the which the Lord chief Baron Tanfield said insist not upon a labour of that kinde for it is plain enough because the Queen being partie there can be no Estoppel as to any part in that case also as to that part of his argument Mr. Walter agreed on the other side and also he said that if a grant of the Queeen were void at the Common Law for default of want of consideration this Statute aids not Walter for the Defendant and he divided the case into foure points the first whether the Tenant for life by the Kings guift by surrendring his letters Patents hath also surrendred his estate Secondly if the surrender in this case made be defective only for want of matter of circumstance as the inrolment c. whether such defects are saved by the Statute 43. Eliz. Thirdly whether in this case an actual surrender be the consideration meerly which moveth the Queen to grant or what shall be intended the consideration in this case Fourthly admitting that an actual surrender is the sole consideration in this case then whether a Patent shall be adjudg'd void for default of such consideration for a false consideration doth not avoid a Patent but a false surmise doth first when the Kings Tenant for life doth surrender or give up his Patent although without deed yet with such circumstances as the law requireth the surrender is good for although a surrender of letters Patents made by the Kings Tenant in tail will not make estate tail void or determine as it appears by the book case of 35. H. 8. title surrender and Cook 6. the Lord Chandos case yet the bare giving up of the letters Patents by a Tenant for life is a surrender of his estate so here in this case is some proportion between a Tenant for life of the Queen and a Tenant for life of a Common person to amount to a surrender and therefore it appeareth by 43. E. 3. that a Tenant for life may surrender without deed and without livery and from the land but a Tenant in tail may not do so also if a Common person hath a rent or other thing which cannot pass but by deed yet a surrender of such a rent shall be good by a bare deliverie up of the deed if he hath but an estate for life in the Rent and this also although it be but to the disseissor of the land out of which c. the same Law he took it of a particular Tenant for life of years also 32. H. 8. Brook Patents 97. it is made a doubt whether the estate tail of the Kings Donee be determined and gone by surrendring of the letters Patent and he referred that if thought worthy of a doubt whether it should be a good surrender of an estate tail they would hade held it clearly a surrender for an estate for life and it was admitted 3. Eli 2. Dyer fo 193. Mack-Williams case that if in the principal case if a Vacat or cancellation had been the surrender had been good actually without question and Sir Maurice Barkleys case cited on the other part proves the same also for there it is admitted that if the letters Patents had been given up there had been a perfect surrender And 40. H. 3. fol. 5. Belknap held that a surrender may be by word which is to be intended by giving up the Patent and that appears by Rolfs case in Dyer that a voluntary surrender needs no Conftat also where it hath been objected that the special verdict in this case hath not found in what Court the surrender was made he answered that the Law shall intend it to be made in the same Court from whence the letters Patents did issue for a surrender cannot be good being made in another Court and therefore it must needs be intended the same Court and he vouched 11. Ed. 3. fo 1. and 18. Eliz. Plinies Case and Covel and Cabels Case in Banco Regis 38. Eliz. wherein a special verdict it was holden that all things necessary for the perfecting of that the Iury hath found to be done must be necessarily intended concurrent Secondly the want of circumstances in a surrender are perfected and supplied by the Statute of 43. Eliz. for although matters of substance are not aided within this Statute yet matters of circumstances are aided And he said that all the defects in this Case are matters of circumstance and to prove that the defects in this Case are only in circumstance he said that there are three principal defects in conveyances which are meerly matters of circumstance and aided within this Statute the first is meerly want of form in a conveyance and that such a defect is aided he cited Hussies Case to be adjudged accordingly the second is where words are wanting in a conveyance and that such a conveyance is aided by this Statute he cited the opinion of Popham and Gawdy in 44. Eliz. in a cause depending in the Chancery the third matter of circumstance is where there is want of some matter concerning the executing of an estate and that such defect is only matter of circumstance and aided within this Statute he cited Morley and Whartons Case to be adjudged 7. Eliz. in the Common Pleas that the default of not inrolling is aided by this Statute and Mack-Williams and Kemps Case cited in Dyer before proves this to be but matter of circumstance and for that he thought the surrender in the principal Case wanting nothing but inrolment is aided by this Statute also in the argument of the second point he shews what defects in conveyances should be accompted matter of substance and so not aided by this Statute of 43. Eliz. and to this purpose he held that all disabilities of the person in a grant is matter of substance and so not aided within this Statute and he cited Twynes Case 32. Eliz. in the Exchequer to be accordingly Secondly he held that the nature of an assurance is not aided by this Statute and therefore if a man hath power to grant an estate by fine and he doth it by Deed this is not aided by the Statute for this is defective in matter of substance and he cited Wisemans Case and Sir Hugh Cholmleys Case in Cook l. 2. also he said if a man give land to the King and his heirs to have ten years after such grant this is not made good by the Statute Thirdly whereas it may be Collected that because it is found in the special verdict that an actual surrender was the cause which moved the Queen to grant or that it appears to be the cause he held that no consideration plainly appeareth but only by relation to a consideration before mentioned and he said that these words used by the Queen viz. modo habens et gaudens shew that the Queen took notice the state was still injoyed notwithstanding the delivery up of the letters Patents and therefore it cannot be intended by the verdict that the Queen intended
above mentioned of a lease for years and also it was there said that if Tenant for life be the remainder to the King for years the remainder to another in Fee and the Tenant for life makes a Feofment in Fee this drawes the Kings remainder out of him and so he held that here is no gift Secondly that here is no imployment and so the Feofment is made good Altham second Baron contra I will consider only two points First if it be a gift for years or for ever and I say that it is a gift for ever for here is no intent in the Donor to determine the superstitious use because he doth not limit any other use to which it should revert but only that the Priest should be maintained for ever and as that which hath been said that it was not imployed he answereth that out of the Book of 22. Assises 52. where 12. d. is reserved for three years and after 100. s. seisin of 12. d. is seisin of the 100. s. because it is issuing out of the freehold as the case is in Littleton in the Chapter of Atturnement Tenant for life the remainder in Fee the Lord shall not avow upon the remainder but shall have it by way of Escheat for all the estates together are holden of the Lord but if land be given to finde a Priest in D. and one is maintained in S. this is a mis-imployment but in our case I conceive that the Feoffees have power to dispose the land as to them seems best and therefore it is uncertain and then given to the King as it was in Dales case land was given to the intent that a Priest should be maintained as I. S. and I. D. thought fit so that he had not less then 8. marks yearly the King shall have all for the Feoffees may give all to the Priest if they please and in Turners case land was devised to a Priest and divers poor men all is given to the King by the superstitious imployment and as to the words if by the Law it may be they are idle for id possumus quod de Jure possumus and therefore 9. Ed. 6. an office was given to one if he were able to exercise it these words are idle for the Law saith that he shall not have it if he be not able to execute it 30. Ed. 3.8 a gift to two and to the longer liver of them that the Survivor shall have it are idle words 10. H. 7. a Condition that c. and here it the condition had been until an Act of Parliament prohibit it they are Idle words for if land be given to I. S. and his heirs upon condition that if he die without heirs c. this is a void condition and Repugnant to Law Lastly I hold the feofment good by way of Admittance and that the livery takes effect notwithstanding the Queens interest 4. H. 6.19 the Kings Tenant for life is disseised he shall have an Assise and yet there is no intrusion upon the King 17. H. 7.6 the Kings Lessee makes a feofment the King enters and so he held that the judgement should he given for the Defendant Snig Baron argued much to the same intent that Bromley had done and that the Schedule is so circumspect that nothing is given after the 99. years and that a spirit of Divination forwarned him of the alteration and he agreed the Feofment to be good with this difference where the King is in possession actually and where the Reversion is in the King and the book of 2 H. 4.9 that none shall enter upon the Kings Farmor is to be understood of the Kings under Tenants and not of his Lessees Tanfield chief Baron said that neither by the intent of the Statute nor of the parties the fee is given to the Queen but it is apparant that during the 99. years the parties intent is in suspence for fear of alteration and that they would see the difference of the times and leave the disposing thereof to his Feoffees and if they had sold the land and with the money maintained a Priest as many stocks of money have used to do without doubt it had been forfeited to the King and not the land and it would be in vain to speak of an Amortization if it be for a stipendary Priest only for this would not be necessary to have a foundation incorporated and to make an Amortization for such a Priest and therefore it seems to him that there is no determination of his will after the 99. years but that all is left to the determination and disposition of the feoffees who then should be and after the intent of the Statute which was penned by Hales Iustice of the Common Pleas. I observe four words given appointed limited and assigned and I do not conceive that our case is within the compass of any of them for as I said before it is in suspence until the end of 99. years and the parties who should have the interest are not known untill the time come nor the estate setled until that time but if it had been conveyed to superstitious uses after it had been given to the Queen notwithstanding the conveyance had not been sufficient if he who did convey had power in respect of the abilitie of his person and the estate in him and therefore Pasch 22. Eliz. the case was this Sir William Say before the Statute of 32. H. 8. of Wills was seised of lands in fee not devisable and before the said Statute he devised it to finde a Priest and notwithstanding that the devise was not good yet it was adjudged that the land was given to the Queen by 1. Ed. 6. but if it were a feme covert or an infant who are disabled in Law or a Tenant in tail who is disabled in respect of his estate there it had not been given to the Queeen but in all cases there ought to be an assignment or otherwise nothing is given and there is a difference where one grants land to the intent with the profits thereof to finde a Priest there all the land is given to the Queen and where he grants a rent for the maintenance of a Priest for there the King shall have but the Rent and he said that the Case cited 5. Ed. 6. Benlos is good Law and as to that which hath been said That because the power of the Feoffees is uncertain it should be given to the Queen true it is where the power is uncertain to bestow the profits but if their power be certain it is otherwise and as to the imployment there is none because there is no gift but the imployment of the particular estate is an imployment of the Remainder and a small thing will make an imployment James case was of the Greyhound in Fleetstreet which was given to finde a Priest and the White Horse for the maintenance of another and the Feoffees of the White-horse maintained the Priest of the
Heir except that judgement be given against the Ancestor and for that see 40. E. 3. Executors 74. and 41. Ass pl. 15. and 15. Eliz Dyer 322. And also if a Recusant had been convicted upon the Sat. of 23. Eliz. and dyed before judgement cleerely this forfeiture shall never be charged upon the Heir for the words are that a Recusant shall forfeit 20. l. a moneth and if he doe not pay it then appoints the recovery by Bill Plaint or Information and this ought to be alwaies in the life of the party then the Stat. of 28. Eliz. maketh not a new debt or Forfeiture but gives a penalty for the non-payment of that which was a debt within 23. Eliz. and that the intent of the Stat. of 28. Eli. was but such this is proved by the Title of the Act. viz. for the more speedy and due execution c. 2. It is proved by the first words of the Act for the avoiding of all delaies c. so that it appears that this Act is but as a penalty meerly Also he said that this Stat. of 28. Eliz. dispenceth with the conviction as to the penalty but doth not take away the Conviction also he said that conviction without Iudgement maketh not a Debt Also he who is convicted by proclamation and dieth is discharged Also he said that our Case hath been compared to a Debt upon an Obligation but this is not like for the Stat. stands not indefinite but hath reference to 23. for otherwise a Recusant may be doubly charged that is upon both the Statutes for there is no means to recover the Debt but by this Statute of 23. Eliz. See Sir Edward Walgraves case Dyer 231. Wentworth and others against Stanley WEntworth and his Wife and Rich and his Wife brought an Ejectione firmae against Stanley and shewed in their Declaration how one Edward Stanley was seised in Fee and infeoffed the Earl of Darby others to the use of himself for life the remainder to the use of the Plantiffs wife for 100. years and died and the Plantiffs entred and the Defendant ejected them c. and this Feofment was made in 40. Eliz. the Defendant saith that long before one Richard Stanley was sesed in Fee and gave it to the said Edward Stanley in tail and that he so seised made a Feefment to the uses as is alledged and died and the Plantiffs entred and the Defendant as issue of the Feoffor re-entred and so by his pretence his is remitted whereupon it was demurred and upon the opening this case the Barons were clear of opinion that the issue in tail is remitted and came paramount the lease and so the lease for years is gone also by the chief Baron and Baron Snig there needs no Traverse to be alledged by the Plantiffe because it was but of a fee gained in an instant by the feofment of a Tenant in tail and a fee-simple gained in an instant needeth not to be Traversed 5. H. 7. and 2. E. 4. wherefore the Court said that judgement ought to be given against the Plantiffs but yet at the desire of the some the Court gave day to the Councel on both parts to argue the case at which day came Heneag Finch for the Plantiffs and he argued to the matter in Law and therein he said that by the feofment of Tenant in tail the use to himself for life the remainder to his daughters for years without limiting the residue of the use that in this case the residue of the use shall be in the feoffes and not in the feoffor for by him there is a difference between a feofment by him who had a fee with limitation of an use as above and a feofment made by him who derives an estate out of a fee for when Tenant for life or Tenant in tail makes a feofment and limits an use for part of the estate as above there the residue of the issue shall be to the feoffee and he vouched Castle and Dods case adjudged in the Common Pleas 8. Iac. that if Tenant for life grant over his estate without limiting of an use it shall be to the use of the grantee more strong here in a tortious act as our case is but if Tenant in tail will levy a fine with limitation of uses as above there the residue of the use shall be to the use of the Conusor Secondly admit that the residue of the use in this case shall he to the feoffor yet he shall not be remitted to the use as it seemeth the words of the Statute of 27. H. 8. are that cestuy que use shall have like estate in the land as he had in the use and therefore it is clear that the first taker of the use shall not be remitted as it is resolved in Amy Townsends case in Plowden and although the words of the Statute mention not heirs or issues yet by the intent of the Statute they are in equal degree but the Books which are against this opinion are two viz. 33. H. 8. Dyer fo 51. but there it is not expresly said that the issue is remitted but 34. H. 8 Br. remitter 49. is expresly against me but the same year in Dyer fo 54. it is there made a quere and in Bevils case it is only said that the first taker of the use cannot be remitted but of my opinion was Baldwin and Shelley in 28. H. 8. Dyer 23 24. and in Sanages case and 29. H. 8. it is resolved that if a man hath land by Act of Parliament there shall be no remitter and so here wherefore c. and he said if Tenant in tail be the remainder in fee and Tenant in tail makes a feofment to the use of himself in tail the remainder to him in remainder in fee in this case he in the remainder in fee shall not be remitted for then the first taker should be remitted to the pleading it seemeth that the bar is not good and first the general demurrer here doth not confess the matter of fact no more then in Gawins case in 29. H. 8. fo 40. by Brown a demurrer upon account in an appeal is no confession of the fact and in 44. Eliz. in Crisp and Byrons case accordingly see Sir Henry Browns case before a good case to this purpose then as to the Bar it seems it is not sufficient for want of a Traverse of a seisin in fee alledged in the feoffor who was Edward Stanley for it is a rule that two affirmatives cannot be allowed in a Declaration and the Bar without Traverse of that which is mentioned in the Declaration is not good except there be cause of some impossibilitie or inconvenience but yet this is to be understood where the affirmatives are express and not by implication as in Moiles case if the Defendant in his Bar confess a fee determinable he needs not Traverse the fee alledged by the Plantiffe but in our case here is an allegation made by the
Recusant may be seised after his death Thirdly if they shall be charged by the Statute of 1. Iac. as to the first it seems they are not wherein I shall endeavour to prove three things First that such land was not liable to debt by the Common Law Secondly that they are not liable to debts by the general words of the Statute Law Thirdly that they are not liable to debt by any word within the Statute of primo Iac. as to the first he observed that here is no fraud put in the case but that these lands and leases were never in the Recusant so that before that they were conveyed to the Defendants they were not liable to this debt and I alwayes observed that which the common law calleth fraud ought to be of such nature as shall be tortious and prejudicial to a third person and put him in a worse estate and condition then he was before and then he who is so prejudiced in some cases should avoid such conveyances by the common Law 22. Assises 72.43 Ed. 3.2 and 32. the Defendant in debt after judgement aliens his goods and he himself takes the profits yet the Plantiffe shall have them in execution so that if a man binde himself and his heirs in an Obligation and dies and assets descend to his heir who by Covin aliens those assets yet he shall be charged in debt for in these cases the Plantiffe had a lawful debt and such lands and goods before the alienation were liable and that former interest was intended to be defeated by those alienations and therefore they are void but of the other side where no former interest of the partie is wronged there no fraudulent conveyance was void at the Common Law and therefore if Tenant in Knights service had made a fraudulent Feofment to defraud the Lord of his wardship this was not aided by the Common Law until the Statute of Marlebridge for the title of the Lord was not prejudiced or wronged by this Feofment because it was subsequent to the Feofment also after the said Statute the Lord was without remedy for his release for it is agreed in 17. Ed. 3. fo 54. and 31. Ed. 3. Collation 29. and therefore at the Common Law if cestuy que use had bound himself and his heirs in an Obligation and died if the use descended to his heir none will say this use was assets to the heir and so was Rigler and Hunters case 25. Eliz. as to the second point it seems that the general words of a Statute shall be expounded according to the rule and reason of the Common Law and by the Common Law such confidence is not extendible therefore c. Westmin 2. cap. 18. which gives the elegit hath these words medietatem terrae and within those words an use was never extendible by that Statute 30. Ed. 3. because it was not an estate in him and so if a man be indebted for Merchandise or money borrowed and makes a gift of his lands and Chattels to defraud Creditors and takes the profits himself and flieth to the Sanctuary at Westminster or Saint Martins and there abideth by conclusion to avoid the payment of his debts it is thereby enacted that Proclamation shall be made at the Gate of the Sanctuary where such person resideth by the Sheriffe and if such person doth not thereupon appear in person or by Atturney judgement shall be given against him 2 Rich. 2. Stat. 2. cap. 3. 1. Rich. 3. cap. 1. and execution awarded aswel of those lands and goods given by fraud as of any other out of the same Franchise these words are more particular then the Statute of Westminster the second and yet it was doubted if it did extend to executions for debt as it appears by 7. H. 7. and 11. H. 7.27 and therefore in 19. H. 7. cap. 15. an Act of Parliament was made that execution for debts Recognizances and Statutes should be sued of lands in use As to the third it seems that that Statute doth not make lands in use liable to debts the words of the Statute are that the King shall seise two parts of the lands Tenements and Hereditaments leases of Farms of such offendors so that they are as general as the words of the Statute of Westminster 2. cap. 18. and here those lands and leases were not the Recusants for he had but a confidence in them the first clause of the Statute doth not extend thereunto for two causes First in regard that it never was in the Recusant and this clause extends only to such conveyances which are made by any man which hath not repaired or shall not repair to some Church for the disjunctive words do not extend throughout that branch but to the last part thereof viz. that which cometh after the word and for otherwise this would extend to conveyances made at any time without limitation which should be against the meaning of the Act. Secondly this Branch provides what shall be done concerning the King touching the levying and paying of such summes of money as any person by the Lawes of the Realm ought to pay of else to forfeit c. and by the Statutes before made nothing was forfeited but for such time as is mentioned in the Indictment which in our case is but 6. moneths but out of this branch a strong argument may be made in respect that the Statute avoids all conveyances made by Recusants in trust by express words but saith nothing to conveyances made by others to the use of Recusants and therefore this Statute doth not extend unto it if Tenant by Knights service infeoffs his heir within age and dies the Lord may enter upon the heir without suing an action but if a Feofmenche made to a stranger there he cannot enter but ought to bring his Action according to the provision of that Statute because it may be to the use of the Feoffee but no such provision is made for the heir the Statute of 3. Jac. cap. 4. provides by express words that the King shall seise two parts of all the lands Tenements and Hereditaments Leases and Faims that at the time of such seisure shall be or afterwards shall come to any of the hands of the said offendors or any other to their use or in trust for him or her or at his or her dispose or disposition or whereby wherewith or in consideration whereof such offendors or their families or any of them shall or may be relieved maintained or kept c. the different penning of these Statutes proves the diversitie of the meaning thereof this Statute is a new Law which gives to the King this penalty which he had not before and in new manner for it appoints that the partie shall be convicted by Proclamation and that being so convicted he shall alwayes pay the said penaltie until his submission without any other conviction 3. Jac. cap. 4. and also limits a manner how this new penaltie shall be levied viz.
of 99. years is agreed to be given Secondly if there be such an imployment of this land as the Statute requireth admitting the lease was not given Thirdly if the livery upon the Queens Lessee for years be good and I hold that the Fee is not given to the Queen Secondly the land is not imployed c. admitting that it was given Thirdly that the Feofment here is not good and as to the case at Bar the Feoffees may enter I doubt not of that because there is not any thing found but that it was imployed to the uses intended for 99. years Secondly if it were not imployed according to the condition after 1. Ed. 6. yet they cannot enter for themselves were parties to the Art which did prohibit it as 34. H. 8. Dyer 52. the Queen gives licence that Belmelt shall be transported notwithstanding any Statute made or to be made if after it be prohibited the licence is determined because the Patentee himself was a partie to such Statutes Secondly it is said in Addams and Lamberts case that a superstitious devise or other estate upon condition is within the Statute because the Patentee was partie thereunto Thirdly it is said in the said case that a superstitious devise or other estate upon condition is within the Statute because it is penal and compulsorie for the maintenance of a thing prohibited by the Law and also there it is said that there is a proviso towards the end of that Act that it shall not be Lawful by reason of any remainder or condition for any man to claim any lands c. for the not doing or finding of any such Priest as to the other point which was moved at Bar I hold that the use doth not arise upon the words subsequent and if they do not re-enter that then the land shall go to the use of the four Feoffees to the intent aforesaid is not a mis-ordering nor an imployment Secondly these words to the intent do not raise any use but only a confidence and trust reposed in the Feoffees Doctor and Student 94. for the first point therefore he held that there is no superstitious gift of the Fee-simple and if there were it is not imployed c. and therefore it is not given by the Statute of 1. Ed. 6. to the Queen and touching that we are to consider the Statute Indenture and the Schedule and there is not a word that after 99. years the land shall finde a Priest but the money and the land is not given but the money as in the Dean of Pauls case 22. Eliz. Dyer 368. if land be given to finde a Priest with part of the profits thereof those profits are only given to the King by this Statute and not the land but that belongs to the Dean and Chapter also the Schedule is if then it may be lawful and therefore if it were not then lawful the money is not given and it is like to the case where I make a lease for 21. years if I do allow of it before Michaelmas and before Michaelmas do not allow of it this is a void lease and so if I give land to the use of Westminster School if the Dean will enter into a Recognizance c. and if he will not enter into a Recognizance it is no gift like to the case 15 H. 7. a grant of Annuitie if such a thing be done c. secondly as to the imployment the lease is only found to be imployed and the imployment of the lease is no imployment of the Fee which was not given until the Term was expired and if the gift be not superstitious the imployment ought not to be superstitious and yet as it is said in Adams case there ought to be an imployment to intitle the Queen as the case there is if one gives the Mannor of D. and S. to superstitious uses the Queen shall have the lands out of the hands of the Feoffee and if land be given to finde a Priest in the Church of D. for 20 years and after to finde one in S. for 21. years and before the expiration of the first Term the Statute is made it seems the Queen shall have only the first Term because there is no imployment of the second Term within the Statute 5. Ed. 4.20.15 Ed. 3. Execu 63. I agree those cases for land or rent issue from a seisin 30. Ed. 3.12 in a quare impedit 5. Ed. 6. Benlowes a devise to 8. to the uses and intent that the Feoffees with the profits shall finde a Priest whilst the Law of this Realm will suffer it and if the Law will not suffer it then to the use of three of the poorest of the Parishes adjoyning by all the Iudges this is not within the Statute and as to the last point it seems that the Feofment is good and the interest of the Queen is no impediment which if it be not then there is no question as Dyer 20. Eliz. 363. Tenant in tail makes a feofment the servants of the Lessee for years being upon the land and livery is made and after the Lessee for years agrees saving his Term this is a discontinuance 14. Ed. 4.2 3. and 4. Ph. et M. Dyer 139. possession shall not be gained from the Queen but by matter of Record 4. Assises 5.21 Assises 2.8 H. 4.16.1 H. 7. no livery upon the Kings possession it may be devised by the heir or conveyed by bargain and sale or by fine from him and the Kings estate in reversion doth not priviledge the estate in possession as it is 23. Ed. 3.7 a disseisor conveys land to the Queen who grants for life and the disseisee shall have a writ of entrie against the Queens Lessee for life by the opinion of Thorp Cook lib. 4.55 a disseisor makes a lease for life the remainder to the King a recovery of the land against Tenant for life will defeat the Kings remainder 7. Rich. 2. aide of the King 61. Tenant in tail grants the land to the King with warranty and the King makes a lease for life if the issue recover in a Formedon the Kings estate is defeated and I was of Councel in the Court of wards in a case which was Pasch 43. Eliz. betwixt Chackston and Starkey for the Wardship of the heir of Clifford and it was this the Ward at full age tendred his livery and had six moneths to sue it and within the six moneths made a Feofment and after died before livery sued in this case the livery and seisin was void and it is all one as if no tender had been made for the Queens possession was priviledged the second point was that one being in Ward to the King had a reversion in Fee expectant upon an estate for life and before livery sued made a Feofment in Fee this makes a discontinuance of the reversion notwithstanding the Kings interest which he had in reversion for the Wardship which case is like to the case
the letters Patents is not material for he said it seemed to him that in rei veritate the particular estate cannot be sufficiently surrendred by this bare giving up of the letters Patents by the Tenant for life as it appears by Walshes Case cited in Altonwoods Case Cook lib. 1. and therefore he insisted not upon that Secondly he argued that a recital in the Kings Patents of a thing material if it be false and come by information of the partie is all one as a false Consideration and not otherwise and he said that it appears by Brook tit Patents pla 100. that all Considerations valuable although they are false do not avoid a Patent as where the King grants lands prodecem libris sibi solutis although that in facto this is false yet the grant is good also it appears by 26. H. 8. and Sir Thomas Wrothes Case and by 21. E. 4 fol. 48. that a consideration executed avoideth not a grant although it be false but he said that it appears by the Case of 18. Eliz. Dyer 352. that if the King make a lease in Consideration of a surrender of a precedent lease which in truth was void by some that the King may avoid the lease but others contrary because it was not done upon the suggestion of the partie but for a consideration executed and the surrender of the estate precedent was the material cause and consideration of the grant and he said that although in this Case there be not a good surrender of the letters Patents yet the Consideration being only the surrendring of the estate that is not material for as it is said in Altonwoods Case Cook lib. 1. if the King in Consideration only of the surrender of precedent Patents makes a grant in this Case there needs no averment of an estate for the surrender is not material of the letters Patents Also it appears Cholmleys Case Cook lib. 2. that if the King recite an estate to be made with Condition although that at the same time of the recital this is not Conditional yet if once this were Conditional the King is not deceived although the condition be now released and he cited also the Lord Chandos Case Cook lib. 6. where it appears that if the King recite a thing untruly which cometh not of the information of the partie this shall not hurt the Grant except it be part of the consideration and he said that Harris and Wings Case differs from this Case for there the King had a Tenant who held a Tenement by the yearly rent of six pounds and another Tenement of him by the yearly rent of nineteen pounds and he made a new lease of both those to the said Tenant without any recital of the former leases reserving but Nineteen pounds for both and there it was adjudged that the second lease was not good but he said that the reason of that judgement was not because the antient lease was not recited but by reason that a loss in the rent came to the King and so by intendment he was deceived and this was also upon the matter the reason of the resolution of Barwicks Case and also in Mack-Williams Case for there was not a surrender of the estate as the King intended which ought to be but in our Case the estate is well surrendred clearly and he thought that these words modo habens may well stand with the Kings intent aswel to a surrender in Law as to an actual surrender The Attorney generall to the contrary First for the recital that the information of the partie was that the King should have an actual surrender and so was the Kings intent collected upon the information of the partie Secondly that here is not any actual surrender Thirdly that by consequence it followeth that the Queen is deceived Fourthly here is no surrender in Law in this Case Fifthly although here were a surrender in Law yet that is not sufficient to make the grant good to the first point be said that alwayes a familiar construction ought to be made of the Kings grants and therefore if the King grant all his portion of Tithes in D. this doth not pass his Parsonage in D. although he had no other Tithes there so if the King grant all his Titheable lands within the Mannor of B. although the lands of Coppiholders are parcel of the demeasnes of the Mannor of B. yet these lands in such Case do not pass Cook lib. 1. Bozuns Case and Cook lib. 1. Altonwoods Case fo 46. aâ—so it appears by the pleading in Plowden in Wrothesleys case and in Adams case and also in Fulmerstons case that although the antient particular estate be gone in Law by the acceptance of a new estate yet it ought not to be pleaded as a surrender and therefore it shall not be construed that the King intended such a surrender which pleaders in their pleading do not accompt a surrender also he said that in regard that the Queen saith quam quidem sursum redditionem acceptamus it seems by that that she did not intend a surrender in Law and therefore accepted nothing but gave an estate c. and must be meant such a surrender to which she is partie by her acceptance also where the words are modo habens et gaudens and therefore it is inferred that the Queen intended an estate containing in the Patentee this is true for although that the Queen intended an actual surrender precedent to be made by the Patentee yet his estate continues against the Queen untill an acceptance of a surrender by her although also this may be called a surrender like unto a surrender of a benefice untill an acceptance by the ordinary also although it was found that the Queen made a new lease or letters Patents of the said Land to the said Lord Seymor yet it appears not that the new letters Patents were accepted by the Lord Seymor until a moneth after the making of them when he made a lease to Johnson and until that time without question there was no surrender either in fact or in Law and where it hath been objected that these words modo habens implie only the present time he said that the word modo will alwayes signifie such a time as the Verb with which it is joyned will signifie and therefore Cicero saith modo hoc malum in hanc Rempublicam invasit also the words Jam et nunc are of such signification as this word modo is and these words are alwayes governed by the Verb as Jam venit c. so in the Bible the story of Naaman and Gehesey Jam modo venerunt duo behold two young men are come to me c. and as to the second point it is clear that here is not any actual surrender for the King cannot take by an actual surrender without matter of Record And therefore it was holden in the Lord Stanleys Case that the King took nothing although his officers by his command did
demurrer joyned George Crook for the King conceived that the lease made in the 26. Eliz. is good first he said that although the Queen cannot take an inheritance of freehold without matter of Record yet she may take Chattels upon a surmise made that they were granted unto her and therefore he vouched 21. H. 7. fo 19 that an Obligation may be granted to the King without inrolment of the grant and 40. Assise pl. 35. Brook tit suggestion pl. 5. it appears that the King shall have a Chattel by a demise by parol upon a suggestion made thereof in the Exchequer without a Record and in the 15. H. 7. fo 15. the Kings Baylie who is not of Record may be compelled to accompt upon a suggestion made Brooks suggestion pla 31. and in the 37. H. 6. fo 7. 18. if the King gives goods with his hands this is good although no record be made thereof because it is but a Chattel and by the same reason he inferred that he may also accept of Chattel without a Record but admitting that he cannot take without a Record it seemeth that here is a thing well enough Recorded to intitle the King after the return made by the Commissioners for the Commissioners are officers of Record to this purpose and they endorse the prayer of the partie to have it Recorded and this being after the return is a sufficient Record to intitle the King and he vouched the 2. H. 7. fo 10. where the servant of Iustice Catesby after the death of the Iudge made a return and this was good and the 8. H. 4. a Record certified by a Iudge after he was displaced and 43. Assises if a Coroner makes his Rols and dies before he certifie them they may be certified after his death and so here this acknowledgement and prayer being certified may at any time after be inrolled and although it seemeth by the Book in the 19. Eliz. Dyer fo 355. that a grant being made to the King and acknowledged before one of the Masters of the Chancery and inrolled in the time of another King maketh not the Grant good yet he said that it was adjudged for another grant made to the King by the Duke of Somerset and acknowledged before one of the Masters of Chancery and inrolled in the time of another King was good enough to perfect the grant and this was by a grant made by the Duke of Bozoms Inne in London and he said that it is not reasonable that the Law should adjudge otherwise for it may be that the Clark will not inroll it untill such a time viz. a moneth within which time the King may die should it now be reasonable that it should not be inrolled at all he said it was unreasonable and he said that it appeareth by the 37. H. 6. fo 10. that a deed delivered at the Kings Coffers is good enough to avoid his lease made in the 44. Eliz. for although that it be true that a grant of a reversion shall never operate to the destruction of a right of a third person yet it seemeth that an Act commenced may be confirmed well enough to the destruction of a mean interposed Act and it seemeth that the inrolment here is but a confirmation of a precedent lease and not a relation to make a thing which was not before and therefore to examine what thing an inrolment is and it seemed to him that it is no matter of Record as it appears 24. E. 3. and 29. H. 8. fo 15. and therefore it appears by Wymacks Case Cook L. 5. that a deed inrolled ought to be pleaded hic in Curia Prolat which proveth that the deed and not the inrolment thereof is the thing which passeth the estate and therefore he vouched the case in the 6. E. 6. Brook title faits if one joynt Tenant sells all his land in D. and after his companion dieth and then the deed is inrolled yet a moitie only shall pass and 41. Eliz. Cook Perimans Case lib. 5. if a man make a feofment of lands and inroll the Deed within the Mannor as by the custome it ought to be yet the inrolment shall pass nothing and therefore it is there said the inrolment may be good enough after the death of the parties so by the same reason aforesaid it is put in the same Case of Perimon and also in Butlers and Bakers Case Cook lib. 3. that if a man deliver a writing as an escrow to be his Deed upon certain conditions performed and after the Obligor and the Obligee die and then the Conditions are performed the Deed is good for there was traditio inchoata in the life of the parties and this being after consummated takes his effect by force of the first delivery and acknowledgement and therefore also he said that it was lately adjudged that if two men are mentioned to be bound by one Obligation and the one seals at one day and the other at another day this is as good as if it had been at one day and therefore he said that there is no doubt but if a lease be made to the King by a Bishop and after another lease is made also of the same land or if the Bishop die yet if after the first lease be inrolled this is good and therefore also he cited a case to be adjudged in Banco Regis 41. Eliz. between Collins and Harding that if a man be seised of freehold and Coppihold land and makes a lease of both for years with licence rendring rent and after he grants the reversion of the freehold and makes a surrender of the Coppihold to the use of the same person and an attornment is had for the freehold and the presentment of the surrender for the Coppihold is not made untill a year after yet he in reversion shall have an action of debt for all the rent for the presentment of the surrender is but a perfection of the surrender before made also he cited the case as I observed him to this effect in the 9th of Eliz. in the Abbot of Colchesters Case where he said that the Abbot of Colchester committed treason and after made a lease for years and then he surrendred to the King all his lands and after an office found the treason and it was holden the lease is good against the King who took by the surrender and not by the treason committed before but as Walter said the case was adjudged that the King should avoid the lease for now he is in by the treason paramount the surrender Phillips against Evans IN an Ejectione firmae brought up three acres in the forrest of Kevington in the Countie c. the Defendant pleaded not guiltie and the Venire facias was awarded de vicineto of the forrest and the Defendant moved in arrest of judgement because the Venire facias de vicineto of the forrest was not good for as Stephens for the Defendant said that a forrest and the name thereof is but
because nothing vested in the Queen nothing can vest in the King as successor for a thing cannot be vested in one as heir or successor which was never vested in the Ancestor and he vouched Bullocks case in 10. Eliz. Dyer 21. Ed. 4. of election also it cannot vest in the King Primarily because he was never partie to the Iudenture of lease and he cited a case to be adjudged accordingly betwixt Founds and 29. Eliz. 11. H. 7. that he who is not partie to the Indenture shall not be primarily bound nor shall primarily take by the same Indenture and it is inconvenient that this should be a good inrolment and where it was said of the other part that a bargain and sale is good enough although it be not inrolled in the life of the parties so that it be inrolled within 6. moneths to that he well agreed for by the bargain and sale an use passeth at the Common Law without help of the Statute and this without inrolment and the Statute of inrolments restraineth it not but that it may pass well enough at this day and so the Statute perfects it so that it be within 6. moneths indifferently and therefore it is good notwithstanding the death of the parties and he concluded with the Book of the 19. Eliz. Dyer fol. and wheras it was said to be resolved contrary in an authoritie not printed he said that he believed the printed Book and vouched also the case cited before in Butlers and Bakers Case Cook lib. 3. to the third point it seemed to him that although the inrolment be good yet that should not avoid the estate by relation for a relation is not good to avoid mean conveyances without an antient right as if the Kings Villein purchase lands the King now hath right and therefore an office found after shall relate to avoid all mean conveyances and he said that relations are not so certain wherefore a man may make a ground for every case hath his particular reason and therefore to some purposes an attornament ought to relate but to other purposes it ought not to relate and therefore an attornament cannot relate to intitle a grantee to rents due between the grant and the attornament and so in this case if the inrolment had been in the life of the Bishop and of the Queen yet it could not have given to her the mean profits between the grant and the inrolment and he vouched a case in Butlers and Bakers case and the 11. H. 7. that a relation shall never be prejudicial to a stranger for his estate lawfully executed and therefore if a feofment be made to a husband and wife and to a third person and after the husband and wife are divorced for a precontract yet they shall take but a Moitie as if they were married also it is a rule that an estate vested cannnot be made Tortious by relation see Butlers and Bakers Case and he vouched a case to be adjudged betwixt Wind gate and Hall in the Kings Bench Mich. 31. 32. Eliz. that if a Statute be acknowledged to a Common person and another Statute to the King by the same Conusor and after the Statute acknowledged to the common person is extended and the Conusee in possession and also the King sues execution of his Statute he shall not avoid the estate lawfully executed in the first Conusee as it was there holden but the Barons said una voce that if such a case should come in question before them they would hold the contrary for the King and for the fourth point viz. if the confirmation were good being made before inrolment of the lease and so upon the matter before any lease in being to which the Counsel of the one part nor of the other were provided to speak Walter said that the confirmation was not good for Littleton saith that a thing or estate which is not in being cannot be confirmed and Tanfield chief Baron said and others also that this was the principal point of the case and the great doubt is of the other part viz. that this is not good and therefore advised them to argue it at another day and Walter said that the confirmation is not good in regard it is not of record nor inrolled and he vouched the 26. of E. 3. fo 20. that the King cannot take notice of any thing without record the next Term upon the first Tuesday it was appointed to be argued again and Doddridge the Kings Serjeant observed foure points First if any inrolment be necessary in the case Secondly admitting that the inrolment be requisite if here be a good inrolment being made after the Kings death Thirdly if the confirmation of the Dean and Chapter be of necessitie to be inrolled Fourthly admit that the confirmation need not to be inrolled and that the lease ought to be inrolled then if this confirmation be good because it was before the inrolment of the lease as to the first he conceived that aswel a Chattel real as a thing personal may vest in the King without Record for it should be inconvenient that Chattels should be inrolled First for the infinitness Secondly for the small value of them in the judgement of Law and he vouched 40. Assises pla 35. of a Legacy devised to the King and 37. H. 6. fo 10. if a Chattel be given to the King there needeth no record and the 28. E. 3. fo 23. the King brings a quare impedit upon a grant of the next presentation without record and yet it was good 21. H. 7. fo 19. an obligation may be granted to the King without record 35. H. 8. Brook prerogative and 33. H. 6. the Baily shall have aid of the King and he vouched also 2. E. 6. Brook prerogative and 35. H. 6. fo 3. Fitz. villinage and Brook prerogative and the 21. H. 7. fo 8. if a man possest of a Term be outlawed this Term is in the King by outlawry without Record to the second point he thought that the inrolment was good after the Queens death for the inrolment ought to relate as it appears by 1. H. 7. fo 28. and this relation disaffirmeth the mean estate and gives also the mean profits and as to the point of relation he vouched Nichols Case Plowden where the entrie of the heir once lawful was made unlawful by relation and he vouched also 14. H. 8. fo 18. in the end of Wheelers Case and by the 4. H. 7. fo 10. a man seised of land is attainted of Treason the King grants this land to A. the person attainted commits a Trespass and is restored by Parliament the Patentee shall never have an action of Trespass because this restitution takes away the cause of action and to prove that the inrolment may be well enough after the Queens death he said that the said case put to be resolved in the 19th of Eliz. Dyer fo 355. concerning the Duke of Somerset was after adjudged contrary to
Earl of C. now dead and found that by fine and recovery he conveyed an estate in this land to the use of his brother that now is Earl of C. in tail the remainder over to c. and died having a daughter now Countess of Dorset who moved by Dodderidge the Kings Serjeant in the Court of wards that this office was insufficient for by the pretence of the said Countess the first estate given to the Cliffords by E. 2. was a general tail and then the fine levied and the recovery suffered by the last Earl her father is no Bar but that it may discend to this Countess as his heir in tail and therefore Serjeant Dodderidge said to the Lord Treasurer then present in Court that if this should be allowed that Iurors may finde generally a grant made and shew no quallitie of the conveyance nor any place or time but if this were a grant of reversion or of a possession he said that many men by such offices should have their lands given away whereunto they had no means for uncertainties to take a Traverse and as to insufficiency of this office he said that the insufficiency therein consisted first in matter Secondly in form for the insufficiency of the matter is two fold First because that the office findes only that King H. 6. by sufficient conveyance not limited any manner of conveyances nor any qualitie thereof which ought to be shewed and it is material because we may give a different answer thereunto for against letters Patents we may plead one thing and against an other conveyance we may plead another thing and so our answer differeth according to the qualitie of the conveyance Secondly it is insuffient in matter because it is found that H. 6. granted the possession and that he granted the reversion nec non manerium which is repugnant for if the King grant a reversion then no possession passeth and if he pass a possession then no reversion passeth and therefore it is repuguant to say that he granted Reversionem nec non manerium which implieth a possession also he said that his exceptions to the office as to the Mannor of it are two-fold First the office doth finde any time of the grant made by H. 6. and this is material for the grants upon Record take their force from the time of their date as appears by Ludfords Case in Plowdens Commentaries and he said that at this time the case is material to be exprest in respect that H. 6. was for part of his reign deposed and after restored and it might be in the time that he was deposed by Edward the fourth but unto that it was answered by the attorney of the wards that the office found that H. 6. granted c. that it was not in the time when he was deposed the second insufficiency in the Mannor is because it is not found at what place H. 6. made the said grant and that this is material to be found by office he vouched 36. H. 6.32 and he said that it is very requisite that in such offices all circumstances ought to be expressed in as ample certaintie as in a declaration so that the partie prejudiced by the office may know where to search for the conveyance but the Attorney general said that there needs no such express finding of all circumstances by a Iury as it ought to be in pleading for it shall be taken by intendment in divers cases but yet he said that it appears by 1. Eliz. Dyer 174. it is a good plea to say that A. granted a reversion c. to the King without shewing how much more in office which is the Act of the Iurors and therefore Serjeant Harris cited the Book of 14 15. H. 7.22 where an office found an estate tail without mention of the Donor and yet good and the Attorney general said also that it appears by the finding of the Iury in Fulwoods Case Cook lib. 4. that the Iury need not precisely to finde all circumstances for if there be convenient certaintie the residue shall be supplied by intendment as it is there said and the Attorney said that whereas it hath been objected that the issue is evil because it is found that H. 6. granted the reversion and also the Mannor and Castle aforesaid and doth not limit incertaintie that the King granted a reversion or that he granted a Mannor in possession to that he said that it is clear that the King may after recital of a particular estate grant the reversion nec non terras sive manerium and then be the land in lease or be the lease void in Law yet the land shall pass and this is his course alwayes in granting the Kings lands to others and therefore the Iury did well to finde the truth without determining what should pass for admit that there were no estate precedent in being yet by this finding it appears plainly that the Mannor and Castle should pass by the grant in the time of H. 6. to which the Lord Cook agreed for Law and so he said it was his use when he was Attorney general to which also the Lord Treasurer Flemming chief Justice and Tanfield chief Baron agreed and the Attorney general said that his use was if A. had a lease from the King of B. acre which by effluction is to determine in Anno. 1612. and the said A. doubting that this lease was not good in Law prayed to have a new lease that in this case he recited the first lease in the new letters Patents and thereby granted the land for twentie years from c. which shall be in Anno 1612. or from the sooner determination of the former lease and the Iudges allowed it to be good and Dodderidge Serjeant said that after the difference taken between the pleading and the finding of the Iury it seemed to him that there is a great difference between them but after the finding of the Iury upon an office as our case is and a pleading there is no difference for the office is a thing to which an answer may be made but a verdict given upon issue joyned between the parties hath no other proceeding but to judgement immediately and therefore such a verdict shall be divers times supplied by the construction of the Iudges but a verdict upon an office ought to be as certain as an indictment because the partie may Traverse and to prove that upon such uncertain offices there is no remedy by Traverse he vouched the case of 3. H. 4 5. upon an insufficient office after the outlawry of A. and no time is found of the outlawry and he observed out of the said book that the partie outed by the said insufficient office had no remedy by Traverse but was compelled to make a motion to the Court and after this case for difficultie was referred to the two chief Iustices and the chief Baron to consider upon who the said Term at Serjeants Inne appointed it to be
Sir Robert Dudley appointed and after Sir Robert Dudley by licence from the King Travelled beyond the Seas to Venice and after the Barganees made a lease to Sir Robert Lee to the intent that the Lady Dudley should take the profits of part thereof for ten years if the estate of the Barganees should continue so long unrevoked and after the King having notice of divers abuses made by the said Sir Robert Dudley in the parts beyond the Seas commanded the said Sir Robert Dudley by privy Seal delivered unto him the 10th of April in the 5th year upon pain of forfeiture of all his lands and fortunes to return again immediately c. and after a Commission issued forth to inquire what lands and Tenements c. Sir Robert Dudley had or others for him in use or upon confidence and the Iury found this special matter but found not any fraud expressy and thereupon the King exhibited his Bill here against the Barganees and also against Sir Robert Lee their Lessee who truly discovered all this special matter and that they were not knowing of the Deed until long time after making of it and that no consideration was given by them in this case for the lands so bargained and it was argued by Sir Henry Mountague Recorder of London for the King if these lands should be seised or not he conceived that there are three things considerable in the case First the contempt of Sir Robert Dudley in his not returning upon the sight of the privy Seal and of what quality this offence is Secondly what interest the King had by this offence in the land of Sir Robert Dudley being the offender Thirdly if notwithstanding these offences these lands ought to be seised for the King touching the first point he said that it is requisite to examine if a subject at the Common Law may go beyond the Seas without Licence and in what cases the Law allows a man to go out of the Realm without Licence and as to that he said that it appears by the reason in the 12th of Eliz. Dyer that at the Common Law every man may go out of the Realm but the Statute of the 5. Richard 2. restraineth all but Merchants noble men and Souldiers and as he conceived this was but an affirmance of the Common Law notwithstanding the Book before cited and to prove that he said that the opinion of Dyer in the first Eliz. fo 165. seemeth to agree also it is proved by divers Licences granted before this Statute see F. N. B. fo 85. in the writ de securitate invenienda quod Se non divertat ad partes exteras sine licentia regis according to the 12. Eliz. in Dyer and he further said that there are two reasons to prove that no man may go beyond the Sea without Licence at the Common Law for by 2. E. 3. and the 16. E. 3. and Glanvil in his Chap. of Essoynes by such means the subjects may be deprived of their suits for debt and also the King may be deprived of the attendance of his subject about the business of state and it appears by the Register fo 193. 194. that religious persons purchased licences to go beyond the Seas and it appears by Littleton in the Chap. of confirmation that a dissent takes not away an entry of him who is beyond the Sea except it be by the Kings commandment see the case intended by Littleton in the Chap. of Continual claim there it seems to be a doubt to Littleton then he argued further if the Common Law alloweth not a subject to go beyond the sea without licence but reputes it a great contempt this is a great contempt in him who will not return by the Kings command and the Law hath alwayes punished such contempt as it appears by Dyer fo 28. 177. 19. E. 2. John de Brittons Case also there is a president for seisure of all his lands for such contempt and he vouched the book what the King had done where he cited that the Prior of Oswaldshire forfeited all his lands and possessions for such contempts and so concluded the first point of the quality of the offence and spoke nothing of the licence which Sir Robert Dudley had of the King at the time the which as it seemeth was not expired nor the power which the King had to Countermand it within the time to which the Attorney general in his argument did speak to the Second point it seemeth that the contempt giveth such an interest to the King that he shall retain the land until conformity for he who dwelleth in contempt ought not to have any possessions here and he cited the 22. H. 6. and the 21. H. 7. and divers other books which are cited in Calvins Case Cook lib. 7. also he said that there is a difference where the King is offended as King of England and where as head of the Kingdome as this case is which is a greater offence in qualitie then for any offence for which men should lose their lives as if they should stand mute upon their arraignment c. also there is a great difference between this contempt and by outlawry and therefore in case of outlawry he needs no office but the King is only intitled to the profits of his lands which is but a transitory Chattel in which case an office is not necessary but where an interest coms to the King there ought to be an office and he vouched Pages Case in Cook lib. 5. and Sir William Herberts Case but he did not endeavour to prove what interest came to the King in this case for when an interest comes to the King there ought to be on office as to the second point he said that trust between parties is fraud as to the King and in this case the badges of fraud are found by the office First his purpose to go beyond the Seas Secondly his Barganees are not privy to the Deeds Thirdly no summe was paid by them Fourthly here is a power of Revocation Fifthly covenants to execute all grants as Sir Robert Dudley appointed Sixthly the subsequent Act that is viz. his staying beyond the Seas and his not returning upon the Kings command and although in this case there be no fraud in the parties who are Barganees and so the fraud is only of one partie yet it appeareth by the 19. of H. 8.12 that if an infant hath right to land and a stranger disseise the Tenant to the intent to infeoffe the infant without Covin in the infant yet the infant shall not be remitted and he vouched Delamores case in Plowden to be accordingly also there are divers cases in our books to prove the inveterate hatred which our law beareth to all Acts which are fraudulent and therefore in 44. E. 3. 41. Assise pla 28. it appears that a recovery upon a good title although it be in Dower which is favoured in Law against a Tenant who comes to the
Common Law it is also to make an obligation in the name of another to be forfeitable although it was not at the Common Law so if we will have a confidence or a trust to be forfeited we ought to have a Statute made to this purpose and as to Pauncefoots case he said that the King had a title by the indictment of recusancy before the conveyance made by Pauncefoots but so it is not in our case whereby appeareth a plain difference betwixt the cases see the 14. H. 8. fo 8. the Attorney general to the contrary at another day and first he spake to the quality of the offence viz. the contempt and this offence as he said is aggravated by these circumstances First the command of the King himself came and not of any inferiour officer as Sheriff c. and it is immediately directed to the partie himself Secondly the command is that he shall return upon his faith and allegeance which is the strongest compulsion that can be used Thirdly the thing required by the King is the principal dutie of a subject viz. to be at the command of the King for service and not as the common summons in Law is to answer at the suit of I. S. and he said that this contempt is to be accompted in quality of a contempt from the very time when the privy Seal came to his hands for the words quod indilate c. and it hath been in all ages the course and use to punish contempts of this kinde by seising their lands and he vouched in proof thereof the presidents of John de Brittons case in 19. E. 2. and of Edward de woodstock in the time of E. 2. and the case in 2. Ma. Dyer fo 128. 2. Eliz. Dyer Barners case fo 176. and 23. Eliz Dyer 375. and Englefields case Cook lib. 7. moreover he argued in so much it is clear that the King shall seise his lands for this contempt it is to be considered what estate or interest the King shall gain by this seisure and as to that he thought that the King hath an estate at the least for the life of the effendor and that he conceived is proved by the presidents for these words are used in the seisure c. donec aliter duxerimus ordinandum c. and he said that this is proved by Englefields case and also by the way and manner of the seisure and disposing of the land for such contempt in 23. Eliz. Dyer 375. by the Statute of 13. and 14 Eliz made against fugitives also he used this reason to prove that the King had an estate for life viz. because the offender by this contempt had impliedly deserted his land and left it to the Kings dispose and then it is all one as if he granted the land to the King to hold and use as long as he pleaseth and such an express grant will create an estate for life in the King as is proved by 35. H. 6. where it is agreed that if I give land to A. as long as he will this is an estate for life and so here by this implied Art c. also as to that that may be pretended in this case that the King granted licence in this case to Sir Robert Dudley to travel for a time certain which time is not yet expired and therefore the contempt qualified or satisfied by reason of this licence to that he said that notwithstanding that was the case yet the contempt is all one as if he had no licence at all in regard it is countermanded by the privy Seal which injoyns him to return and to prove that this licence is alwayes countermandable by the King he said that besides the common usage and obedience of countermands of this kinde he said that it was to be proved by reason also and authority of our books for although here be a licence indeed yet there is great adversitie between a licence indeed which giveth interest and a licence indeed which giveth only an authoritie or dispensation as in our case for the one is not to be countermanded but the other is as appeareth by 5. H. 7. and 1. Ma. Dyer 92 and admit that after this licence and before the departure of Sir Robert Dudley the King had said unto him you shall not go this had been a good countermand as seemed to him and he vouched 9. E. 4.4 and 8. E. 4. if I licence A. to stay in my house for three dayes yet I may put him out in the mean time but otherwise it is if I licence A. to hold my land for 3. dayes because there an interest passeth and the reason wherefore this licence in our case is countermandable is because all licences of this kinde have tacite conditions annexed to them for no Act or licence wil. free a subject from his allegeance as appeareth by Doctor Stories case in the 13. Eliz. Dyer fo 300. and no man can put off or be dismissed of duties which belong to a subject no more then he can put off his subjection and this is the reason that an honor or dignitie intailed ought to be forfeited although it be intailed for the honor which is given by the King hath a tacit condition in Law annexed unto it and it ought not to continue in him who committeth Treason nor in his posteritie although that the partie had but an estate tail therein see Nevels case Cook lib. 7. and so had the King his licence which is but a dispensation for the time and countermandable by the King and he said that the Book in 2. Eliz. Dyer fo 176. makes it a doubt but he thought it clear for the reasons aforesaid and as to the material point viz. if this land shall be priviledged from seisure by reason of this bargain or not and he said that it shall not be priviledged for this conveyance which is revokable at the will of the Bargainor is meerly fraudulent against any interest of forfeiture for otherwise the Kings subjects are but as ferae naturae which when they are out of their pale the King had no means to reduce them within the Park again for in this case had no means directly to punish this offence upon the body of the offender but by the depriving him of the means of his maintenance and although there be no fraud here in the parties Bargainees yet the fraud in the Bargainor makes the conveyance void against the King for as it appeareth by our books the King cannot be an instrument of fraud although he may be party thereunto see 17. and 21. E. 3. so in the case of an infant cited before by Mountague all which and many others to this purpose of fraud are cited in Farmors case Cook lib. 3. fo 48. and whereas it was objected that here can be no fraud intended in the offender in regard he had a licence to travel and it cannot be intended that he presupposed any countermand of this licence and
Baron answered that he should have them of right see Bartues case in Dyer but the Lord Treasurer said that he saw no reason to satisfie himself thereof Doillie against Joiliffe DOillie Plantiff against Joiliffe in an Action upon the case for false imprisonment of the Plantiffs wife the case was that Leonard Lovies was formerly Plantiff in an action in the Common Pleas against Julian Goddard a feme sole and in this action the Plantiff and Defendant were at issue and a venire facias was awarded and before the return thereof the said Julian took to husband Doillie now Plantiff and after upon a special verdict found in the suit judgement was given in the Common Pleas for the said Julian against th◠said Leonard upon which judgement Leonard brought error in the Kings Bench and a scire facias was awarded against Julian by the name of Julian Goddard as a feme sole and she appeared by Attorney as a feme sole and this as the Defendant said in his answer was by the consent of her husband now Plantiff and after judgement was given to reverse the judgement in the Common Pleas and the entrie of that judgement as it was pleaded by the Defendant here was quod praedict Leonard Lovies recuperet c. versus praedict Julianam c. and costs and damages were taxed c. upon which judgement the said Lovies sued a Capias ad satisfaciendum against Julian Goddard and by vertue of that writ the Defendant here the Sheriff or Devon took the said Julian being the Plantiffs wife and imprisoned her until the Plantiff paid 10. l. which was the cost taxed by the Kings Bench for her deliverance upon which imprisonment the husband only hath brought his action against the Defendant being Sheriff Davenport of Grayes Inne argued for the Defendant and first he thought that between the parties to the error and the first action in the Common Pleas there is an estoppel and admittance that the said Julian continued a feme sole for the process in all the proceedings ought to be as it was in the Original and he vouched 18. Assise pla 16. by which book it appears that if a man bring an assise for lands in the Countie of O. and the Tenants plead a Common recovery of the same land in the Common Pleas this doth conclude the partie to say that the lands did lie else where c. also if an original be depending and before the first Capias or process awarded the Defendant intermarrieth and after a capias issueth against her as a feme sole this is well awarded lib. 5. E. 4.16 and also 5. E. 3. fo 9. and 10. also he said that such a thing as is done between the plea and not after the judgement is not material to alter the proceedings in that course it was begun for the same partie against whom judgement is given shall error have against him for whom the judgement is given except she had married after the judgement for then he agreed that the writ of error shall be brought by the husband and wife in case judgement had been given against the wife while she was sole 35. H. 6. fo 31. and 12. Assise pla 41. and it also appears by 18. E. 4. fo 3. if Trespas he brought against a married wife as against a feme sole and she appears as a feme sole and judgement is given and execution accordingly this is good until it be reversed by error and the Sheriff in such case never ought to examine if it be evil or nor no more then if Trespas be brought against A. my servant by the name of B. and A. is taken in execution the Master shall not take benefit of this misnaming admitting that A. should punish the Sheriff for it also he vouched one Shotbolts case 10. and 11. Eliz. Dyer and 15. Eliz. Dyer 318. in the Earl of Kents case which prove that the Sheriff is to be excused for taking me by a false name and if the Iudges admit this false name yet this judicial writ ought not to be examined by the Sheriff and it was adjourned Shoftbey against Waller and Bromley SHoftbey brought an action upon the case against Waller and Bromley and declared that the Defendants conspired that the said Bromley should commence a suit against the Plantiff and that the Plantiff was then worth 5000. l. and that he was then dwelling in Middlesex and that the Defendants knowing thereof maliciously and falsely agreed that the said Bromley should lay his action in London and prosecute it until the Plantiff were outlawed in the said suit to the intent that his goods should be forfeited to the King and after in performance of the agreement aforesaid the Plantiff suggested that he was dwelling in London and laid his action here which was prosecuted until the Plantiff here was outlawed to his damage c. Tanfield chief Baron thought that if the suggestion was by Bromley to make the process into a wrong County it seemed that the Action should lie against him only but in regard it is shewed in the Declaration that the said suggestion was made by him in performance of the precedent agreement that the action lieth against both which the Court granted Godfrey in this action moved in arrest of judgement and that for two causes the action lieth not upon the matter here it appears by the 4. Eliz. Dyer 214. that a man may say his action wherein an outlawry lies in London and then by the Statute of 6. H. 8. cap. 4. proclamation shall issue into the Countie where he dwelleth therefore the suing of him in another Countie is no such act wherefore an action should be brought no more then if before the Statute of W. 2. cap. 12. a man had brought an appeal Maliciosè yet no remedy before the said Statute as appears in the 13. H. 7. in Kellawaies case because it was lawful to bring an appeal and so notwithstanding the said Statute no action did lie against him who brought an appeal if it abated 9. H. 5. cap. 1. also the Statute of the 18. H. 6. provideth remedy for false appeals or judgement in another Countie maliciosè c. by action of the case whereby it appeareth that in such case the Common Law allowed no action also the Statute of the 18. H. 6. provideth another remedy then that Statute and therefore no action lies against us no more then in the case aforesaid at the Common Law Secondly here is no issue joyned if the Defendants be guiltie of the execution of this practice but only if they be guiltie of the agreement and this is found for the Plantiff but clearly such agreement without execution giveth no cause of action and the word Practizatione comprehends only the going about and not the executing of this conspiracy and therefore the issue should have been general if the Defendants be guiltie or not and therefore he prayed judgement might be stayed and he cited Owen
they ought to joyn in every action to which the wife is intitled before marriage but otherwise it is here as he thought and as to that which hath been said that the declaration ought to have been special viz. per quod consortium amisit uxoris suae it seems that shall be necessarily intended without shewing of it in the declaration but in the case put by Altham if a man bring an action of false imprisonment of his servant he need not shew whereby he lost his service c. because peradventure he had no imployment for him this is good Law by him but otherwise it is in the case of a wife but yet he would be advised thereof as of a thing not mentioned before Altham Baron it may be intended that the husband was also imprisoned with his wife and so did not lose her company except it be shewed to the contrary aswel as it may be intended the Master had no imployment for his servant and after at the next Term Tanfield and Altham Barons agreed that the Declaration ought to be special as Altham Baron conceived or otherwise the wife ought to have joyned in the action which had been better for they said that in all cases where the action is brought for such a matter for which the wife by possibility might have an action after the death of her husband there they ought to joyn and for this false imprisonment the wife may have an action after the death of her husband and therefore they ought to joyn here Snig and Bromley Barons seemed prima facie that the action lies well enough when they joyn or when the husband alone bringeth it and they vouched and Doillies Councel said that they have heard it to be adjudged in the Kings Benth 28. Eliz. in one Cholmlies case and 35. Eliz. in the Common Pleas that an action lieth for the husband alone for a battery made to his wife and so they conceived it good if they joyn or sever in the action and therefore it was appointed that the next Term the presidents should be shewed and the case to be argued as to this point Note that Doillie perceiving the Law against him for this last point or matter because his wife did not joyn commenced his action of new in this Court and this was in Trespas for the beating and imprisoning his wife and in this case the husband and wife joyned and declared to the damage of the husband and wife and the like Plea was pleaded in Bar as was in the other action and the record thereof was read in Court Termino Pasch 9. Iac. and then adjourned and after it was adjudged for the Plantiff Wikes by English Bill in the Exchequer Chamber Trin. 7. Jac. IN the Exchequer Chamber by English Bill this case was depending and argued before all the Barons at Serjeants Inne in Fleetstreet viz. the King exhibited an Information against Wikes for entering into divers parcels of land and Wikes prétending that he had good equitie prayed his relief by English Bill in the Exchequer Chamber and the case upon the said Bill was this Graunt made a lease for years to one Somerfield and Iohn Wintor in Trust and for the benefit of the wife and Children of the lessor rendring rent and after Wintor one of the Lessees and also Graunt who was the Lessor were attainted of the Gunpowder Treason and Wikes married the wife of the Lessor and entred and upon this information he prayed relief in behalf of his wife and Children by this English Bill and first it was agreed by all the Barons that the King by the course of the Common Law had the moitie of the land and no more by the attainder of Wintor and that Somerfield the other Lessee shall be Tenant in common with the King but what remedy he should have if the King took all the profits they agreed not Secondly they agreed by the admittance of Wikes his Councel that the King as to the moity which came to him shall not be ordered in equity to perform the trust reposed in Wintor for the wife of the Lessor for the King cannot be seised to another mans use no more can his estate be subject to any trust at this day as the Attorney general had said clearly which the Court granted but Brock of Councel with Wikes seemed not to be satisfied but that the King ought to execute such trust by equity but Tanfield chief Baron said that before me at another day you were content to be concluded as to this point that there is no equity against the King Thirdly it was debated if in this case the King should have the other moity which was in Somerfield by equity for clearly if the lease had been made in trust for the benefit of the Lessor himself the King should have it by his attainder and then what difference it being made for the benefit of the wife of the person attainted for her husband might have disposed of it being a trust only of a Chattel as he might have done of a Chattel whereof the wife was possessed and he might have wholly released this trust and by consiquence he might forfeit it by his attainder whereunto Snig and Altham Barons agreed and by Bromley his release shall binde but during his life the Attorney general said that he might release all Brock it should be mischievous that his release of this trust should bar the wife of her trust after her husbands death for admit that a man make a lease to A. to the use of his wife for 100. years if she shall so long live and this for a joynture for his wife can her husband prejudice her of this joynture by release of the trust as if he should say no and then à fortiori in the case here for the trust is for the wife and children and the trust for the children cannot be released by the father and consequently not forfeited by him by the Court there is no such Bill depending before us which demands any thing for the King and the Bill which is here exhibited by Wikes prayes nothing but one moity of the term viz. that which in Law belongs to Somerfield which moity by the Common Law we cannot take from him and therefore we will leave you to sue in the office of Pleas according to the course of the Common Law in the name of Somerfield and therefore they gave no resolution if by equity the husband shall forfeit a trust which he had for years in the right of his wife Sir Thomas Overburyes case was opened to be this viz. Robert Wintor was seised in see of six Bullaries at Wich and he covenanted to levy a fine of all his Bullaries and that for 4. of the said Bullaries this should be to the use of John Wintor in tail and for the other to the use of himself in fee with power of revocation and after the said Wintor levied a fine sur connizance de droit
come ceo only of foure Bullaries if this fine and the use of the estate passed thereby shall be directed by the covenant it was the question and it was moved for a doubt what Bullarie that shall be intended whereof the fine is not levied by reason of the incertaintie quaere and it was adjourned Nota that an estreate of divers fines imposed upon several indictments at the Quarter Sessions for several Riots was sent into this Court and the estreat here being mentioned not for what offences the fines were imposed and the records of the indictments were in the Crown office by a Certiorari and the chief Baron Tanfield said that the estreat was insufficient and we ought not to send out Proces upon them because they do not mention the quality of the offence for which the fines were imposed and therefore it may be discharged by Plea yet if the estreat be not warranted by the indictment so that the indictment is discharged for insufficiency in the Kings Bench the Record thereof may be certified into the Chancery and by mittimus transferred hither and we may discharge the estreat and Altham Baron agreed that the partie grieved by such fine upon an insufficient indictment may plead all this matter and spare to remove the Record and if the Kings Attorney will confess the plea to be true it is as good as if the Record had been removed which was not denied An Amercement for a by Law IT was moved for the King upon a lease holden for him that I.S. was amerced 10. l. because he received a poor man to be his Tenant who was chargable to the parish contrary to a pain made by the Township and thereupon Proces issued out of this Court and the Baily distrained and I. S. brought Trespas and it was said by the Barons and ordered that if I. S. will bring an action for the distraining for this amercement be it lawfully imposed or not yet I. S. shall be restrained to sue in any other Court but in this and here he shall sue in the office of Pleas if he will for the Bailiff levied it as an officer of this Court and for the matter Snig said that if I. S. received a poor man into his house against a by Law made in the Township there is good cause of amercement but by Tanfield it is nothing to us that they have a custome to make by-Lawes herein against a by Law made by us also a leet of it self hath no authority to make by Lawes or such an order but by custome it is good Snig and Altham Barons it is good policy to make an order with a pain in a Leet that no person shall receive any such Tenant as shall be chargable to the parish but clearly the Steward cannot amerce one for such a cause without an order with a pain made before Sir John Littletons case SIr Iohn Littletons case was that all the lands of a Monastery were granted unto one Dudley reserving 28. l. rent yearly for a Tenth of all the laid land according to the Statute and after Dudley granted the greater part of this land to Littleton and that he had used upon the agreement made between Dudley and him to pay 20. l. yearly for the Tenth of his part and Dudley had used to pay 8. l. yearly for that which he retained and after Dudley was attainted whereupon his part of the said land came to the King and now the Auditor would impose the charge for all the Tenth upon Littleton but by the Court although the Tenth was Originally chargable and leviable upon all and every part of the land yet it being apparant to them that part thereof came to the Kings hands it was ordered that the land of Sir Iohn Littleton should be discharged before the Auditor prorata and so it was and Littleton to pay only 20. l. yearly Sweet and Beal NOta that in Michaelmas Term 6. Iac. upon a special verdict this case was depending in the Exchequer viz. Anthony Brown devised a term to his wife until the issue of the body of the Devisor accomplish the age of 18. years bringing up the said child Provided that if the devisor die without issue that then the land shall go to the said wife for term of her life paying to the sister of the Devisor 6. l. 13. s. 4. d. yearly which he willed to be paid at two feasts half yearly and that if it be arrear then it shall be lawful for the sister to distrain and to detain the distress until it be paid and the Iury found that the devisor had issue at the time of his death but that the said issue died before he accomplished the age of 18. years and they found also that the rent of 6. l. 13. s. 4. d. payable to the sister was not paid at one day in which it was payable and that no demand was made for it and that Moil Beal who was the right heir entred for the condition broken and made a lease to the Plantiff who being outed by the wife brought an Ejectione firme and Chibborn of Lincolns Inne argued that the entrie of the heir is lawful first he said when he devised to his wife until his heir come to the age of 18. years bringing up the said heir if in this case the heir die within the said age the state of the wife is determined by reason that the education was the cause the land should continue to the wife and the cause being determined by the death of the heir before the said age therefore the estate is also determined and upon that he bouched a case in Mich. 3. Iac. one Collins devised that one Carpenter should have the over-sight and managing of his land until his son should attain the age of 5. years and the son died before he attained the said age and it was agreed admitting that Carpenter had by that devise an interest that it is now determined by the death of the heir to the second matter viz. when it is limited that if the devisor die without issue that then the wife shall have it by that it seems to me that the wife shall not have an estate for life by these words as our case for at the time of the death of the devisor he had issue so that it cannot be said that he died without issue although now we may say that he is dead without issue but in regard that the words of the will are not performed according to the proper intendment of them the Iudges ought not to make another construction then according to the litteral sence the litteral construction being properly the words to bear such a meaning and this as he said may be proved by Wildes case in Cook lib. 6. but more strong is our case because in a case which carrieth the land from the heir there ought to be a strong and strickt and not a favourable construction made to the prejudice of the heir
and therefore he vouched a case between Scockwood and Sear where a man devised part of his land to his wife for life and another part of his land until Michaelmas next ensuing his death and further by the said will he devised to his younger son all his lands not devised to his wife and adjudged that by the said words the younger son shall have only that parcel which was devised to the wife for life and not that which was devised unto her till Michaelmas and yet by Popham it appeareth that his intent was otherwise viz. that all that should go to his younger son so there ought not to be a strained construction made against the heir and so in our case the words being that if he die without issue c. that then it shall go to his wife herein as much as he had issue at the time of his death it cannot be said that he died without issue but that he is dead without issue and this appeareth by the pleading in the Lord Bartleys case in Plowden and he vouched also a case in the Kings Bench 4. Jac. between Miller and Robinson where a man devised to Thomas his son and if he die without issue having no son there it was holden that if the devisee had issue a son yet if he had none at the time of his death the devisee in the remainder shall have it yet he was once a person having a son and so in our case there was a person who did not die without issue and he vouched also the case of Bold and Mollineux in 28. H. 8. Dyer fo 15.3 when a man deviseth to his wife for life paying a yearly rent to his sister and that if the rent be not paid that the sister may distrain it seems to me that this is a conditional estate in the wife notwithstanding the limitation of the distress and he vouched 18. Eliz. in Dyer 348. which as he said proved the case expresly for there in such a case it is adjudged that the devisee of the rent may after demand thereof distrain and yet the heir may enter for the not payment of the rent although it were never demanded so that the subsequent words of distraining do not qualifie the force of the condition although there be there an express condition and in our case but a condition implyed and he said that it seemed reasonable that such a construction for the distress and condition also shall stand as appeareth by divers cases that upon such words the Law will allow a double remedy and therefore he vouched Gravenors case in the Common Pleas Hill 36. Eliz. Rot. 1322. where a lease was made by Magdalen Colledge to husband and wife so that if the husband alien that the lease shall be void and provided that they do not make any under-tenants and to this purpose he vouched the case of the Earl of Pembrook cited in the Lord Cromwels case Cook lib. 2. where the words amounted to a covenant and a coudition and if this word paying should not be construed to be a condition then it were altogether void and idle and such a construction ought not to be made in a will and he conceived that this rent ought to be paid by the wife without any demand upon the pain of the condition and therefore he vouched 22. H. 6. fo 57.14 E. 4 21. E. 4. by Hussey and 18. Eliz. Dyer 348. vouched before and so it was resolved as he said in the Court of Wards in Somings case where a man made a devise paying a rent to a stranger this ought to be paid without demand and he said that the Common case is proved when a feofment is made upon condition that the feoffee shall do an act to a stranger this ought to be done in convenient time without request by the stranger and so here it seemeth although a demand ought to be made by the sister yet the wife ought to give notice to the sister of the Legacy so that she may make a demand and therefore he vouched Warder and Downings case where a man devised that his eldest son upon entry should pay to the younger son such a summe of money here the eldes brother ought to give notice at what time he will enter to the intent that the younger brother may be provided to make a demand Edwards of the Inner Temple contrary First it seemeth that by this limitation the wife ought to retain the land until the issue of the devisor should have come to the age of 18. years for this a time certain and as it is construed upon such words in Borastons case Cook lib. 3. that the Executors there have an interest certain so it should be construed here to refer to a certainty which is until the time by computation that the issue should have attained to 18. years and the rather in this case in respect the devisor had otherwise disposed of the land until the son should have accomplished the said age Secondly it seemeth that the wife hath an estate for life not conditional in so much as the words are not joyned in the case the 18. Eliz. Dyer hath been vouched but that was upon an express condition but here it is by implication and then the clause of distress taketh away the force of the implication which otherwise might be thereupon inferred and therefore in 5. Eliz. Dyer it appeareth that the word Proviso annexed to other words makes it no condition in judgement of Law and so in 14. Eliz. Dyer 311. and he vouched also 18. Eliz. Dyer Greens case that if a man deviseth lands to his friends paying to his wife with a clause of distress this is no condition as it is adjudged Thirdly it seemeth that this summe to be paid to the sister is a rent and therefore ought to be demanded or otherwise in judgement of Law the condition shall not be broken and the 21. E. 4. the case of an obligation to perform covenants c. and a case between Wentworth and Wentworth 37. Eliz. that a demand ought to be made for a rent which is granted in liew of Dower for the wife brought a writ of Dower for the land of her husband the Tenant pleaded that she accepted a rent out of the land in liew of her Dower and the wife replied that the said rent was granted upon condition that if it were not paid at certain dayes that it should be void and that she should have Dower of the land and she said that the rent was not paid at the dayes c. but shewed not in her pleading any demand to be made and therefore it was holden evil pleading for such a rent ought to be demanded or otherwise the condition is not broken and so here Nota that this case was appointed to be argued again but after as I heard the Barons amongst themselves resolved to give judgement for the Defendant upon one point only which was that the estate
avoidance and after confirms the lease here the lease is not good in respect the next avoidance interrupts it for his life but after the death c. the term will be good as it was here lately adjudged and so he thought that in this case the confirmation is not good and also that the Commission not being returned is not good and after one of the Commissioners die before the return it cannot be recurned and by the inrolment here made the lease cannot take his effect with any relation and so be concluded that judgement ought to be given against the King Tanfield chief Baron the Commission for the acceptance of the acknowledgement of the Bishop touching that it is to be known whether this makes it the Deed of the Bishop and that the Commissioners should return c. the confirmation in this case was made in the life of the Bishop Lessor and of the Queen Lessee although that some of my brethren conceive the Record to be otherwise also in this case Dimock entred by vertue of his lease before the inrolment of the lease made to the Queen as the Record purporteth to the points First I conceive that nothing resteth in the Queen without inrolment but if Lessee for years be outlawed the King shall have this lease by the outlawry for the outlawry is intended to be upon Record but of a wardship for land that is not in the Queen by the death of the Queens Tenant without an office because there is no matter of Record if an Alien hath a lease of land this is forfeited yet he shall have personal Chattels and as to the Book of 18. E. 3. cited on the other side where the King brought a quare impedit c. this may be well agreed for the Prior of Durham confessed by Record that he had made a grant and this is a sufficient Record and as to the book of 20. E. 4. where the Patron was outlawed and before the outlawry the Church became void that the King shall present it may be well agreed although that no office be found for this presentation is but a thing personal and transitory and therefore those Books prove nothing in this case Secondly he said that when this lease was acknowledged before Commissioners yet that was not sufficient to make a record to intitle the King and it is here expresly denied in the Bar that this lease was certified into the Chancery in the life of the Queen and therefore he thought that here was no Record to intitle the Queen and to this purpose he cited a case in 19. Eliz. Robins and Greshams case if a Recognizance were acknowledged before a Master of the Chancery and not inrolled this is no Recoâ—d and an Action of debt lieth not thereupon and the 34. Eliz. in Brock and Bainhams case in this Court a Recognizance was taken before a Baron of this Court yet this was no Record without inrolment and therefore the bare acknowledgement in our case is no Record also he denied the opinion of Davers in 37. H. 6. to be Law but only for personal Chattels and the 12. Eliz. Brook and Latimers case was adjudged against the opinion of Davers for land or leases Thirdly he said that the successor of the Bishop comes in paramount the lease made to the Queen and the new Lessee entring before any inrolment hath made the successor of the Bishop as in his remitter and when an antient right comes this prevents the relation which otherwise might be by the inrolment and he said that the first lease here made to the Queen is meerly dead until inrolment and he vouched the 11. E. 4. fo 1. Vactons case the discontinuor enters upon the discontinuee after the discontinuee dieth his heir within age the discontinuor dieth this causeth a remitter and so by him if the disseissee enter upon the heir of the disseissor being an infant and dieth this avoids the descent by reason of the antient right which the disseissee had and by 7. H. 7. and 11. H. 7. Eriches case it appears that an Act of Parliament will not revive a thing that is meerly dead by reason of any inrolment and much more here an inrolment cannot revive this lease which is meerly void by the death of the Lessor and the entrance of the Lessee of the Bishops successor and there is a great difference betwixt the inrolment in this case and the inrolment of a bargain and sale in regard that the sale is dead before the inrolment and yet in the case of bargain and sale it was adjudged in the Common Pleas Pasch 2. Jac. in Sir Thomas Lees case called Bellinghams case that if a man bargain land to A. and before inrolment of the Deed A. bargaines the land to B. which second bargain is inrolled this inrolment makes not the bargain good to B. for the relation of the first is only to perfect and make good the conveyance to A. from all incumbrances after his bargain but not to make the second Deed good which was void before also in 36. Eliz. in Sir Thomas Smiths case if the Bargainee suffer a recovery before the Deed inrolled yet that doth not make the recovers good and he said that in this case until an inrolment of the lease made to the Queen there is no Lessee and a lease cannot be without a Lessor and Lessee and before an inrolment of the lease the Lessor is dead so that there never was a Lessor and Lessee in life together and therefore the inception of this lease was altogether imperfect before the consummation came and so it leemeth by him that the death of the Bishop Lessor intervening before the inrolment is the principal cause that the first lease is not good as to the 4 th point of confirmation it seems to me in regard that the Bishop was seised in right of his Bishoprick and the Dean and Chapter have no interest in the land so that an assent is only sufficient in this case it seems to me that the confirmation as you call it is good enough for it is clear that an assent may be aswell before the lease as after for it passeth no interest no more then an Attornment Cook lib. 5. Foords case proveth this diversity plainly and by the same reason also it seems to me that this assent of parties who have no interest is good enough without inrolment but otherwise it should be if a confirmation were required in the case and as to the pleading I think the Bar is good and as to the exceptions which have been made viz. if the lease supposed to be made to the Queen be answered and he said it was good enough for the purpose of the Defendant is to bring the matter in Law before the Iudges and the matter in Law is if it were any lease or not as the information supposeth and therefore the Defendant ought not to agree with the information for the matter in Law and
the book upon which I do principally relie is a point resolved in the principal case of Altonwood Cook lib. 1. fo 45. or 43. where the King recites that he had made a lease to A. and B. and that whereas they had surrendred the Patent of the said lease he in consideration of the said surrender makes a new lease to A. and B. here although that in fact the demise supposed in the recital to be made to A. and B. was void and so the King was deceived in the matter of recital yet in respect that he made the surrender of the Patent to be the sole consideration of his grant the falsitie of his recital is not material for the Iudges ought to take it to be a Motive to the King in his Grant which he did not express to be a Motive especially if he express another Motive and so in our case also it should be greatly mischievous to Hitchmore if this falsitie of the recital should prejudice him for by intendment it is not in his power to inform the King of this lease which was made by Burwel to Wilkinson because he is a stranger unto it and also the lease is not upon Record and therefore Hitchmore is not bound to take notice of it see temps H. 8. Brook Action upon the case c. and also the lease here made by Burwel to Wilkinson is to have continuance but for 8. years after the time of the commencement of the new lease made to Hitchmore and so the King then shall have it liable to his rent newly reserved and so in these circumstances our case differs in matter of prejudice from Barwicks case Cook lib. 5. for there the Kings Lessee made divers under Lessees for all his Term and after he himself by fraud accepted a new lease of all rendring rent which new lease was in consideration expresly of a surrender of the first demise and of all the estate c. and this lease was there void and so the diversitie appears also in 18. Eliz. Dyer 352. where the deceipt to the Queen was in point of express consideration and yet the Lord Dyer said that in that case the grant was not void and then much more in our case but admitting that the lease should not be good notwithstanding this false recital yet it hath been objected that the consideration is not performed according to the Kings intention for the words of the lease are know yee now aswel for a fine of 30 l. as for that that Hitchmore had assumed to repair the Mills at his costs and charges c. and that here the said Hitchmore had not assumed by Record so that the King may have any remedy against him for his not repairing and that the contract is no assurance it seems to me that the words for that that he assumed and the express Covenant was sufficient to satisfie the intent of the Consideration for the words are the words of the King and of the Patentee also in judgement of Law and therefore Pasch 7. Iac the Lord Evers and Stricklands case was adjudged the Lord Evers had made a lease by Patent in which these words were contained viz. and the aforesaid Lessee shall repair the aforesaid Tenement and that after the reversion was granted to the Lord Evers and it was adjudged that the Lord Evers should have a Covenant against the Lessee and this was in the Kings Bench Pasch 7. Iac. and so here for that he had assumed upon himself it is an accord sufficient to testifie his promise whereupon the King may have remedy to compel a reparation to be made and although that the words are not personally spoken by the Lessee yet he shall be bound to perform them as it is in 38. E. 3. fo 8. if one takes benefit by a lease which he never sealed unto yet he shall be bound to a nomine penae therein contained and besides here is an express Covenant and therefore c. Thirdly it hath been objected that the estate is conditional by these words he hath assumed to repaire which condition is not performed and so the lease made to Hitchmore void and 38. H. 6.34 and 35. hath been vouched in proofe which book I do agree for there the King had no other remedy to have his intent performed and also the words there are ad intentionem doth not make the estate conditional and he vouched Brook condition 96. and 43. E. 3.34 and Perkins 144. that if the Queen give land and that the Donee should not Amortize that makes not the estate conditional for the Amortizing and so if a man make a feofment to A. that he should pay 10. l. and that R. may enter for non-payment yet this maketh not a Condition the reason is because the first words leaves it to the libertie of the feoffee and the words after shall not be construed to make it conditional but I agreed the case put in Sir Thomas Wrothes case in Plowden Pro eo quod relaxabit that this makes a condition if it be not performed because it is of a thing futurely to be done or Executory and the King had no other remedy also in our case the circumstances manifest that the Kings intent was not to make a conditional estate upon this lease for he accepted an express Covenant for the requiring and he vouched the Lord Cromwels case in Cook lib. 2. fo 72. and he said that if here the lease had been made to Hitchmore in respect he had agreed to increase his rent and further had a clause of distress for the rent it shall not be intended that the King in such case purposed to make the lease conditional if the increase be not paid because he had provided himselfe a distress wherein although that the King had no more remedy then by the Law he should have had without these words yet the words manifest his intent to have no other remedy but the distresse see 7. E. 6. fo 79. and 3. E. 6. Dyer Non licebit alienare makes no condition in the case of the King without the words subpaena foris facturae and he vouched 4. Ma. Dyer 138. the Countesse of Surreyes case and also 18. Eliz. Dyer 348. which as he said was one Greens case where it was adjudged that if the King provide himself of another remedy the words by reason of any implications shall never be construed to be conditionall and so was the opinion of Manwood and Harper in Wellock and Hamonds case cited in Barrastons case Cook lib. 3. and 31 E. 1. Voucher 141. A man made a Feoffement with warranty against all people rendring rent and further willed that if the Feoffee could not enjoy the land that he should pay no rent here the words subsequent take away the force of a recovery in value which the warranty otherwise would have given and so here the King had appointed the remedy which he intended to have and therefore it shall not
in 1. Jacobi and no other conviction ever was and yet de facto he continued a Recusant untill his death and his Land viz. two parts thereof were seised in his life and the King answered of 200. l. thereof which incurred in the moneths contained in the Indictment and now a Writ is issued which supposeth the said Robert to be indebted to the King in 20. l. for every moneth be lived after 28. Eliz. untill 1. Jacobi for his Recusancy which amounted to 4000. l. which Writ also commands to enquire what Lands the said Robert Becket had at the time of his death and thereupon it was found that he had divers Lands c. and upon a Scire facias to the Terretenants to shew cause wherefore two parts of the Lands of the said Robert Becket should not now be seised for the debt of the Recusant aforesaid one Henry Becket as Terretenant or Tenant of the Premisses pleaded that the King is satiefied of all the 20. l. and for all the moneths that the said Robert was convicted to be a Recusant and he vouched the Constat thereof under the hand of the Deputy of the Pipe Office and for the residue he said that by 28. Eliz. cap. 6. it is amongst other things enacted that if any person which hath not repaired or shall not repaire to some Church Chappell or usuall place of Common Prayer but hath forborne or shall forbeat the same contrary to the Tenor of the Statute of 23. Eliz. cap. 1. and hath been heretofore convicted for such offence shall forfeit c. provided that it he hath made submission and been conformable according to the true meaning of the said Statute or shall fortune to dye that then no forfeiture of 20. l. for any moneth or for seisure of the Lands of the same offender from and after such submission and conformity or death and full satisfaction of all the arrerages of 20 l. monethly before such seisure due or payable shall ensue or be continued against such Offendor and traverseth without that that there is any Record besides this Writ to charge the said Robert Becket deceased of or for the summe of 4000. l. towards our said Lord the King c. and so prayeth to be discharged thereof Vpon which Plea the Kings Atturney Generall demurred and Coventry argued that the Plea is good he said that there are three Points to be considered First that if a man be convicted of Recusancy in 28. Eliz. for 10. moneths then passed and de facto continueth a Recusant untill his death in 1. Jac. without other conviction if now the King can claim 20. l. a moneth for more moueths then are contained in the Indictment whereupon he is convicted Secondly admit that the King may have the forfeiture for every moneth whereof no conviction was as well as if a conviction had been then if the King can seise the Lands for the payment thereof after his death no seisure being had for it in his life by the Stat. of the 28. Eliz. or if the power of seisure be altogether gone by the death of the Recusant Thirdly admitting that the King shall have more then is contained within the Indictment if the Debt it self be not gone by the death of the Recusant To the first Point there is no President to be found that any man convicted before 28. Eliz. was charged to the Payment of more then that which was within the Indictment and the words of the Statute of 28. Eliz. contained within this Clause which provides for the payment due since the Conviction do not inforce any construction to the contrary and in this Clause the words being do yet remain unpaid are not proper words but for a thing payable before this Statute for so many moneths whereof he was convicted of Recusancy and the words without any other conviction are to be understood for so much as was unpaid of that contained in the Indictment and the last Clause of this Branch of the Statute hath not the words without any conviction and the other Clause provides that by expresse words for the future time every person who shall be once convicted shall forfeit c without other conviction and it was resolved Hill 4. Jacobi in the Kings Bench between Grinstone and Oliver that the Statute of 28. Eliz. alters and adds three things to the Statute of 23. Eliz. 1. That all the money due for Recusancy shall be paid into the Exchequer 2. This limits a time for payment thereof yearly viz. in the four Terms of the year 3. This giveth a penalty viz. power to seise all the goods and two parts for non-payment but all that is only for that which was payable before the conviction and therefoâ—e the words in the Branch which contains our Case have apt words of construction that he shall pay all due for the paine of seisure for 23. Eliz. gives no seisure but imprisonment if payment be not made within three moneths after judgement and so in our case Conviction ought to precede the duty To the second Point it seemeth that the power of seisure within this Statute is gone by the death of the Recusant for before the Statute of 1. Jacobi the power for seisure was but a penalty that if the party fail in payment of 20. l. a moneth then c. and in all cases upon penall Laws if the party die before the penalty inflicted this shall not be inflicted at all and that this is but a penalty he vouched one Grayes case in 1. and 2. Jacobi to be adjudged accordingly Also the words in this Statute which give the seisure of Land appointeth a levying to be of the 3. part for the maintenance of the Offendor his Wife Children and Family and after his death he hath no Wife so that if it be demanded when the seisin must be the answer is then when a third part may be left for his use which cannot be but in the life of the Recusant Also it appoints that the seisure ought to be by Processe which ought to be in the life of the party by intendment Also the Proviso of the Statute of 28. Eli. saith that if any person shall dye no seisure shall insue or be continued aâ—d out case is within those words for in regard there hath been no seisure in his life therefore after his death no seisure ought to insue and the words which purport another semblance of construction viz. and satisfaction of all arrerages are to be understood only in case where there was a former seisure that is in the life of the party and have reference to the words to be continued and that the intent is so he said that the words are so that the Heir shall pay no more but so much as the Land was seised for To the third it seemeth that in this case the debt it self is gone by the death of the party At the Common Law a penalty shall never be recovered against the
Bent and another for a Close it was ordered and an Injunction accordingly awarded that the Defendant should suffer the Plaintiffe to injoy the said Close with the appurtenances until c. and contrary to this order the Defendant had put his Cattle into the Close and thereupon an Attachment issued to answer this contempt and he said that he put in his Castle for a title of Common and it was ruled that this was no breach of the Injunction because the Common was not in question in the Bill but only the title of the Close wherefore he was discharged of the contempt and with the appurtenants doth not include the Common to be taken in the said Close Henry Clares case UPon a motion made by Serjeant Barker it appeared that one Henry Clare was indebted to the King and was seised of a third part of certain lands in Norfolk and that Mr. Richardson of Lincolns Inne was seised of other two Acres of the same laud as Tenant in Common and the beasts of Mr. Richardson pastured promiscuously upon all the land and Henry Clare put more Cattle in and upon proces to levy this debt for the King the Sheriffe took the Cattle of Mr. Richardson and sold them and it was now ruled that in regard it was lawful for a Tenant in Common to put in his Cattle upon all the land and that if they depasture all the grass the other hath no remedy and for that cause the Sheriffe could not take those Cattle for the debt of another Tenant in Common but otherwise it would be if the Cattle had been levant and Couchant upon the land of the Kings debtor and in the principal case the Sheriffe was ordered to restore the monie to Richardson for which they were sold and that if they were worth more yet the Sheriffe should not be charged therewith except it could be made appear some fraud in the sale or that sufficient suerties were to pay and discharge the dutie but if my Cattle are levant and Couchant upon the land of the Kings debtor the King may distrain them damage Feasant but he cannot distrain them for the debt by Tanfield chief Baron and Altham clearly to which Baron Bromley consented but Snig said beware of that Smith and Jennings case VPon evidence to a Iury it was said by Tanfield that if a man make Charter of Feofment of lands in two Towns and a Letter of Attorney to make livery and before livery made by the Attorney the Feoffor himself maketh livery of the land in one Town this is a Countermand of the Letter of Atturney and so livery cannot be made by the Attorney in the other Town and quere if the Towns were in several Counties Bacon the Kings Solicitor said that if a man make a Charter of Feofment of two several Acres whereof one is in lease for years and the other in demeasne and the Feoffor makes a Letter of Attorney to make livery and before that be executed the Feoffor himself makes livery now although that one Acre cannot pass by this livery because it is in lease yet this is a Countermand and revocation of the authoritie given by the Letter of Attorney for his intent is manifest so to be to which Tanfield and all the Court agreed Hobert Attorney general said that in this case although that one of the Acres was in lease yet in regard it appeareth not that the Lessee was in actual possession therefore he conceived that it should be construed that the Lessee was not in actual possession at the time of the livery made by the Lessor in the name of all and in respect there was no house upon the Acre in Lease it may be intended that the Lessee should be in actual possession but for that cause he rather conceived that it should be construed that the Lessee was not in possession and so the livery might well operate to pass it Tanfield and all the Court denied that the livery was good to pass it although that the Lessor was in actual possession but where Mr. Atturney alledged further that before the livery made an Infant had a Term for years in this Acre in lease and that the Feoffor at the time of the livery was gardian to the Infant and thereby had a possession therein and therefore the livery made in the other Acre in the name of all should be good to pass all to which the Court agreed and thereupon directed the Iury to finde the livery and seisin to be made of all and in this case the Court inclined that because this Feofment was made but ten dayes before that the Feoffor committed Treason and in asmuch as it was made to the use of the son being an Infant and not upon consideration of marriage that therefore the Feofment should be fraudulent and void as to the King but the Atturney general said that this Feofment was made in performance of a precedent agreement viz. it was agreed that the Feoffor should make such a conveyance to an use c. and that the wife of the Feoffor also being an Inheritrix should make such a conveyance of her land which was done accordingly and upon proofe of this agreement the Court inclined that it was no fraud and in this case it was ruled by the Court if parties have matter of evidence by the Records of this Court they ought to produce the Records themselves for Copies of them are not allowable It was said by Altham and agreed by the Court that if an Information be exhibited for intruding into a Close the 24th day of March and for the asportation of 9. Cart Loads of Wheat betwixt the 24th of March and the first of October the which the Detendant converted c. and upon not guiltie pleaded the Jury found that the Defendant took three Cart Loads of the said Corn upon the 24th day of March and after before the first of October they took also three Cart Loads more and damages were assessed for all that here no judgement shall be given upon this verdict for the Information doth not charge the Defendant with the taking of any part upon the 24th day of c. and then in regard that damages are more judgement can be given for no part of it see Cook lib. 5. Plaisters case but this case being moved at another day Tanfield said that he having inspected the Record he found the verdict insufficient for another cause because the Jury found that as to one Cart Load of Wheat to the value of 20. l. the Defendant was guiltie and doth not mention to what damage viz. to the damage of 100. s. or otherwise and by him ad valentiam is not sufficient without shewing also to what damage and for that cause by him a venire facias de novo ought to be awarded and so it was done by the Court. Edwards case EDwards case was that an erroneous judgement was given in a Coppihold Court where the King was Lord and this
was in a Formedon in remainder and it was moved now by Serjeant Harris if the partie against whom it was given may sue in the Exchequer Chamber by Bill or petition to the King in the nature of a writ of false judgement for the Reversal of that judgement Tanfield seemed that it is proper so to do for by 13. Rich. 2. if a false judgement be given in a base Court the partie grieved ought first to sue to the Lord of the Mannor by petition to reverse this judgement and here the King being Lord of the Mannor it is very proper to sue here in the Exchequer Chamber by petition for in regard that it concerneth the Kings Mannor the suit ought not to be in the Chancery as in case a Common person were Lord and for that very cause it was dismissed out of the Chancery as Serjeant Harris said and Tanfield said that he was of Councel in Pettishals case in the time of the Lord Bromley where it was debated at large if such a judgement ought to be reversed by petition in the Chancery in case where a Common person was Lord and at last it was decreed that it should be as in that case of Patshal and for the same reason here the King being Lord and therefore day was given till the next Term to shew their errours and Serjeant Harris said that the errors are in effect no others then were in the case 9. Eliz. Dyer fo 262. and in Godmanchesters case and it was adjourned Scot and his wife against Hilliar SCot and his wife Plantiffs against Hilliar for these words spoken of the wife viz. she would have cut her husbands throat and did attempt to do it Hutton Serjeant in arrest of judgement said that these words are not actionable for the will or attempt is not punishable by our Lawe and he vouched Cockains case Cook lib. 4. cited in Eaten and Allens case but by the Court an Action lies for the attempt is a cause for which the husband may be divorced if it were true and it is a very great slander and Baron Snig said that in the same Term a judgement was given in the Kings Bench and was affirmed in the Exchequer Chamber upon a writ of error for these words He lay in the high way to rob me and therefore let judgement be entred for the Plan̄tiffe but it was adjudged in the principal case that for the words she would have cut her husbands throat no Action would lie Gooches Case A Coppyholder surrenders into the hands of the Customary Tenants to the use of Anne his Wife and after before any Court the said Coppyholder surrenders the Land into the hands of other Customary Tenants to the use of the said Anne for her life the remainder to Percie in Fee upon condition that he in remainder his Heirs should pay 20. s. per annum at Michaelmas for ever the first payment to commence immediacely after the death of the said Anne viz. at the next feast of St. Michael and this to be paid in the Church Porch or D. to the Church Wardens of D. in the presence of four discreet Parishioners or otherwise that a stranger should re-enter and at the next Court both these surrenders were present and the Steward admitted the said A. according to the second surrender and she dyed and now upon pretence that the rent of 20. s. was not paid by the Heirs of him in remainder the Heir of Gooch who made the surrender had entred and thereupon an Action was brought and upon the evidence the Jury to the County of Bedford now at the Bar These matters were moved by Serjeant Nichols That a surrender into the hands of Customary Tenants cannot be Countermanded and therefore the second surrender void and the admittance shall work to such uses as the first surrender was made as in Anne Westwicks Case Cook Lib. 4. And to prove that a surrender into the hands of Customary Tenants is not countermandable he said that it is not countermandable by death nor surrender Cooke lib. 4. in his Coppyhold Cases That a presentment in the Court may be after the death of the surrenderer and the admittance thereupon is good and he compared it to the Case of the delivery of a Deed as an Escroll which may be delivered as his Deed after the death of the Maker as it is in Jennings and Braggs case Cook lib. 3. which was not denyed by the Court Serjeant Dodderidge said that when a surrender is made upon condition that he shall pay a summe of money to a stranger these words make an estate conditionall and give power implyedly to the Heirs of the party who did surrender to re-enter for non-payment and the words which give power to a stranger to re-enter are meerely void neverthelesse the precedent words shall stand and make the estate conditionall Tanfield Littleton saies that such a re-entry is void for a re-entry cannot be limited to a Stranger Nichols Serjeant said that if a surrender be made that he shall pay so much money that this makes the estate conditionall and gives a re-entry to the Heirs of him who did surrender But when it goes further and doth not leave the condition to be carried by the Law in such case all the words should be void because it cannot be according to the intent as in the case of a reservation of rent the Law will carry it to the Reversion but if it be particularly reserved then it will go according to the reservation or otherwise will be void and so here Tanfield Admit that here was a conditionall estate by vertue of the Surrender last made and this condition is also to be performed to a stranger which generally ought to be taken strictly yet as it is here he who will take advantage thereof ought to prove a voluntary neglect in the party in the not performance of the Condition and inasmuch as there is no certain time appointed when the payment of this Annuall rent should be made but generally at Michaelmas next after the death of the said Anne thereby in this case the Chuch-wardens ought to notifie the death of the said Anne before the first day of payment by reasonable space or otherwise the condition is not broken and also it is appointed here to be paid in the presence of four discreet Parishioners by the party who should perform the condition yet by intendment he hath no notice who are discreet or who are not especially he being an Infant as in our case he is and therefore although the condition is to be performed to a stranger which generally ought to be performed strictly according to 12. E. 3. Yet this is to be intended only in such cases where the party had certain notice of all circumstances requisite for payment thereof and therefore he directed the Iury that for want of knowledge of such circumstances they should give a Verdict that the condition was not broken And Dodderidge
will speak to such things which in my opinion will not avoid the Patent First it seems that this want of not assuring doth not vitiate the Patent for the word Assumpsit supposeth matter of Fact executed and whether it be true or false it cannot be now examined no more then in the Cases put 21. Ed. 4. and 26 H. 8. In consideration of service done although there was no service done yet that shall not avoid the Patent Sir Hugh Cholmlies case Cook lib. 2. Recitall of a matter in Pais and not of Record which is not materiall nor valuable doth not vitiate the Patent 37. H. 6.27 The King in his Privie Seale suggests a matter in Fact this doth not destroy the Patent also although that the consideration is aswell for that he assumed to repair as c. and it is found that he hath not repaired yet this fault shall not avoid the Patent for as it seems here it is not in nature of a conditionall estate or Grant as if it had been in consideration he shall repaire for as the words are here placed it is intended that the Queen will relie upon the Assumpsit and not upon the condition and grant and it seems that the Patent is void only upon the misrecitall and the false suggestion which is the first Point for it appears by the misrecitall that the Queen was deceived in a thing materiall and valuable and therefore the Patent void and yet I agree that every false ricitall or suggestion doth not avoid a Patent as in 9. Ed. 4. Baggots Ass 29. Ed. 3.7 if the King recite in his Patent that he had made a precedent Grant upon a Petition yet this falsity doth not avoid the Patent and in 27. Ed. 4. although that this falsity be in point of consideration yet if it be not for matter of profit and valuable to the King it doth not avoid the Patent but if it appear that the Kings intention was grounded upon a matter of value and substance and that he was therein deceived the Patent is for that cause void as in 9. H. 6. fo 2.8 H. 7. fo 3.21 Ed. 4.9 H. 7. fo 2. and 11. H. 4. fo 1. and this is all one as if it should appear in the Recitall or consideration that the Kings intention was grounded upon a matter of value and the King therein deceived therefore in Altonwoods case Cooke lib. 1. If the King recite that A. is indebted unto him as Executor of B and he release to him all demands generally yet nothing shall be released but that which he owed as Executor and so if the King recite that whereas an Advowson is holden of I. S. and he gives Licence to appropriate if the Advowson be holden of the King this is void 19. E. 3. Fitzh Grants 58. It seems cleerly that if it appear by the Patent expresly that the intent of the King was deceived and abused the Patent shall be void although it be not in matter of recitall or in matter of consideration neither as in 9. Ed. 4. fo 6. and 8. by Neale 21. Ass pla 15.40 Ass pla 36. The King gives Licence to his Tenant to aften in Fee and afterwards it appears that this Tenant was but Tenant in Lail and so in the case of the Market or Fair of Torrington cited in Altonwoods case and in our Case the Queen is deceived and misinformed in two Circumstances materiall and of value First for that she conceived that a greater quantity of the thing demised to Potter is surrendred then in truth there was and therein she is deceived for part of the thing is not come to her hands by the surrender Secondly the Queens intent was to make an intire Lease of all in possession and this cannot be for part of the thing it enures but as a Lease in reversion or future interest and therefore void as it is in Altonwoods case Cook Lib. 1. and the Queen hath a double prejudice hereby First because she cannot distrain for her rent reserved in that part which is not surrendred Secondly she cannot enter therein for the condition broken wherefore c. Tanfield accordingly that judgement should be given for the Plaintiff The Patent recites That all the Term-which Potter had surrendred c. where in truth it was not so and therefore it is cleere that the Queen is deceived therein and the Grant void for it was the very inducement which procured the new Patent and this recital is grounded upon the words of the deed of surrender so yâ— the surren is grounded upon the information of Hitchmore contained the surrender And if in that Clause Hitchmore had been well advised the Lease to him ought to have been A. having of the Mills in possession and A. having the Messuage and Garden after the Term which Wilkinson had should be expired and the reservation of the Rent ought to have been expressed accordingly for as it is shuffled together the condition cannot avoid the surrender nor the rent cannot issue out thereof Therefore it was adjudged in 9. Eliz. in the Common-Bench in the Bishop of Salisburies case B. seised of two Acres one whereof was in Lease to A. for years B. makes a Lease of both to a Stranger to have yâ— one in possession the other in reversion rendring 20. s. rent entirely now this rent shall issue out of that in possession during the Term in A. and after it shall issue out of the whole as one intire rent and so it is in our Case for default of severall reservations for this is one intâ—erent and then the Queen cannot distrain upon all the Land as she intended so in our Case wherefore I adjudge the Patent void not upon the point of recitall that is not for the not recitall of a Subjects Lease viz. the Lease of one Wilkinson but it is for the cause of misinforming the Queen in the matter of value and by consequence as hath been said Nemo tenetur informare qui nescit sed quisquis scire quod informat And where Snig hath said that this Patent is made Ex certa scientià mero motu And for this it cannot be intended that the Queen was gull'd upon the information of the party I say that there are not any words in the Grant to prove that it was Ex mero mortu c. And for that it seems Snig had no true Copy of the Case yet if these words were in the Patent it is not void for a triviall and petry mistaking yet in matter substantiall it will not help it as if the King be misinformed of his estate in such a thing to be granted or of estates which are in Lease for these are matertall things 21. Ed. 4. by Huffey and Briant if the King recite that whereas I have given my Land of 100. l. value to him or whereas I have given to him the Mannor of D. and he grants to me the Mannor of S. if this recitall be
false the Patent is void although it hath these words Ex certa scientia et mero motu and so is 18. Eliz. Dyer 352. where the Patent was ex certa scientia et mero motu c. but there Dyer held that this falsitie in the matter of Recital did avoid the Patent notwithstanding the words ex mero motu c. but he held it otherwise if it were in a consideration which is faise for at that time the point of falsitie in matter of consideration for 100 l. to be paid although it be much contraverted in our Books and it seems in what place soever of the patent it appears that the King is mis-informed deceived in any matter material or concerning his own estate in the thing to be granted that that will dictate the Patent and therefore 17. Eliz. the Queen seised of the Mannor of D. grants all her purpartie of the Mannor of D. if in this case a Common person had granted by such words the Mannor had passed but in the Queens case it will be a void grant because a thing which she intended to pass cannot pass in such plight as she conceived it viz. as a purpartie and 36. Eliz. the Queen granted all her portion of Tithes c. although she had a Parsonage there yet it doth not pâ—â—s for this manner of Appellation implies that the Queen was mis-informed and not well instructed of the thing to be granted and therefore void see Cook lib. 4. in Bozuns case Ex certa scientia et mero motu c. doth not help it also if the King recite that whereas he had such land by the attainder of I. S. where in truth he had it not by his attainder now although that he grants this land Ex certa scientia et mero motu yet this will not pass but if the King be not deceived in the point of intitling himself but in the deducing of his title that will not prejudice the Patent as if the King recite that whereas I. S. had land by descent from his father and he grants it to the King and the King doth re-grant the same to I. S. this grant is good notwithstanding that I. S. had it not by descent from his father see the Lord Lovels case in Plowden that if the King be deceived only in the point of mis-conveyance the Law will not avoid the Patent as if be grant to one and his heirs born at D. the last words are void and the grant is good Pasch 42. Eliz. it was agreed that if the King be Tenant for life or years and makes a lease for one and twenty years this lease is void to all intents against the King because it appears not in the grant what estate the King had and by that lease the King conceived that he had power by his estate to make an absolute lease whereas legally his lease ought to determine by his death so by implication it is manifest that the King was not well instructed of his estate 39. Eliz. the Queen leased for twenty one years to begin whensoever the land should fall in possession by the expiration of any former lease then in being if in that case there were no precedent lease then in being this lease will be void for these words implie that the Queen conceived her former lease to be in being and so impliedly she is deceived in her intent in like manner in the principal case the Queen was deceived in her intention for the recital is that all the estate which Potter had is come to the Queen by surrender and in truth all the estate is not come unto her in respect of a mean estate to Wilkinson c. as to the second point it seems the consideration being that he did assume to new build implies asmuch as if he had said he faithfully promised and then it is all one as if it had been for that that he shall build for it is a consideration executory and is of value and then the not performance thereof vitiates the Patent and the estate was as if it had been by a limitation to cease and these words that he did assume upon himself cannot be construed to any other intent but unto an executory consideration because the King hath no remedy by way of Action for the breach of this promise and it cannot be conceived that the Covenant is satisfied in giving securitie for it is observable that the Covenant is but the ordinary Covenant viz. to repair and keep repaired and so a Trivial reparation will satisfie that but it appears that the Queens intent was not to make the lease for such a petty consideration because the Lessee had undertaken at his own charges to new build the Mills but the express Covenant doth not binde him to the new building of them and in 6. Eliz. the like lease was made of the Mannor of Lidlescourt to Customer Smith and the lease was for that that he assumed that he at his costs would c. and he avoided his lease upon a former lease made to A. of the premises and in truth the lease formerly made to A. was meerly void upon the making of this lease though perad venture the condition may be good and the consideration performed but the Queen was not well instructed of her title also in this case the lease to Hitchmore is not determined by a condition as it hath been objected but it ceaseth and is determined by a limitation and this may well enough revest in the Queen without entrie or office because it was but a Term and such words purporting an executory consideration in the Queens case implies as much as if in case of a Common person it had been said expresly to cease upon an act not performed for in the Kings case the Law speaketh and if so then the lease for years is void and the Patentee may enter without office and all considerations executory in leases made by the King amount to a conditional limitation and then he who will have benefit by such a lease ought to aver the performance of the consideration as if a man declare upon a lease made unto him c. if I. S. should so long live he ought to aver his life in the Declaration because it determines by limitation at his death but otherwise it is upon a condition if a Parson make a lease for years the Lessee must aver the life of the Parson because by his death the lease ends by a limitation implied but otherwise it should if it were upon condition for the performance of that needs not be averred but that ought to be shewed on the other part and so it seemeth that as wel for the point of falsitie in the recital as also in the not performing of the consideration that the lease is void and the Plantiffe should have judgement which was entred accordingly Snig Baron was of opmion against all the other Barons and he held that
declares the use to be to himself for life and after to T. B. with power of revocation and to limit new uses and if he revoke and not declare then the use shall be to the use of himself for life and after to Henry Becket with power in that indenture also to revoke and limit new uses and that then the fine shall be to such new uses and no other and after 42. Eliz. by a third Indenture he revoked the second Indenture and declared the use of the fine to be to the use of himself for life and after to Hen. Becket in taile the remainder to I. B. c. R. B. dies and T. B. his brother and heire is found a Recusant and the lands seised and thereupon comes H. B. and shews the matter as above and upon that the Kings Atturney demurreth Bromley and Altham Barons that the Declaration of the uses made by the third Indenture was good and he having power by the first to declare new uses may declare them with power of Revocation for it is not meerly a power but conjoyned with an interest and therefore may be executed with a power of Revocation and then when he by the third Indenture revokes the former uses now it is as if new uses had been declared and then he may declare uses at any time after the Fine as it appears by 4. Mar. Dyer 136. and Coke lib. 9. Downhams case and in this case they did rely upon Diggs case Cooke lib. 1. where it is said that upon such a Power he can revoke but once for that part unlesse he had a new power of Revocation of Vses newly to be limited whereby it is implyed that if he had a new power to appoint new uses he may revoke them also Snig Baron to the contrary and said that he had not power to declare 3. severall uses by the first contract which ought to Authorise all the Declarations upon that Fine and then the Revocation by the third Indenture is good and the limitation void and then it shall be to the use of R. B. and his heirs and so by the death of R. B. it doth descend to T. B. the Recusant and also he said that such an Indenture to declare uses upon uses was never made and it would be mischievous to declare infinite uses upon uses Tanfield held that the uses in the second Indenture stand unrevoked and the new uses in the third Indenture are void and then H. B. ought to have the Land again out of the Kings hands The power in the second Indenture is that he may revoke and limit new uses and that the Fine shall be to those new uses and no others and then if there be a Revocation and no punctuall limitation he had not pursued his Authority for he ought to revoke and limit and he cannot doe the one without the other Also he said that after such Revocation and limitation the fine shall be to such new uses and no other then if there be no new uses well limited in the third Indenture the former uses shall stand void Nota it seemeth that if a man make a Feoffement and declare uses and reserve a power to revoke them without saying moe he cannot revoke them and limit new for the use of the Fine being once declared by the Indenture no other use can be averred or declared which is not warranted thereby for he cannot declare the fine to be to new uses when it was once declared before Cook lib. 2.76 That no other use can be averred then that in the conveyauce Cooke lib. 9 10 11. Although that the first uses are determined as if a man declare the use of a Fine to be to one and his Heires upon condition that he shall pay 40. l. c. or untill he do such an Act if the first use be determined the Fine cannot be otherwise declared to be to new uses And therefore it seemes that all the uses which shall rise out of the Fine ought to spring from the first Indenture which testifieth the certain intention of the parties in the leaving thereof and then in the Case above the second Indenture and the limitation of new uses thereby are well warranted by the first Indenture and in respect that this is not a naked power only I conceive that they may be upon condition or upon a power of Revocation to determine them But the power to limit the third uses by a third indenture after revocation of the second uses in the second indenture hath not any Warrant from the first Indenture and without such Warrant there can be no Declaration of such new uses which were not declared or authorised by the first Indenture which Note for it seems to be good Law FINIS AN EXACT TABLE of the Principall Matters contained in this BOOKE A. AN Action of false impriprisonment for taking his wife in execution she appearing as a Feme sole 48 52 An Action upon the Case for conspiring to outlaw a man in a wrong County 49 Amerciament for a By-law 55 An Action upon the Case where against a Servant for breach of trust much good matter 65 66 67 68 Amerciament where well levied by the Sheriff 74 Action by an Executor against a Sheriff in the debet and deâ—â—net where good 80 81 Authority in fact and authority in Law abused a difference 90 Action for these words against I. S. spoken of the Plaintifs wife she would have out her husbands throat and did attempt to doe it 98 C. Custome for Pirates goods if payable 15 Coppy hold surrendred to the use of a younger Sonne he can have no Action before admittance 20 Churchwardens if elected by Vestry-men where good and capable to purchase Lands 21 Conspiracy see Action Collector of a fifteenth leviable upon one Township 65 Commissioners of inquiry and their power 83 84 D. DEbt against the Sheriff for an escape a good Case 20 Distresse for a By-law upon the Kings Tenant he must bring his Action in the Exchequer 55 Devise to the wife until the issue accomplish 18. years endeth not by death of the issue before 56 57 Decree where execution thereof may be stayed 68 69 E. ERror a Writ directed to an inferiour Court ought to be executed without fee paid or tendered 16 Elegit the party who sued it dieth no scire facias for the Heire 16 Equity where releviable in the Exchequer 54 Estreats where they may be discharged for insufficiency in the Indictment or not mentioning the offence 55 Estoppell in the Kings case 65 Exception in a Grant 69 Escape a difference where caused by a rescous and where by the Sherif or Bailif 70 71 Executor see Action 80 81 Erroneous judgement given in the Kings Mannor reversed in the Exchequer by Petition 98 F. A Feoffement to the use of the Husband and Wife for their lives and after to the heirs of the body of the wife begotten by the Husband what estate 17 First fruits ought
the said resolution and he said that the case concerning parcel of the land contained in S. the Deed come in question in Parliament in the 43. Eliz. and it was then commanded that the Deed should be inrolled and also he compared it to a case put in Shelleys Case that the heir shall have land as by discent from his father although that the conveyance be not inrolled in the life of the father also he said that the Queen dieth not as to her body politick to the third point he said that the confirmation need not to be inrolled for it passeth nothing and is but a bare assent and therefore differeth from the case of Patron and Ordinary and of a disseissee for the disseisee hath right to grant end the Patron and Ordinary have interest in R. but Bishops are seised in their own right and therefore their lease wants the approbation only of the Dean and Chapter and he vouched Cook lib. 3. the Dean and Chapter of Norwiches Case and the writ of Sine Assensu Capituli in the Register proveth it for the tit confirmation pl. 30. observes and Littleton in the end of his chap. of discontinuance saith that a parson may charge the Gleab by the assent of the Patron and Ordinary and the opinion of Brook in the case of the 33. of H. 8. tit confirmation pl. 30. agreeth to this opinion and so are some opinions in the 7. H 4. fo 15. 16. and he said that this point was adjudged accordingly in the first of Ma. but he had not the record thereof and therefore he would not insist upon it and he vouched 1. and 2. of Ma. Dyer fo 106. and Cook lib 6. fo 15. Hodges Case that the acceptance of the Patron is good enough to make a confirmation to the fourth point he said that the confirmation was good notwithstanding it be before the inrolment of the lease for the lease shall stay his operation until all the Ceremonies be used for the perfection of the estate and he vouched Littleton fo 122. and 6. E. 6. Dyer fo 69. where a parson made a lease to commence after his death the Patron and Ordinary in the life of the parson confirmed it and this is good and he vouched also Anne Maiowes Case Cook lib. 1. where the father confirmed the sons grant when he had but a possibilitie and yet good and he vouched Dyer 2. 3. Eliz. fo 194. where a grant was incertain and the inception was before the confirmation after makes it good and therefore he said if disseissor and disseissee bargain land although it be but a confirmation of the disseisee which may be well enough without inrolment of the Deed by a bare delivery yet this shall hinder the operation until the inrolment of the Deed which should pass the estate from the disseisor and by Cook lib. 5. Fitz. Case it appeareth that one part of the assurance shall stay his operation until another part hath his perfection and therefore he concluded that here the confirmation in judgement of Law should stay his operation until the lease be inrolled which passed the estate see the argument of Serjeant Nichols to the contrary and also the argument of Thomas Crew in Easter Term and Trin. 7. Jac. Pasch 7. Jac. in the Exchequer Catesbies Case Pasch 7. Jac. in the Exchequer TAnfield chief Baron said that in the year 31. Eliz it was adjudged in Goar and Peers Case if Tenant for life infeoffe A. and his heirs to the use of the feoffee and his heirs during the life of the feoffor that this is a forfeiture because these words during the life of the feoffor shall be but to the use limited and he put the case which Serjeant Nichols put at the Bar of the Lady Catesby which was that a man suffered a recovery to the use of William Catesby and Anne his wife and of the longer liver of them and of the Executors of William for forty years if one Elizabeth Catesby should so long live William Catesby dies and the reversion came to the King by forfeiture and he pretended that Elizabeth Catesby being dead the estate is also determined in regard that these words if Elizabeth shall so long live refer to all the estate but Curia avisari vult It was said by the chief Baron that if a man plead a deed in writing and the other partie do not pray Oyer the same Term he shall not have Oyer in another Term in the Common Pleas but in the Kings Bench Oyer shall be granted in another Term. It was found by office that Elizabeth Bowes was convicted of Recusancy in 35. Eliz. and that a lease for years was made unto her in the year 36. Eliz. in trust and that she had conveyed this lease over according to the trust and a question was demanded if the King shall have this term or not for her Recusancy and it seemed that he shall because she is not capable nor lyable of any trust and therefore the conveyance made by the Recusant was as if it had been without any compulsion by reason of the trust If a Coppiholder of the Kings Mannor pretendeth prescription for a Modus decimandi against the Parson the right of Tithes shall be tried in the Exchequer and a prohibition was granted to the Ecclesiastical Court in this Case Owen Ratliff was lessee for years of the King rendring rent and he assigned his Term to Sir Thomas Chichley in trust for payment of the debts of the said Owen Ratliff and after the Debts were paid Chichley resigned it but in the interim between the assignment and the resignment divers rents incurred to the King and the Barons agreed that these arretages in Law may be levied upon the land of Chichley notwithstanding the trust but because the Court was informed that the Executors of Ratliff had assets and continued farmer of the farm at that time they compelled him to pay it and being present in Court they imprisoned him untill payment made and allowed him his remedy by English Bill against Chichley and that by the agreement Chichley was to have paid the rents to the King The Earl of Cumberlands Case IT was found by diem clausit extremum after the death of G. Eearl of Cumberland that King E. 2. gave to the Lord Clifford inter alia the Mannor of Skipton in Craven to him and to the heirs of his body and found further the discent in a direct line until the time of H. 6. and that the first Donee and all others to whom it descended were seised prout lex postulat without determining any estate in certain in the Donee and they found that H. 6. by sufficient conveyance concessit Revertionem nec non manerium de Skipton in Craven to Thomas Lord Clifford to whom the estate given by E. 2. was descended and his heirs by force whereof the said Thomas was seised prout lex postulat and found the discent to the