If any Feoffee upon trust infeoff a stranger and do sâ—ll the lâ—nd to him for money yet if he give knowledge unto the stranger that he himself 〈◊〉 iâ—â—â—ely upon trust I may compell the stronger by suâ—â—oena to perform my VVill 5 E. 4. 76. Feofments aâ— use 32. sub poena 2. 16 If Tenant in Burgh English infeoff one to the use of the Feoffor and his heirs the youngest son shall have a sub poen to recover the land but not the eldest 5 E. 4. 7. 6. Feofments al use 32. sub poena 2. 17 If one seized of land which is descended unto him from his mother do make a Feofment upon trust and then die without issue the heir by the mothers side shall have a sub p. to recover the land not the heir by the fathers side 5 E. 4. 7. b. Feofments al use 32. sub poena 2. 18 If a Tenant in tail the remainder being a stranger do make a Feofment to his use and die without issue having declared his Will the sub poena belongeth to such person as is limited by his VVill and not to him that hath the remainder but if he have declared no VVill then he in the remainder should have had the sub poena quaere E. 5. 47 sub poena 26. Feofm al use 32. But Brook thinketh that he in the remainder shall have no sub poena in neither case because he may have his remedy at the common Law 19 If the Husband and the VVife be seized in the right of the VVife and the Husband make a Feofment although he declare no VVill yet the VVife shall not have the sub poena because as Brook thinketh 20 VVhen a Feofment is made without any consideration and no use expressed the Feofment shall be intended to be to the use of the Feoffor and his heirs and also the VVife may have her cui in vita by the common Law 5 E. 4. 76. Feofments al uses 32. sub poena 21 If a man have issue a Son and a Daughter by one Wife and a Daughter by another Wife and maketh a Feofmeut to his use and dieth if the Son do take the profits and die his Sister by the whole Bloud shall have the land by sub poena and the other suffer nothing because the rule that Possessio fratris de feod simplici fecit sororem esse haeredem doth extend to uses as well as to lands 5 E. 4. 7. sub poena 3. b. Feofment al uses 33. b. discent 36. Com. 4 E. 6. 58. per Mountague capit Justic. de communi banco and if the Father had devised his land to a stranger this would have been no possessio fratris because the freehold of the use was in the stranger but if he had devised it only for years it would have been a good possessio fratris 5. E. 4. 7. sub poena 36. Consc. 12. by descent 22 If I. S. make a Feofment in trust and be afterwards attainted of Felony the lord of whom the land is holden shall not have the sub poena by Escheat 5 E. 4. 7. B. Feofment al use 34. 23 Note that the King cannot be infeoffed to any other mans use although it be so expressed neither doth any sub poena lie against him but the Feofment is good and the limitation of the use void per Markham Brian capit Iustic. 5 E. 4. 7. 7 E. 4. 17. Office 2. 24 One being infeoffed to the use of a Woman she took a Husband and the Husband sold the land to a stranger and the Woman received the money and the Feoffee at their request infeoffed the stranger the Husband died and the Wife brought a sub poena against the Feoffee who shewed the matter and the Wife demurred Starkie Apprentice if the Husband make a Feofment of the Wives land she shall avoid it by a cui in viâ—a and so if the Husband do sell the VVives use in the land this Sale shall in conscience be said the Sale of her Husband alone and not of them both and therefore the sub poena doth lie which saying was affirmed of all the Justices of both the Benches and the Chancellor said that all which a VVoman Covert doth shall be esteemed to be done for fear of her Husband and the receipt of the money by her is not material because she cannot have the free disposition thereof and the Complaintiff prayed that the Defendant might be committed unto Prison untill he made satisfaction and the Chancellor said that the Complaintiff might have a sub poena against the stranger which bought the land but Yelverton said that she might have a sub poena if the stranger had knowledge of the wrong and deceit done to her but otherwise not The Chancellor answered that the stranger knew well that she was a VVoman Covert in cam Scacc. 7 E 4. 14. Sub poena 3. B. consc. 13. b. Feofm al use 4. 25 Note that a Feoffee of trust is bound by conscience to plead all Pleas and to maintain such actions for the land as the Feoffor will have him but it shall be at the Feoffees charge per omnes Justic. but it is doubtfull whether the Feoffees be compellable to plead dilatory Pleas 7 E. 4. 29. sub poena 9. br Feofments al uses 38. 6. consc. 27. 26 Note that Coke Justice said that he sued once a sub poena against the heirs of a Feoffee upon trust and the matter was long debated and the opinion of the Chancellor and of the Justices was that the sub poena did not lie against the Heiâ— whereby he was put to exhibit his Bill in the Parlament 8 E. 4. 6. sub poena 8. B. consc. 16. Note that it must be intended that the Heir had not the land but that the land was sold before by the Feoffee to a stranger for if the Heir had the Land he is liable to the trust as well as the Feoffee 27 If I do lend money to I. S. and he infeoffeth me of his Lands and it is agreed that I shall take the profits thereof untill he have payed me if I. S. do pay the money or tender it unto me and I refuse to re-infeoff him he may compell me by the sub poena per Pigoâ— Ser jeant 9 E. 4. 25. Bar. 100. 28 It was holden in the Chancery that if any Feoffee upon trust do infeoff any other which knoweth of the trust I may have a sub poena against them both but if a stranger knowing the trust had done a Treâ—passe upon any Feoffee I might compell my Feoffee by sub poena to sue him and to recover Damages I shall have no sub poena against the Trespassor but onely against my Feoffer because he might lawfully procure his own discharge but the Reporter thinketh that the Trespassor
is punishable by sub poena as well as the Feoffee 11 E. 4. 8. sub poena 13. consc. 17. 28 A sub poena was sued against two sons and heirs of gavel land to compell them to make an Estate of the land of which the Complaintiff had infecffed their father and others to his use of whom their father was the Survivor the Defendant said that the common voice of the Country is that the Feofment was to the use of the Complaintiff and of his VVife and of the Heirs of their two Bodies begotten who have Issue therefore they prayed a VVrit to warn the Issue and upon the VVrit the issued appeared and shewed that he was under age and prayed that the matter might stay untill he came to age and the Chancellour by the advice of Laicon and Littleton Iustices awarded that the matter should not stay because he was not seized of the Land by a Discent wherefore the Issue by his next Cousin declared his Title 14 E. 4. Age 20. 30 Note that a sub poena doth lie against the Heir of the surviving Feoffees 14 E. 4. Sub. 14. 31 A sub poena was brought against three Feoffees upon trust to compell them to execute an Estate to the Complaintiff one of them said that the Complaintiff made a Feofment to the other two in his absence to the behoof of all three and he died never agreed to the Feofment and the Land is holden of him so that he cannot execute an Estate but that he shall extinguish his own Seigniority and therefore he disclaimed in the Land and it was allowed to be a good answer per curiam Cancellarii 16 E. 44. sub poena 18. 32 If I and another do submit our selves to an award and it is awarded that I shall cause my Feoffees in trust to release to the other being in possession I may compell my Feoffees by sub poena to fulfill the award per omner Iustic. in communi banco 17 E. 4. 4. 33 A VVoman made a Feofment upon confidence and afterwards took a Husband and in her Death-bed she made Testament that her Feoffees should make an Estate to her Husband and to his Heirs the VVoman died and the Husband sued a sub poena to compell the Feoffees to perform her Testament and it was ruled that the Testament was void and that the Feoffees were not compellable to perform the same for Law and Conscience do allow nothing to be good which is done by VVoman Covert concerning her Inheritance except it be by Fine leavied where she is openly examined in the Court for this Testament would be a Disinheritance inheritance to her Heir but she may make her Testamet of Goods and make Executions by consent of her Husband per Cancell omnes Justic. uno tantum excepto And Vavasor shewed to the Court that Anno 7 E. 4. a VVoman Covert having Feoffees upon trust she and her Husâ—and sold the Land and she received the money and afterwards the Husband died and she sued a sub poena and it was adjudged to be a good sute 18 E. 4. 118. consc. 28. b. Testament 13. 34 The custome of Kent is that an Infant of fifteen years may sell his Land and the case was that an Infant made Feoffees upon trust and afterwards being above fifteen years old he willed the Feoffeâ—s to make an Estate thereof to him and his VVife in tail and the question was whether they were compellable by sub poena to do it or no and it was holden that the Feoffees were not compellable because the Infant cannot will his Land by the custome for the custome is onely of Sale and is always to be construed strictly according to the very words also at the Common Law such a VVill made by the Infant of Lands is void and so it is in conscience per Littleton Jenney omnes socios Justic. 21 E. 4. b. Testament 17. 35 Note in Burgh English land where the youngest shall inherit if the Father make a Feofment upon trust the youngest son shall have the use and the sub poena and so it is of Gavel-kinde land where all the Brothers do inherit per Dig. App. 21 E. 4. 24. b. Testament 17. 36 Hussey chief Justice of England said that when he came first to the Court which was about thirty years past it was holden by all the Court that if one infeoffed another of trust which died seized so that his Heir were in by Discent no sub poena should lie against the Heir for the same reason a sub poena might be against the Heir after two Discents which were inconvenient but the Chancellor said that there are Presidents in the Chancery that a sub poena doth lie against the Heir in Cam. Scacc. 22 E. 4. 6. b. consc. 23. 37 If a ftoffee upon confidence make a feofment to one that hath knowledge of the confidence the feoffer shall be restored again in the Chancery otherwise it is if the purchasor had no knowledge of the confidence per Cancel 7 H. 7. 12. sub poena 18. 38 The Feoffees upon trust of an Infant may grant all ordinary Offices for term of life as Steward Bailiff and Receiver and they shall have allowance thereof in their Accounts when they are called to account in the Chancery but they cannot grant any fees for term of life without the assent of the Heir when he is of full age per Hussey Brian cap. Just Ang. But Keble Serjeant said that if the Feoffor were able and willing to be Bailiff or Receiver himself or if that there were need of any Steward Bailiff or Receiver then he might repeal the Grants by sub poena also it was agreed that the feoffees might defend the Land in all sutes with the profits thereof and should have allowance thereof in Counsel 8 H. 7. b. Ftofments al uses 12. 39 Note it was adjudged that a VVoman Covert Executrix might make sale of her lands to her Husband and that it is a good Bargain and the feoffees upon trust are bound to make a feofment accordingly and in this case because three feoffees did the contrary they were committed to the Fleet 10 H. 7. 20. This is to be understood where the Land was devised to the Woman being Executrix to the intent to be sold for the performance of the VVill of the Testator 40 Certain feoffees were seized to the case of Sir Richard Rooe for life and afterwards to the use of others and the feoffees made a feofment in fee to Sir Richard Rooe the question was whether Sir Richard Rooe had forfeited his Estate or no and Hussey and Brian chief Justices agreed that it was no forfeiture by the common Law for no mans Reversion is discontinued continued thereby otherwise it is if Tenant for life of land had made a feofment to a
Decree made in the Chancery by sub Poena the party may have a writ of error in the Parliament to recover the same if it be erroneous in such sort as he may have to reverse Judgements erroneously given in the Kings Bench per Chock Serjeant 37 H. 6. 3. Iurisd. 53. error 95. But note that Brook abridgeth the case that Prisot the chief Justice was of the contrary opinion which is not to be so collected by the book but by implication yet may it seem that no writ of error doth lie but a petition to the Parlament in the nature of a writ of error but Prisot said that Judgements in the Chancery upon scire facias to repeal Parents and pleas or persons priviledged are reversable by Parlament because they are Judgements but the decrees are not 2. Cholmly Serjeant said if a decree be made in the Chancery that the Chancellor hath not power to reverse that decree in the same Court but it must be redressed in the Parlament for Judgement given in the Kings Bench Common-place or Exchequer are not reversable in the same Court but in a higher Court But Knightley Serjeant said that a decree was but an Order taken by the Court for the time the which upon good causes shewed may be redressed in the same Court hut Devistall Serjeant said that if it might be so there would be an incessant confusion of all causes wherefore the Chancellor cannot reverse an absolute Decree but he may reverse a Decree which is made with a quousque for an absolute decree is much like a definitive sentence given in the spiritual Court which cannot be redressed in the same Court but by application into a higher Court and the Kings Secretary interrupted him to speak any further of the authority of the Chancery In Cancell 27 H. 8. 6. In a writ of error to reverse a Judgement of petition in Chancery the Defendant took exception that the Judgement given in the Chancery might not be reve sed in the Chancery being all one Court but in the Parlament Et non allocatur exception per Cur Cancell 42. asss. p. 22. b error 131. It seemeth that this was not properly a reversall of the petition but rather and is like to the case ensuing I the Lord Chancellor grant a patent of land and after make a patent to another of the same land the second patent is revocable in the Chancery by scire facias but not by writ of error for a Court may reform but not reverse their own Judgements 2 R 3. A statute Merchant was acknowledged in the Chancery the money payable Anno 16. and the party sued execution and his writ supposed the same to be payable Anno 14. and by this sute the Feoffee was put out of power and he sued a writ of error in the Kings Bench and it was awarded that he should be received to the sute 18 E. 3. 25. error p. 17. asss. p. 24. And Plowden reciting the case saith that if upon sutes in the Chancery according to the order of the common Law there be error that shall be reformed by a writ of error in the Kings Bench which is a higher Court 13 El. Com. 393. The Second Part of the Absolute Power CHAP. I. Of Lands IF two Copartners bring a Formidon and one of them by Covin between the Tenant and him will not joyn with the other in a true Declaration the other may compell her by such poeâ—a to joyn in the true Declaration for else the Action would abate per Mâ—â—le Iustice Ienâ—ey Serjeant in Co. Ba 6 E. 4. 10. b. consâ— 12. 2. If two men have a wood jointly and one of them felleth the wood and keepeth all the money to himself his fâ—llow hath â—o remedy by the Law for as when they took the wood joyntly they put each other in trust and were contented to occupy together so the Laâ— suffereth them to order the profitâ— thereof according to the trust that each did put in other and yet if one took all the profits he is bound in conscience to restore the half to his fellow for as the Law giveth him right onely to half the land so it giveth him right onely in conscience to the half profits and yet it cannot be said that the law is against conscience for the Law willeth not that one shall take all the profits but leaveth it to their conscience Lib. Doct Stud. cap. 19. 3. In many cases conscience shall be ruled after the Law as the eldest son shall have his fathers land by conscience as he shall in law and so he shall in law and so in Burgh English the youngest son shall enjoy the land both in law and conscience and in Gravel-kinde all the sons and daughters shall inherit together and there can be no other reason gives why it should be so in conscience but because law or custome is so lib. Doct. Stud. 2. c. 15. for divers good causes upon that ground 4. Tho. Parrick and Agnes his wife exhibited a bill conteining that one Beatrice whose heir Agnes is was seized and took to husband Thomas Bradley present in the Court and dyed Bradley continued as Tenant by the curtesie of England untill now of late he claimeth and publisheth that he hath fee-simple and withheld the Charters wherefore they prayed that he might he examined what estate he claimeth and to be recorded and to knowledge what Charters he hath to deliver them to the complainants defendant Dâ—smissum est à curia quietus sine die per consi cur co qd materia in hac supplicatione contenta non est sufficiens ad pâ—nendum ipsâ—m defend ad examinat super â—undem petition Pet. in Canc. 20 H. 6. the defendant hath authority by law to keep the Charters and although in words he claimeth fee-simple yet because it is not alleadged that he did not any act to the dis-inheritance of the complainants therefore it seemeth he was dismissed CHAP. II. Of Lands in use or trust LAnds in Lond. were devised to the devisors son and three others in fee and that one of them should have the profits during his life the devisor dyed the son and heir sued a sub p against the two others to compell them to release unto him because the use of the land ought to be in him after the death of the per â—or and it was thought reasonable per omnes Justic. in camera Scac. 3 H. 6. devise 22. 8 feofment al uses 49. So it is if the same had been done by Feofment 2. Onâ—â—made a Feofment upon confidence and afterwards declared his will to the Feoffee that one of the daughters should have the land after his decease and after that he came to the Feoffee and told him that his said daughter would not be
stranger for that were a forfeiture and the Chancellour said that in the first case it was no forfeiture in conscience but he would reform so much as was amisse done and no more and so it had oftentimes been ordered before the Chancellour 10 H. 7. 2. 41 A feoffee upon trust was seized by a sub poena by the Feoffor and the feoffee was injoyned that he should make an Estate to the feoffor before a day certain sub poena 100. lib. in Cauâ— 10 H. 7. 4. 42 The Heir of Co. qu. use shall have after the death of his father the issues and profits of the Lands as if his father had died seized thereof and he may compell the Feoffees upon trust by sub poena to infeoff him and shall have all advantages as if his father had died seised in Camera Scacc. per Wood Serjeant 13 H. 7. 7. 43 If the Feoffees upon trust will not infeoff the Feoffor he may compell them by sub poena in communi banco per Brian cap. Justic. de communi banco Danvers Justic. 14 H. 7. 19. 44 One having feoffees in trust devised by his Testament that his Feoffees should sell the Land the Feoffor died the Feoffees infeoffed others to the first use the second Feoffees may not perform the Will but the first Feoffees may and the second Feoffees may do it because there is a kinde of use in I. S. seeing he is specially named and he may compell them to sell unto him and if the Will were that the Feoffees should sell his Lands to pay his Debts the Creditors may compell the feoffees to selâ— it but if he had willed that the feoffees should sell the Land for money to be distributed there no man can compell them to make the Sale per Fineux cap. Justic. Read Tremaine Iust. If the Will were that his Executors should sell it though his Executors refuse to administer yet the ordinary Administrator may not sell it but the Executors themselves may notwithstanding the refusall cause the uses not testamentory per Finenx cap. Iusiic Angl. Read Termail Iustic. And if he will that his Land shall be sold and shew not by whom his Executors shall sell it and not the feoffees for the Executors have the greatest confidence put in them for they have the disposition of the money for which it is sold per Fineux cap. Iust. Angl. Read Tremaine Frowick Serjeant And if the Will be that the Land shall be sold the Heir shall take the profits untill it be sold per eosdem in Banco Regis 15 H. 7. 1â— b. Feofm al use 12. 45 If one having feoffees upon trust do make his Testment that they shall have an Estate to I. S. and dieth if the feoffees infeoff others to the first use the second feoffees may make the Estate by Kingsmell Serjeant 14 H. 7. 33. 23. Feofments al use 12. 46 In a Formedon against two feoffees upon trust if the feoffees refuse such Pleas as the feoffor doth minister to them or if they or one of them do refuse to vouch where the feoffor sheweth to them good cause of voucher the feoffor hath no remedy against the feoffees to compell them buy by sub poena or else by Action upon the case per toâ—am Curiam And Bradnell chief Justice of the Common-place said that if a feoffee upon trust die without Heir or die his Heir being within age or is attainted of felony so that the Land cometh to the Lord the Lord shall have it to his own use and the feoffor hath no remedy in communi Banco 14 H 8. 24. 47 The feoffees upon trust may grant the Offices of Steward and Receiver per Newdibank Serjeant if the feoffor die without Issue within age the Lord shall hold the land to his own use and if the feoffees acknowledge a Stat. Merchant and the Conusee do extend the Land he shall hold it to his own use because the said persons do come unto the Land by the operation of Law and not by their own Act nor by the Act of the Feoffees but if the feoffees infeof a stranger which hath notice of the first use there the second feoffee shall be seised to the first use though he paid a consideration Quia participes criminis consentientes agentes paci plena plectentur dolus fraus nemini patrocinetur and if the second feofment be to one that hath notice and he pay consideration then he shall be seised to the first use but if he pay no consideration nor have no notice yet it shall be to the first use per Justic. Servients If the feoffees grant a Rent for Life out of the Land without any consideration If it be to one that hath notice of the first use this Rent shall be to the use of the feoffor of the Land per Pollard Brook Fitzherbert Iust. in communi Banco 14 H. 8. 4. 48 A use shall ensue the nature of the Land for if it be use of the Burgh English Land the youngest shall have it and if of Gavel-kinde then all the Children por Pilman Serjeant 14 H. 8. 6. in banco 27 H. 8. per Pollard apprentic 49 If the feoffee upon trust die his Heir shall be subject to the trust per Bradwell cap. Just Fitzherbert Brook Justic. in communi banco â—4 H. 8. 7. 50 Note by Brook Justice that uses are created by the common Law and are relieved by conscience and all medling with the Land by the Feoffees ought to be at the desire of the Feoffor and if the Feoffee do otherwise he is chargeable in conscience 14 H. 8. 8. in communi Banco 51 If one have Feoffees in trust of Seigniory if the Tenancy do escheat unto them they shall be feised to the use of the Feoffor and so it is of Land recovered in value per 〈◊〉 Iust in communi Banco 14 H. 8 9 52 One having feoffees upon trust wills that his Executors should sell his Lard 〈◊〉 died if that Executor make another Executor in that case the Executor of the Executor cannot sell the Land because the first Executor had that power as in authority severall from his Executor ship and though the first Executor had refused the Aministration yet he might have sold the Land per curiam in cancellaâ—â—a Scacc. And if he had willed that the chief Justice should sell his Land although that the chief Justice had resigned his Office and another been placed yea the first should sell his Land per Bradwell Justic. communis Banci and if the will were that John S. should sell his Land if I. S. die his Heir cannot sell it because the trust is determined per Shelley Ingelfield Justic. Willoughby Spilman Serjeants 19 Hen. 8. 9. 53 Note by a Statute in Ann. 1 R. 3. the Will of the
Feoffor is made good by the common Law release before it took effect but by conscience 1 R. 3. 54 One make a Feofment to the use of his last will and Testament and declareth by his Testament that the Land shall be to the use of his VVife for Life and afterwards to the use of Revoke his Son in tail in this case he may change his VVill and the uses at his pleasure because it is referred to his Testament per Bradwell capit Iust. communis banci Fetchlers Inglefield Iust. in communi Banco 19 H. 8. 11. 30 H. 86. Feofment 47. 55 If I do covenant with I. S. that when he shall infeof one of three Acres I and my Heirs and Assignes will stand seised of other Lands to his use If I make a Feofment unto me that hath no notice of this use yet it I. S. do infeof me of their Acres the Feoffee shall be seised to the use of I. S. because it is a Springing use and the land is charged with that use in whose hands soever it come but if I have feoffed and they sell the said land to me that hath no notice of the use there the second Feoffees shall be seised to their own use 30 H. 8. 6. Feofments al use 50. 56 If I do buy lands and the Seller executeth an Estate unto me habendum imperpetuum without saying to my Heir the meaning of the Bargain being that I shall have the Fee-simple if the Seller do refuse to make further assurance I may compell by sub poena per Audley Cancell temp. H. 8. liber qui dicitur fundamentum legum Angliae B. consc. 25. 57 The Feoffee upon trust sold away part of the Lands and received money for it and the rest he kept and took the profits and dyed the Feoffor per Bill in Cancell recovered against the Feoffees Executor the money received the value of the profits per decretum in Cancell ex assensu omnium Iustic. aliorum de Concilio Regis praesentium pet. in Cancell de Anno 34 H. 6. CHAP. III. Of Copy-holds TEnant at will by Copy of Court Roll shall have a sub poena against his Lord if he put him out of his Tenâ—menâ— per Kirkby Magistrum Rotulornm Pool Serjeant in Canc. 32 H. 6. 21. Stat. sub poena 2. Note Littleton Serjeant said that he saw once that Tenant by Copy Court Roll sued a sub poena against his Lord and it was holden by the Justices that he should recover nothing but Daaby chief Justice of the common Pleas said that the Judgement was so given because he sued to have recovered the Free-hold whereunto he being a Copy-holder could have no right 7 E. 4. 19. sub poena 6. Tenant per Copie 10. CHAP. IV. Of Chattels Real ONe being bound in a Statute Merchant paid the money without having a Release and notwithstanding the Conusee sued Execution the Question was whether the Chancellor might grant a sub poena against the Conusee Fairfax Iust. and Hussey chief Justice of England said that he might not for it were no reason that the Testimony of two VVitnesses should defeat a matter of Râ—cord Cameâ—a Scacc. 22 E. 4. 6. Richard Reade had Execution of certain Lands upon a statute Merchant and the Debtor sold the Land to Sir William Capell who recovered the same by Default with Voucher against the Debtor whereupon William Capell entered and the Termor sued a sub poena and it was holden that if Reade had no remedy to falsifie this recovery then he should be restored in the Chancery by sub poena because it was done by Covin per Cancell Hussey Brian cap. Iust. 7 H. 7. 11. 12. b. consc. 8. b. Faux Recovery 25 If a Recovery be had against the Lessor and the Lessor for years do not pray to be received if by that means he have no remedy at the common Law he shall have remedy in the Chancery so that he were in Prison or beyond Sea or had any reasonable cause of his Default per Conisby Keble Serjeants but quaere it he had no such cause 7 H. 7. 10. If one make a Lease for years or grant his Lease for years to a use this grant and use is good notwithstanding the statute of Ann. 3 H. 7. cap. 15 uses 7. because the statute maketh onely these Gifts of Chattels void which were made to defraud Creditors 3 M. 16. Feofments al use 60. CHAP. V. Of Chattels Personals IT was agreed upon between I. S. and I. D. that I. D. should have certain Debts due unto I. S. by divers persons and I. D. did enter into Obligation to I. S. for the Government of certain summs in consideration of the same Debts and because there were but things in Action and that I had no remedy to recover the Debts by the common Law therefore I. D. sued a sub poena against I S. to be discharged of the Obligation by conscience and for so much as it appeared that by his Contract no Duty could rest in I. D. therefore it was decreed that I. D. should bring in the Obligation by conscience for so much it appeared that by his Contract no Duty could rest in I. D. therefore it was decreed that I. S. should bring in the Obligation to be cancelled or else release to I. D. per Canc cum opinione omnium Justiciar 37 H. 6. 13. b. Barr. 75. 6. consc. 4. 2 Sir Thomas Brown being possessed of certain Goods was attainted of Treason which Goods came to the hands of Iohn Brown the King by Patent gave the Goods unto Walwine and Walwine sued a sub poena against Iohn Brown for the Goods who came into the Chancery by Jenney his Counsel and demanded Judgement of the sub poena for that a sub poena doth not lie but where the party hath no remedy by the common Law and in this case the Complaintiff may have an Action of Detinue for the King might have had the like Action to whom it was answered by Greefield being the Complaintiffs Counsel that the King himself can have no Action by the common Law for Goods forfeited untill the Goods have been seised to his use or else that the Goods be proved to be his by matter of Record and yet the King hath Election to sue for them in what Court he will and so may his Patentee also the Grantee can have no Action for the Goods at the common Law without having had possession seeing they were granted to him as things in Action and the Court held that the sub poena did lie very well and John Brown was commanded to bring in an Inventory of the Goods against the next day or else to be committed to the Fleet in Cancell 39 H. 6. 26. b. conse. 6. A Clerk