opinion that after the death of her Husband she shall be in bondage again quod Burton negavit but if she marry the Lord then by all she is infranchised for ever Britton fol. 78. She is infranchised for ever Natura brevi B. 78. G. I will conclude with the first authority by Fitzherbert Brittons opinion seems reasonable if she divorce not her self or acknowledge not her self in Court of Record in favour of Liberty and because she and her Husband are but one person in Law and of the same condition with him There be divers things favoured in Law as Womens dowers the King Lords Holy Church ancient Records Devises Infants Purchasors and possessions But next life Liberty of all things is most favoured 18 E. 4.6 No amercement lies against the Sheriffs return yet in a writ of Libertate probanda if the Sheriff returns that he hath no wrît of nativo habendo depending before him one may offer the contrary in favorem libertatis Quia propensiores esse debemus ad liberandum quam ad obligandum It hath been made a Question upon the Statute 39 Eliz. that appoints the Lands Tenements and Hereditaments of Accomptants to be sold which they had at the time when they fell into Arearages whether if the Accomptant shall manumit a villain he shall be nevertheless sold and the best opinion of him that read upon the Statute in this place was that his liberty could not be revoked for here were neither Lands Tenements nor Hereditaments and so here 27 Assizar Enfranchisement for a time by act in Law but if the Lord will manumit his villain for a day by his voluntary grant he is at liberty for ever The Tenant dies without heir the Question is this A Lord is a Bankrupt and dies a Tenancy escheats if the Seigniory or the Tenancy shall be sold I take it as I have concluded the Tenancy that is the Land shall be sold first see the words of the statute Primo Jacobi The Commissioners may proceed in the execution of the Commission in such sort as they might have done if the party Offender were alive this makes an end of the question for if he were alive and the Tenancy escheated the Land should be sold And therefore I shall not need to put you Cases at Common Law where the Tenancy escheating shall be bound to that where the Land was tyed 6 H. 4.1 Tenant in tail discontinues and dies and leaves a Seigniory to descend to the issue in tail a Tenancy escheats in a Formedon by the issue the Tenancy shall he Assets 14 H. 8 4. Fitzherbert cestui que use of a Seigniory a Tenancy escheats the Feoffee shall hold the Land to the use of the Feoffer 46 E. 3.4 Tenant in tail of a Seigniorty a Tenancy escheats Tenant in tail discontinues and dies without issue the Donor shall have a Formedon of the Land 3. A Commission is awarded D. is felo de se the Question a Commission is awarded and the Bankrupt becomes felo de se Office is found if the Almoner shall have his goods or the Commissioners may sell them for the Lord Almoner hath all the goods and chattels of Felons of themselves and all Deodands as appears by our Books and his Charter which I have seen 6 E. 6. Dier fol. 77. The King leases Richmond fee with all Deodands and after grants to the Almoner the term expires the grant to the Almoner void because the other lease was not recited 2. Mar. Dier fol. 107. The King grants to the Archbishop of Canter Deodands in D. and to the Almoner all in general Hales is felo de se Plow Dame Hales the Bishop is attainted the King shall have the Lease It is true as it appears in Dame Hales case That when two titles come together that is the Kings and a subjects the Kings shall be preferrd As if a villain be a fool natural the King not the Lord shall have him If a villain be felo de se the King not the Lord shall have his goods Then a Bankrupt is felo de se shall the King or the Creditors have his goods I think the Creditors For if the Bankrupt in life had no authority to dispose them as it is in Tibnabams Ca. much less shall he dispose of them by his death And admit the Almoners Patent were before the Statute of primo of the King yet both the King and the Almoner by Act of Parliament have given away their title to the Creditors 4. I have already argued that the heir of the Bankrupt is in by descent now the Case is he is within age and an office is found and that the Land is held of the King in capite the Question and the hardest question in my Case is whether after an office of all this matter found the Commissioners may sell And I think they may For this office finding the whole matter notwithstanding a tenure in capite a dying seised of the Tenant and the minority of an heir is found yet nothing vests in the King For when an Act of Parliament shall appoint the Land to go another way and the course taken according to the Statute is found in the Office the King his Officers in the Law shall consider of all the whole matter in Concreto and not in abstracto and shall challenge nothing for the King which belongs not to him as is seen by a Devise made by Tenant in capite according to the Statute of 32 H. 8. of Wills 5. The Commissioners imprison the Bankrupt in his own House Two questions first whether the Commissioners may imprison him by the Statute of 13. which gives them authority to dispose of his body as they shall see good in their discretions when as the Statute of primo appoints an imprisonment upon a special cause of refusal as if there were no Law general to imprison him in divers cases expressa nocent Vide my Moote Book I think they may It is true that Leges posteriores priores contrarias abrogant but this is not a contrary Law but a strengthning and a confirmation of the former Law in a particular nor doth it revoke the former no otherwise than that where by the Statute of 27 H. 8. Leases shall be under the Dutchy Seal This doth not take away the Authority of the Great Seal but that Grants may pass under the Great Seal since the Statute And for sureness now a days they put many times both Seals to them 2. Question is whether this Imprisonment in his own House be such a Dealing in the Commission by the Commissioners as is intended by the Statute of primo That his dying afterwards shall not alter the Case For if it be a lawful Imprisonment then here is a Dealing if not contrary for Ea possimus quae jure possimus for as it is said by Herle for a Maxime that all Leets Hundreds and in 2 E. 3. all Ports and Cities are the Kings and the Lords
have but the use and profits of them under the King so it is said all Gaoles are the Kings Prisons and none others of the Land for life and member belongs to him only and the Lords have only the regard and that is the reason that in all Corporations in their Charters they always have a Grant and liberty to have a Prison Auditors by the Statute of W. 2. cap. 11. may send the Baily found in Arrearages to Prison by the Book it must be to the next Gaol though it be in another County otherwise an Action of false Imprisonment lies So our Commissioners must be careful to pursue their Commission but because the Statute saith they may dispose of his body at their discretions therefore to stay him in his own House or in one of theirs till he be further examined I think it not amiss although I have heard that some Commissioners have been blamed for not sending him to the Gaol 1. A. makes a Feoffment in Fee to B. by livery within the view B. Covenants with C. to stand seised to the use of D. his Son A. enters and makes a Feoffment to B. D. enters and makes a Lease for years to E. a Merchant upon condition to have in Fee E. is a Bankrupt C. disagrees to the Contract E. becomes a Recusant Convict and hath not Lands sufficient to pay 20 l. a Month the Commissioners sell the Land the King seizes the Term the condition is performed The Vendee shall have the fee-simple Points 1. IF livery within the view may be countermanded by livery in fact 2. If the Feoffee to whom livery is made within view before entry Covenants to stand seized to another use and after enters if the Covenant good that is if by his entry he by relation is in from the time of the Livery 3. If a covenants with B. to stand seised to the use of C. and C. enters and B. disagrees to the Covenant if the Land shall revert to A. 4. If a Bankrupt hath a Lease for years upon condition to have fee if the Commissioners may sell the Land with the possibility 5. A Bankrupt hath a Term and is a Recusant convict if the King or the Creditors shall have the Term 2. The King Lord Mesn and Tenant of Borough English Land the Tenant by License of the King to create Tenures devises the Land to A. in fee to hold of his Heirs by Knights service A. is attainted of Felony and devises the Land to his eldest Son a Merchant Bankrupt the Mesn enters the younger Son reverses the Attainder the eldest waives the Devise The Commissioners may sell all the Land Points 1. IF the King may grant to the Tenant of another to create new Tenures in prejudice of the Mesn as to Escheats 2. If Tenure in Borough English which is always Soccage may be altered into Tenure in Knights service 3. If it may be altered as to the Custom to descend to the youngest 4. If it may be altered as to the Tenure but not as to the Custom if the youngest Son shall be in Ward 5. Upon the Statute of Wills 32 H. 8. Lord and Tenant the Tenant is attainted and Devises his Land and dies the Heir reverses the Attainder before entry of the Lord if the Devise is good 6. One Devises Land to a Merchant and he becomes a Bankrupt and waives the Devise if the Commissioners may sell the Land 3. A Merchant makes a Lease for Life to an Infant the remainder to the King for Life of A. B. enters and dies seised the Deed is Inrolled A. dies the Infant enters the Lessor in consideration of marriage covenants to stand seised to the use of himself and his Wife and their Heirs the Infant at full age makes a Feoffment the Heir of the Disseisor enters the Lessor is a Bankrupt the Commissioners sell Lessor dies the Feme waives This is a good Sale of all the Land in Possession and Reversion Points 1. WHether the Inrollment doth not relate to avoid the descent 2. Whether the Entry of the Infant reduce the reversion 3. Whether the Sale not being good against the Wife is made good by her waiver Vide ante the Principal Case 5. One grants a Rent Charge to a Physician and his Heirs pro Consilio impenso impendendo the Physician is his own Apothecary and becomes non solvent for Drugs and Simples which he used in his Art a Commission is awarded the Physician keeps his House for fear of Arrests the Physician brings a Writ of Annuity and recovers by erroneous Judgement the Commissioners sell the Rent the Recoveree reverseth the Judgment the Physician dies This Sale of the Commissioners was good for this Rent but not to take effect during the Life of the Physician Points 1. IF an Annuity in Fee be granted pro Consilio may be sold 2. Whether he have any Election after he is Bankrupt 3. Whether the bringing of this Annuity which is reversed be an Election 6. One makes a Gift in Tail rendring Rent and dies the Rent is arrear a Disseisor enters and levies a Fine five years past the Heir of the Donor is a Bankrupt The Commissioners shall sell the Rent and the Arrearages Three Points upon the Statute 1. UPon the Statute of Fines the Second and Third upon the Statutes of Limitations and Bankrupts 1. Upon the Statute of Fines that is if Fines of the Land shall be a Bar for the Rent 2. And 3. Upon the Statute of Limitations If Commissioners may sell when the Party was concluded by the Statute of Limitations 6 Jacobi Banco Regis Executors notwithstanding no Seisin in their Testator by fifty years shall destrain by the the Statute of 32 H. 8. 7. A. and B. Tenants in Common of the Mannor of D. and Jointenants of the Mannor of S. They by Deed Poll bargain and sell Common of Pasture within the Mannors for a Cow to C. and his Wife and to the Heirs of their two bodies begotten C. the Husband grants the Common to E. in Fee the Wife dies without issue E. is a Bankrupt E. had Common for a Cow but it is neither Land Tenement nor Hereditament which may be sold by the Commissioners 8. The King grants to I. S. that he only for his life shall have the Importation of Steel he assigns his Patent to I. N. a Merchant I. N. becomes non solvent and after acknowledges himself to be a Villain regardent to the Honour of Hampton-Court a Commission is awarded I. N. Is a Bankrupt and the Commissioners may sell all his Lands and Goods but not the Monopoly 9. A. and B. Jointenants Covenant for natural affection to stand seised to the use of C. for life C. enters and B. dies C. dies the Heir of B. makes a Gift in Mortmain the Lord before entry bargains and sells the Seigniory to I. S. who enters and makes a Gift in Tail the remainder to I. N. a Merchant Tenant in Tail is
Commissioners may sell then there is their Authority the Vendee shall compound that is a second action which must be done if it may be done Hillary 38 Eliz. A Grant was made to the Mayor and Commonalty of London that the Mayor should have the search c. of all Handicrafts and should punish them but granted no Court where the same should be punished this was good for to search and to discover but void for him to punish but it must be punished as it may be otherwise The Statute of 5 Eliz. cap. 13. of Highways saith Who comes not at the common days shall forfeit and orders that the offence shall be presented at the next Sessions c. Upon pain of Forty Shillings no Certificate is made yet the offence shall be punished 3. But now we are upon the point of Fines a question rises in this Case whether two Fines or but one or no Fine be due to the Lord and I think a Fine is due Plainly two Fines should have been paid one to the Lord of the Mannor upon the surrender of A. to C. and another upon the sale by the Commissioners as it is in the 4th Report fo 22. the heir surrenders before admittance the Lord shall have two Fines But in Hubbard and Hammond's Case it is said no Fine is due to the Lord before admittance for the admittance is the cause of the Fine and if after admittance it be denied it is a forfeiture But I take it in this case the Lord shall have no Fines for the Statute must have a reasonable construction and indeed for all parties according to equity and in all Statutes where the ordering of things is referred to mens discretions equity and good Conscience ought to respected and therefore it is said 3 E. 3. An accompt ought to be amended by the Auditors according to equity and good faith But what remedy hath the Lord for it 4. But here a Fine is tendered and refused now the question is double 1. What remedy generally 2. Whether it be lost for ever or not For the first if it had been in a case that the Lord could have admitted him he should have had the ordinary remedy as all Lords have for their Fines that is upon presentment of a Surrender or of the death of a Tenant or of sale by Commissioners the order is to call the Party that should be admitted and if he come not in time to seize his Land But here can be no Calling for here 's no Court Surely I think as the Vendee may enter without admittance so the Lord may enter again upon him and seize the Land till his Fines be paid but these Fines have been tendred and refused We see that tender and refusal in many cases is peremptory as Littleton in case of Mortgage 27 E. 3.88 Un distr pur dam. fesant si avoyde the Tenant pleaded that before the taking at the taking and after the taking he tendered sufficient amends and the Avowant refused he hath lost his damages and shall pay damages c. 22 Hen. 6.44 A Man is bound in an Obligation to stand to the award of J. S. he awards that the one shall release the other who tenders a release the other refuses in Action of Debt sur le ob tender and refusal is a good plea sans dira uncor Prist But yet in the same case it is put That if Money had been awarded and tendered and refused the Bond had been saved but the duty had remained 45 E. 3.9 The Lord destrains the Tenant tenders the Lord refuses yet the Rent is not lost but at another time the Lord may distrain Brian If the Tenant tender his homage and the Lord refuse he cannot destrain but upon a request if the Tenant refuse he may destrain So here the Tenant tenders his Fine the Lord refuses I take it the Fine is not lost but after a new request the Lord may seize 5. The last point upon my Statute is a Bankrupt purchases a Copyhold and the Tenant surrenders into two Tenants hands to the use of the Bankrupt and now he will not be admitted whether the Commissioners shall sell the Copyhold And I think they shall by the very words of the Statute which are That the Commissioners shall sell all Lands which the Bankrupt shall purchase with any other Persons of trust or to his secret use If then they may sell Lands wherein he hath secret use much more Lands wherein he hath an express use And in this Case if his negligence to pray to be admitted or his absence beyond Sea shall hinder the present Sale and he die his heir may be admitted after his decease And then a greater Question will rise Whether the Land may be sold or not 2. A Copyholder of Inheritance where the Custom is that the Wife shall be indowed surrenders into the hands of two Tenants to the use of the Mayor and Commonalty of D. in Fee and dies the Wife marries with I. S. a Merchant the Mayor and Commonalty are admitted the Heir of the Copyholder enters I. S. and his Wife affirm a Plaint in the Lords Court in nature of a Writ of Dower and recover against the Heir the Mayor and Commonalty enter I. S. and his Wife sue a Precept in nature of a Scire facias against the Mayor and Commonalty for to have a a Writ De Dote assignanda and damages I. S. becomes a Bankrupt the Commissioners sell the Copyhold and assign the damages which shall be recovered the Vendee compounds with the Lord. This is a good sale for a third part of the Copy-hold during the Coverture and a good Composition but the Assignment of the Damages is void 3. A. Is Tenant in Tail of a Mannor where the Custom is that the Wife of a Copyholder shall have a Widow's Estate A. grants white Acre to B. by Copy for life and after he makes a Lease of white Acre for life to F. the Wife of B. dies A. makes a Feoffment of the Mannor to G. and all the Tenants attorn A. dies B. takes a second Wife and dies the Issue in Tail enters into the Mannor the second Wife takes M. to Husband who becomes a Bankrupt the Commissioners sell white Acre the Vendee compounds with the Issue in Tail and enters F. dies The Sale is good during Coverture and the Composition is good 4. Baron and Feme have issue A. a Daughter the Baron dies the Mannor of Sale is given to the Feme for life the remainder to the Heirs of the Baron and Feme A Copyholder surrenders to the use of himself in Tail the remainder to A. in Fee the Feme takes a second Husband and hath issue B. another Daughter and dies A. enters the Copyholder suffers a customary recovery and dies without issue his Heir being a Merchant and Bankrupt B. enters the Commissioners sell the Copyhold the Vendee compounds with B. The Sale is good but the Composition
England did not call themselves Kings of Ireland but Lords of Ireland and the Parliaments of England bound them till 2 H. 7. and they are governed by the Laws of England And if a Denizen of Ireland bring an Action in Ireland and it be adjudged against him there he may have a Writ of Error in the Kings Bench here and reverse it and it is no Plea of the Defendant here to plead in abatement of the Writ of Error that the Plaintiff is an Alien which shews that if he be free of Ireland he is free of England as all born in Ireland are Authorities that Ireland is subject to the Laws of England and that their errors are to be corrected here viz. 15 E. 3. Fitz. Record 17. and error 72.34 As 7. 5 E. 2. Fitz. Error 89. Natura Brevium fol. 22. E. See Case de post nati 2 R. 3.12 Kelway 11 H. â— fol. 202. read this case 6. She is married to a Londoner being an Alien It may be questioned whether an Alien be capable of the freedom of London or not and I say he is but there be private orders that none shall be admitted or made free but if de facto he be made free then free he is till he be disfranchised 7. That the Wife of a Freeman of London may by the custom be a sole Merchant 1 E. 4. fol. 6. â—5 H. 6.28 9 E. 4.35 21 H. 7.17 Points upon the Statute 1. WHether such a Feme covert sole Merchant can be a Bankrupt I think she may for 〈◊〉 by the custom she may buy and sell and â—â—e and be sued then she is within the words of the Statute which is getting her living by buying and selling for otherwise the Statute would be deluded and the Londoners Wives only shall buy and sell and trade 2. Whether a Denizen of Ireland be within this Statute Besides the former Arguments see the words of the Statute which are c. But you must intend that she was made Denizen of Ireland by Letters Patents under the Great Seal of England and not of that of Ireland Note an old difference 3. Whether the Wife can be a Bankrupt within this Statute when the Husband because he is an Alien cannot be within the same As if an Alien marry an English woman and they with others rebel the Woman is a Rebel and a Traitor and if she be taken in the Wars she shall be executed in cold blood but the Husband is but as an Enemy and by the Law of Arms may be ransomed 4. But he is afterwards naturalized whether he be within the Equity of the Statute because he is not within the words But tantamount amplifie this with cases of tantamount and of qui potest majus minus potest si unico vincentem te à majori unico te 5. If a Feme Covert sole Merchant elopeing shall be a Bankrupt the difference will be when shee lopes carrying her Goods with her so as she leaves her Husband non solvent and when she leaves him sufficient for if such a Woman be indebted no doubt but the Creditor may sue her by the Custom in the Courts of the City or else he may sue the Husband alone at the Common Law But if he be non solvent her absenting of her self will make them both Bankrupt her as a Merchant by Custom and him to his folly to suffer her 6. Whether her Land shall be sold it shall foâ— it may be it was the credit of her land that procured her to be trusted 7. And it shall be sold after her death by the Statute of primo Jacobi of Bankrupts 8. Whether his Estate which he hath as Tenant by the courtesie shall be sold for the Estate of Dower of a Bankrupts Wife shall never be sold But I answer here the Land shall be sold and he shall not be Tenant by the courtesie First note in many cases where there shall be Dower but yet no tenancy by the courtesie as Payne's Case Lands are given to a Feme and to the Heirs Males of her body and she hath issue a Daughter and dies the Husband shall not be Tenant by the courtesie the same it is if the issue be ripped out of his Mothers belly after her death But here the Husband is particeps Criminis and a Bankrupt and his interest shall be sold for his debt for so were all the debts of his Wives making and his Wife traded in his right and for him if he so please and the Reversion shall be sold for the payment of the same debts for they were hers The first Division Who shall be said a Merchant or other person seeking his or her living by buying and selling 1. AN Inn keeper is indebted and absents him-himself he is a Bankrupt 2. A Feme Covert sole Merchant in London the Baron is outlawed the Feme is a Bankrupt 3. A Feme Covert sole Merchant in London elopes the Husband is non solvent the Feme is Bankrupt and her Land shall be sold 4. An Officer of the Court takes a Lease of the King of the sole Preemption of Tyn he is a Bankrupt for all debts he makes during his Term. 5. Such a Lessee pays not his Debts in seven years after his Lease expires and after he leaves off buying and selling of Tyn yet he is a Bankrupt But if his Creditors give him longer time after he hath given over and cancel their old Assurances and take new he is no Bankrupt 6. A Grasier that hireth Grounds and buys Cattle and feeds them and sells them again is a Bankrupt but if he grase his own Free-hold contrary 7. A Clothier that sets poor People a Work but himself doth nothing but buy Wooll and sell Cloth is a Bankrupt But if he work himself and keep Looms and Servants contrary 8. An Ironmonger in London is a Bankrupt but a Lock-Smith contrary 9. A Goldsmith Hammer-man is not a Bankrupt but a Goldsmith Shoop-keeper is a Bankrupt 10. A Gentleman Adventurer in Virginia is not but to the East-Indies is a Bankrupt 11. An Adventurer into Greenland is not a Bankrupt into Muscovia is a Bankrupt No Adventurers for Discovery and Plantation are within the Statute although they carry with them trifles to exchange and truck with the Savages for their end is not Merchandizing 12. A Nobleman hath granted to him the sole importing of Cards or Glasses is a Bankrupt but a Monopolist that hath granted to him the sole making contrary 13. A Tailor that useth to make apparel to Noblemen or Ladies and to buy the stuffs for them and sets higher prizes in Bills then the stuffs cost is a Tromper and a Deceiver but not a Bankrupt 14. But a Tailor in London whom we call a Salesman that keeps Shop of Apparel to sell ready made is a Bankrupt he is like a Clothier 15. No Handicrafts-man that is in the compass of the Statute of 5 Eliz. is a Bankrupt although he buy his Materials
Bankrupt becomes Lunatique and Office is found yet the Land shall be sold 12. A Bankrupt is Tenant in Tail the remainder in the King of the Provision of the King sale by the Commissioners shall not be good against the issue in Tail for the Bankrupt neither by Fine nor Recovery could lawfully part with it but for his life 13. A Bankrupt hath a Seigniory the Commissioners seize before assignment a Tenancy escheats the Tenancy shall be sold but if after seisure of the Seigniory and before the Escheat the Bankrupt dies the Commissioners shall not sell by this Statute but by the Statute of primo Jac. the Tenancy shall be sold 14. Two Joyntenants one is a Bankrupt the Commissioners seize a Moiety the Bankrupt dies no part shall be sold by this Statute but by primo Jacobi a moiety shall be sold for that Statute is that the Commissioners shall proceed as if he were living 15. A Merchant takes a Wife after he is a Bankrupt she shall not have Dower against the Vendee 16. A Feme Covert sole Merchant inheritrix in London is a Bankrupt her land shall be sold and her Husband shall not be Tenant by the courtesie 17. A Bankrupt commits Felony the Land shall not escheat but the Commissioners may sell it The fifth Division What Copy-hold Lands shall be sold and in what case Composition shall be made with the Lord and in what not 1. THe Lord sells the Freehold of one sole Copy-holder to A. the Copy-holder is a Bankrupt the Commissioners shall sell 2. The Lord is to be compounded with for the Admission by the Statute and in this Case here can be neither Surrender nor Admission yet by the equity of the Statute the Lord must be compounded with 3. Commissioners sell a Copy-hold the Vendee tenders to the Lord a competent Fine which the Lord refuses and will not admit the Vendee the Vendee may enter 4. If a Copy-hold be intailed to a Bankrupt in a Mannor where Recoveries are used to cut off intails Commissioners may sell but if no Custom be for Recoveries contray 5. A Copy hold is surrendered to the use of a Bankrupt who will not take it up or sue to be admitted because it shall not be liable to his Creditors the Commissioners shall sell it 6. A Copy-hold is surrendred to the use of a Bankrupt who will not be admitted the Commissioners shall sell but the Vendee shall pay two Fines 7. A Copy-holder where the Feme by Custom shall have Dower surrenders into the hands of two Tenants and dies the Feme marries a Bankrupt the surrendree is admitted the third part of the Feme shall be sold but no remedy for the damage betwixt the death of the Husband and the admittance 8. One surrenders Copy-hold to the use of a Bankrupt the Lord dissolves his Court yet the Commissioners shall sell The sixth Division What Annuities Fees Goods Chattels Debts c. Commissioners may sell 1. B. Hath a Lease for years made unto him upon condition that he shall not alien yet the Commissioners may sell and this is no forfeiture 2. B. hath the next advowson the Church is void the Commissioners sell the Presentation the Vendee shall present and no Symony 3. A Bankrupt purchases Land with warranty the Vendee of the Commissioners shall not vouch but he shall rebut 4. Commissioners sell a rent or reversion this is good without Attornment 5. A Bankrupt becomes Lunatique his goods shall be sold as before of Lands c. 6. Lord and Tenant the Lord is a Bankrupt the Tenant dies the Commissioners shall sell the money or debt due for relief 7. The same of a Herriot 8. The Lord is a Bankrupt the Tenant dies the Commissioners sell the Relief-money and the Herriot the Executors pay the Relief the heir shall not pay a Herriot 9. The King Leases the Aulnage of London for years the Lessee is a Bankrupt the Lease shall be sold 10. Lord of a Leet is a Bankrupt the Commissioners shall sell the Amercements past and the Vendee shall have an action of debt 11. A Lease for years is devised to A. if he live so long the remainder to one B. the Commissioners shall not sell the possibility 12. Land is extended and delivered to the Extenders because too high another defeats this Execution by extending of a former Statute the first is a Bankrupt the Commissioners shall sell the possibility 13. A Rent charge shall be sold yet it is not within the words 14. The same Law of a Common in gross 15. It is the Custom in Surrey that certain Heir-Looms shall go with the Land and not to the Executors the Land is intailed Tenent in Tail is a Bankrupt the Heir-Looms may be sold from the Land and the issue hath no remedy 16. Two Tenants in Common recover damages in trespass the one dies the other is a Bankrupt all the damages shall be sold 17. A Bankrupt recovers damages by an erroneous judgement the Commissioners assign them to the Creditors who recover them in execution the Judgement is reversed the sale was good but the Assignees or Vendees shall make restitution 18. A villain is a Merchant the Lord seizes all his goods and imprisons his person for six months he is a Bankrupt the Lord shall have his goods but his debts shall be sold 19. A Villain Merchant is a Bankrupt the Lord seizes his goods yet the Commissioners may sell 20. A Merchant by Outlary becomes a Bankrupt the Creditors shall have his goods and not the King 21. A Merchant Bankrupt commits Felony his Creditors and not the King shall have his goods 22 A Bankrupt is felo de se the Almoner shall have his goods notwithstanding this Statute but by primo Jacobi the Commissioners shall have them The seventh Division Who shall be said a Creditor that shall be relieved and and who not and what shall be said to be a just debt intended 1. ONe sole Creditor shall not by this Statute sue the Commission for it ought to be at the Sute of his Creditors 2. Merchant Mortgages his Lands the Mortgagee may choose to come in as a Creditor 3. A Merchant enters into a Statute or Recognizance the Conizee is a Creditor else he shall have neither Land nor money if he come not and contributes 4. A Merchant pledges goods and becomes Bankrupt the party need not come in 5. The plaintiff that hath the defendants body in execution shall not come in to be relieved 6. But he that hath a judgement for a debt may come in before execution 7. One that hath the Bankrupts body in execution upon a Statute Merchant may come in 8. One that recovers damages in Waste or Assise or trespass shall not be relieved 9. An Informer recovers money forfeited by a special Statute he shall not be relieved 10. A Bankrupt is indebted to the King Commissioners seize the Bankrupts goods process comes to the Sheriff he shall leavy the
attainted of Treason and suffers a common Recovery Office is found I. N. becomes a Bankrupt Tenant in tail dies without issue I. N. waives the remainder The Commissioners may sell the Moiety of this remainder 10. One grants an Advowson to a Feme Covert sole Merchant the Church becomes void the Husband in consideration that I. S. doth enter into Bond to preach twice a Week presents him to the Benefice the Feme becomes a Bankrupt the Husband dies the Feme waives the Grant the Commissioners within the six months sell the Presentation and the Advowson This is a good Sale of the Advowson but the King shall present 5. Division What Copyhold Lands of a Bankrupt the Commissioners may sell and in what case Composition shall be made with the Lord and in what not 1. A Tenant by Copy of Wh. Acre surrenders to the use of B. for years upon condition that he will not do waste and after he surrenders the reversion into the hands of two Tenants to the use of C. a Merchant in Fee the Lord makes a Feoffment of the Acre to D. C. departs the Realm and after is non solvent a Privy-Seal is awarded against him the Tenants present the surrender to the Court of the Lord C. will not return the Commissioners sell the Reversion to E. B. makes waste E. tenders Composition to D. who refuseth it and E. enters for the Condition broken The Sale is good and the entry of E. congeable but no Composition is due Points in the Case at Common Law 1. TEnant by Copy surrenders into the hands of two Tenants and the Lord separates the Freehold from the Mannor if the surrender is void 2. Tenant by Copy surrenders to one for years and after to the use of another in Fee if good without Attornement 3. If the Tenants are bound to Present the surrender at the Lords Court after he had separated the free hold from the Mannor That is whether the Presentment shall not interest the party to whose use c. by relation from the surrender 4. If Tenant by Copy surrender to the use of one for years upon condition and after he surrenders the reversion to the use of another in fee and after the condition is broken if the Grantee in reversion shall enter for the forfeiture by the Statute of 32 H. 8. Cap. 34. 5. If a Copy-holder Lessee for years by surrender commits waste if this is a forfeiture to the Lord or onely to him in reversion or of the reversion Points upon the Statute 1. IF a Merchant who departs by license and upon a privy Seal will not return but is non solvent shall be a Bankrupt 2. One had onely the free-hold of a sole Copy-holder if such Copy-hold may be transferred by sale of the Commissioners 3. A Copy-hold is surrendred to the use of a Husband who will not be admitted if the Commissioners can sell 4. Whether one fine 2. fines or no fine be due to the Lord 5. Admitting a fine were due and the Lord after tender refuseth it what remedy the Vendee hath for the Land or the Lord for the fine 1. When there is a Lord of a Mannor and Copy-holder of Inheritance surrenders into two Tenants hands and then the Lord makes a Feofment of the Copy-hold I take it that this severance of the Free hold and of the Copy-hold from the Mannor shall not destroy the surrender For when the Copy-holder hath once surrendred he hath dismissed himself of all his interest and the right is in the party to whose use the surrender was made Bunting Ca. Coke li. 4. The death of the surrenderer the death of the Tenants nor the death of the party to whose use the surrender was made shall not alter the Case But the party to whose use such a surrender is made hath such an interest as shall descend to his heir for his heir shall be admitted and by the same reason his interest shall remain notwithstanding the Lord sell the Free hold as it is said in Morrels case the custom hath so established and fixt the estate of the Copy-holders that the Lords severing it from the Mannor cannot alter it It was adjudged that the custome of a Mannor being that if Tenant for life by Copy die his Wife shall have her Widdowes estate the Lord dissolved his Mannor the Copy holders Wife died he took a new Wife and then he died the Second Wife had her Widdowes estate and yet there was no Court whether she could come to have the death of her Husband found and presented and where she might be admitted c. But admit that the Surrender had been made into the Lords hands out of the Court as by Melwich his Case it may or admit it had been made in Court and the party to whose use it was made had tendered the Lord his due fine and the Lord would demand more and so defer the admittance In these Cases the Law is plain that the party may enter and no Action lies by the Lord against him And what if the Lord dissolve the Mannor shall that alter the case No no more than if a Copy-holder of inheritance die and the Lord severs the Freehold from the Copy before the Heir be admitted this shall not destroy the Heirs estate but he may lawfully enter and hold it for ever without admittance 2. But here notwithstanding this severance of the Free hold from the Mannor the two Tenants present the Surrender the next Court held by the Lord for the Mannor The Question is first whether the Tenants were bound to do it or no And the next what is wrought by it And I take it they ought to present it For notwithstanding the Copy-hold be severed from the Mannor yet they are not severed they be Tenants still and they must do their duties and the rather because it is not altogether severed for Tenant for years of the Copy-hold remaines still Tenant to the Lord and his rents and duties are to be done to the first Lord and not to the Copy-holder in reversion But to what use is this presentment of theirs I take it to this use It shall have relation to the Surrender and interest of the party to whose use it was made from the time of the Surrender Like as an Office found 10. years after an escheat will intitle the King to all the mean profits from the death of the party Or as a Deed acknowledged to be Inrolled shall be Inrolled notwithstanding the death of any of the parties and shall have relation from the date of the Deed to intitle the Bargainee to the profits Or as a Legacy is given by Will cannot be sued for till the Will be proved and then the Probate makes the Legacy due by relation ever since the death of the Testator Even so the Presentment hath relation to intitle the party to whose use the Surrender was made from the time of the Surrender And this appears plainly by Rowswels Case