did grant the lands unto the said Donee in fee in that case it was adjudged that the reversion did pass unto the Donee although the words of the reversion were not contained in the Patent although that the King in that case did think that he granted a possession but the reason of that was that although the Patent was not inrolled yet by law it should have been surrendred unto the King nevertheless because that was the collection of the King and not the suggestion of the partie that the King was seised by vertue c. therefore the collection being false shall not make the Patent void for all there that came of the suggestion of the partie is true but our case is otherwise for here the intention of the King was that he had the land in possession when he had made the grant and in truth he had but a reversion also if the Patent should be good great prejudice would or might ensue to the Queen thereby for put the case that the Queen had annexed a condition to this lease or that she had reserved a greater rent upon it this condition or increasing of the rent was the cause that the Queen had made this grant and that if the second grant should be good and the first not determined that the Grantee may claim his first estate and so defeat the Queen of her rent and of his condition to have benefit of either and this was the reason why the Patent was adjudged void in the case of Barwick Coo. lib. 5. fo 94. because some parcels were not surrendred to the Queen and therefore they were not subject to conditions or rent reserved upon the second Patent and for a second reason he argued that the acceptance of the second Patent is not a surrender in Law of the first Patent because the first Patent is meerly void as it appears in Fulmerston and Stewards case Plowden 107. that the reason why the taking of a second lease shall be a surrender of the former is because both the estates cannot be in one and the same Parson at one and the same time but this reason holds not in our case because no estate passeth by the second Patent in regard it is void and therefore this case may be resembled unto the last case in 23. Eliz. Dyer where a man taking a second benefice incompatible without dispensation doth not make the first benefice void by the Statute against Pluralities because he never was a lawful Parson of the second benefice in respect the never subscribed to the Articles according to 13. Eliz. cap. 12. and in Harries and Wings case the second Patent was void but a third reason was he thought that these words Quam quidem sursum redditionem acceptamus have not aided this Grant for the second Patent is made in consideration of a surrender made by the Patentee and therefore there ought to be a good surrender made by him or otherwise the consideration is false for the King in consideration of a surrender made doth grant lands where in facto there was no surrender as if the King grant black acre in consideration of a surrender of white acre which in facto was not done this grant is void also this appears by these words modo habens et gaudens sursum reddidit et restituit c. that the intention of the Queen was that the Lord Seymor had surrendred before and that he had no estate at this time of the making of the grant for these words modo habens et gaudens ought to be interpreted according to the rules of Grammar and for that in 9. H. 7.16 b. the Court consulted with Grammarians touching the exposition of Latine words and was by them directed and he said that this word modo had divers significations for this signifieth nuper interdum aliquando but most properly it signifieth nuper or interdum modo Paratus eâ—at Codrus erit subito qui modo Craesus erat modo ad hunc diem c. there it signifieth the present Tense or time but in the principal case if modo should signifie the present tense then it would not stand with this word sursum reddidit which is the preter tense but if here it be construed that modo signifieth the present tense this may well stand with sursum reddidit and the meaning of the Queen ought to be taken to be that the Queen was deceived and the Patent void although in the principal case here was a good surrender before the second patent yet until agreement nothing vests in the Queen and therefore if a man pleads a surrender made by the lessee to him in reversion he ought to plead an agreement to this surrender and 13. H. 4. that this is not in him before agreement and entrie and 32. E. 3. Bar 262. that until agreement nothing vests in him it was lately adjudged in the Common Pleas where an incumbent had resigned yet until the ordinary did agree unto it he remained an incumbent still and for that in asmuch as the Queen had not agreed before the second Patent made nothing vesteth in her till then and then she was deceived for she thought that she was in possession thereof at the time of the grant and therefore he concluded that he conceived the Patent was void Brock to the contrary and he divided the case into three points First whether here be an actual surrender found to be made in Law Secondly if the acceptance of the second lease be good or if the Queen reciting the estate and that he had surrendred which the Queen had accepted and that in consideration thereof she made the Grant whether this be made good although there be no actual surrender Thirdly admit that here he no actual surrender in facto whether this grant be aided by the Statute of 43. Eliz. cap. 1. but first before he would enter into his argument he said that he would wash away the Rubs cast in his way to make his way the smoother and first where it hath been said that if the Queen should take by contract or bargain without record that great mischief would insue for by that means the Queens title should be tried by the Countrie and in proof thereof he cited the Lord Latimers case in 12. H. 7.10 11. which he thought to be no authoritie for that purpose for there the opinion of the Court was delivered concerning the shewing forth of Letters Patents but not concerning matter of inrolment also the case was of an estate of inheritance to be conveyed from the King but the case now in question is but for an estate for life which may in law more easily be determined than an estate of inheritance conveyed also the case of 19. Eliz. Dyer 335. cited of the other part proves not this case for first the question was not there whether the King took any thing without inrolment but whether the Deed may be inrolled in the time of another King Secondly if
this be confessed that the King there should take nothing without inrolment yet this is not like to our case for here this is but to merge a particular estate which differs much from the case of conveying of an inheritance also this is confessed if there had been a Memorandum made in the Margent then the surrender had been good and the want thereof is the laches of the Clark and then if it should not be a surrender before the Memorandum made the Clark should make the surrender and not the partie and as to the Book of 37. H. 6. it is not answered for to say that the King hath no right to the thing granted before inrolment but that he hath the propertie that cannot be and to that which hath been objected that there doth not appear any intention of the surrender because that although the Patents are surrendred the estate remained the Book of 32. E. 3. Monstrance of faith 178. proveth nothing for there it is said that a man may plead that a Dean and Chapter did not lease modo et forma without shewing any Deed for there this pleading is not to devest any thing out of c. and also it appears in the principal case that his intent was to surrender for the Iury do finde that the Letters Patents were restored by the command of the Lord Seymor to be cancelled and to that which hath been objected if the second Patent should be good that the Queen might lose her Rent or condition because the first lease hath his continuance to that I give answer that the first lease hath not his continuance and therefore no loss can grow to the Queen and to that which hath been objected that the Queen is deceived it appears by these words modo habens c. restituit c. that the intention of the Queen was that the Lord Seymor had surrendred his estate before and that he now had nothing because that the word modo being joyned with the word reddidit signifieth the time past but as to that it seems to me that although modo poetica licentia in the strict construction of Grammer may signifie the time past yet the signification thereof shall not be so taken in the letters Patents for there it shall be taken in common construction and not to the deceipt of the King and therefore in the Dean and Chapter of Bristols case 7. E. 6. Dyer the words are nuper in Tenura I. S. et modo in Tenura A. B. there nuper is taken for the time past but modo for the present time and in 11. H. 7. Rogerum Townesend modo militem is to be intended that he is now Knight and not that he was a Knight in time past and not now also it is so to be observed here that these words habens et gaudens are annexed to this word modo both which are in the present time and restituit comes afterwards and so modo is not annexed to restituit but unto habens et gaudens also although the word shall be referred unto restituit yet all may well stand together for restituit may be referred unto the time present as siquae fuerint in 35. H. 6.11 and to that which hath been objected that until the Queen agrees unto the surrender the estate is not in the Queen he thought that where Tenant for life surrenders before agreement he in the reversion is Tenant to the Praecipe although he shall not maintain a Trespass before entrie for by 21. H. 7.12 it appeareth that an estate for life may be determined aswel by word as by surrender so in 9. H. 7. where the Tenant dies without heir the freehold is immediately in the Lord but yet he shall not have an action of Trespas before entrie now as to the first point he conceived it to be an actual surrender although there be no Vacat made nor any Memorandum and to examine it he did relate what Acts might make a surrender and to that purpose he said that words being used which do prove an assent of the Tenant that he in reversion shall have an estate that shall be a surrender without express words of a surrender for a man may surrender by these words Remisit or resignavit for the words are not material if so there be substance as in 40. E. 3. placito 14. and 40. Assises pl. 16. if a lessee for life saith to his lessor that you shall enter and I will that you shall have this land this is a good surrender So in 28. H. 8. Dyer 33. if a Termor agree that he in the reversion shall make a feofment that is a surrender so in 8. Eliz. Dyer 251 252. lessee for life is content that he in the reversion shall have the land and his interest that is a surrender but in that case it appeared that a rent was reserved and an agreement that the lessee should have it againe if he survived the lessor and therefore appearing plainly that it was not intended to pass by way of surrender it was at the last adjudged no surrender so in 14. H. 8. the Grantee of a Rent did surrender the Deed and that held to be a good surrender of the Rent it is daubted in 2. Eliz. Dyer in Sir Maurice Barkleys case 156. if the surrender of the Patent of an Office unto a master of the Chancerie out of the Court be good without beliverie of the Patent to be cancelled but that Book proveth nothing but that a delivery of a Patent to be cancelled shall be a good surrender though the Patent be not cancelled in facto it hath been objected that it matters not what commandment the Lord Seymor did give nor in what Court the Patents were given up nor before whom but to that he said in asmuch as it is found that the Patents were given up by the commandment of the Loâ—d Seymor to be cancelled that being it was by his command it was his own surrender also it appears that the letters Patents were under the great Seal of England which alwayes issueth out of the Chancery and therefore it cannot be cancelled in any other Court and it shall be intended that they were given up to be cancelled there also this word restituit signifieth to restore and a man cannot restore any thing but where he had it and he had it out of the Chancery and therefore it shall not be otherwise intended but to be there restored so in Baggots Assise 9. E. 4.7 it is pleaded Quod restituit litteras Patentes Cancellandas and sheweth not to whom nor where and it was held to be very good but it is there pleaded Quod sursum reddidit Patentes Domini Regis and shewed in special to whom they were surrendred because it may be to any that hath power at the time of the surrender but a man cannot restore unto any but such a one who granted unto him and therefore needs not shew unto whom he did restore
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
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
without deed is not aided by a good assurance a surrender without deed is aided within the Statute or else the Statute should serve for little or nothing the Statute of confirmations of letters Patents hath the same words That the Statute of 43. Eliz. hath and upon 18. Eliz. it was resolved in 27. of Eliz. in Husseys case that if Tenant in tail be and the reversion is granted to Queen Eliz. this is good and aided by the Statute so if a man grant lands to the King but the Deed is not inrolled this also is aided by the Statute and where a grant shall be good at the Common Law by a Commonperson there the like grant made by the King is made good by the Statute and there was a case in the Dutchy Chamber Trin. 37. Eliz. between Cavendish and Bateman where the Queen did grant Turbary within the Mannor of Lady Meadows within the Countie of Darby unto Bateman for 21. years Bateman thereof makes a meadow and afterwards the Queen in consideration of the surrender of the first grant doth grant the same unto him for 40. years by the name of a meadow and although he made no surrender yet by the taking of the grant it was resolved that it was a good surrender because there it was but of a particular estate but otherwise if should be of fee for a fee cannot be surrendered by implication Dodderidge Serjeant of the King argued that the Defendant is guiltie of intrusion and he divided the case into two parts only the first whether there be a sufficient consideration at the Common Law to make the second Patent void the second point admitting that there is not a sufficient consideration by the rule of the Common Law whether the defect thereof be aided by the Statute of 43. Eliz. and he argued that the surrender which the Queen intended to be the consideration of the grant was an actual surrender alreadie perfected before the grant which doth plainly appear to be so as he took it by the word sursum redditionem and he said that he could not so have that word in the Preterperfect Tense as it would be supplied by an act of the Present Tente as is pretended viz. that the surrender is to be made by the acceptance of a new grant and he vouched 35. H. 6. also he thought her to intend an actual surrender for an other reason viz. for the words nobis sursum reddidit et restituit cancellandum the which cannot be performed without an actual surrender for otherwise there is no restoring and he vouched 18. Eliz. fo 437. 43. E. 3. fo 19. where it is observed that if a wife do not remain with an Adulterer with her own accord c. another reason the Queen did intend an actual surrender because of the words ea intentione which implie a surrender to have been actually precedent another reason was for that hereby the acceptance of the second Patent there is no surrender wrought of the former estate in the Law until after the acceptance of the second letters Patents and so the Queen deceived in the time and he vouched the case of Totnes in 40. Eliz. in the Kings Bench and Savages case in 9. H. 8. Carrels Rep. fo 195. and here it appeareth there was no surrender upon record precedent unto the second grant also it ought to have been found by a special verdict that the second letters Patents were granted at the suit of Seymor or otherwise the granting of them to him makes no surrender of his former letters Patents and then it follows that they are not surrendred yet And where it hath been objected that the Queen useth these words in the second letters Patents quas quidem litteras patentes praedictus Seymor modo habens et gaudens and therefore it must be intended she takes notice that the first letters Patents were not yet surrendred for then she would not say modo habens et gaudens he answered that this word modo signifieth the time passed or the time presently for to pass and the word habens cannot be taken in a legal sense no otherwise then the word being is taken in Dockwrais case 27. H. 8. fo 19. and so these words modo habens et gaudens signifie no more but that one he had an estate also the Queen is deceived in this word acceptamus for she cannot in the Law be said to accept of that which by the Law is not vested in her also he said that an actual surrender ought to be an actual giving up of so much as the Patentees received of her grant as it appears 14. H. 8.21 E. 3. Brook Prerogative 90.7 E. 6. Dyer Sir Maurice Barklies case 2. Eliz. 159. Sir Ralph Sadlers case that a duplicat is not sufficient if the letters Patents be surrendred and cancelled 3. Eliz. Dyer 195. and he said that the surrender which the Queen intended ought to pass an estate from the partie surrendring which is not so done here and where it hath been objected that the very delivery in the Court made of the letters Patents is a surrender of them by the opinion of Davers in 37. H. 6. fo 10. he said that this book was no Law as it may appear 12. H. 7. fo 12. Carrels Reports although in that book also Vavasour agreeth with Davers and where it hath been objected that here is an actual surrender made yet the intention of the Queen ought to be observed to make it an effectual surrender or otherwise though she hath no loss by the surrender that is made yet is it no effectual surrender as appears by 18. Eliz. Dyer 352. and so also was the case of the Isle of Man also Sir Henry Seymor did not in this case all that he might have done for the perfecting of this surrender for he ought to have seen this his surrender recorded as it appears by the book case of the 11. H. 4. where it appeareth that if I be bound to levie a fine I ought to sue forth a writ of covenant or dedimus potestatem and do all such other acts as it may make it a good and perfect fine in Law Secondly he took it that the Statute of 43. Eliz. did no whit aid this case for that makes no surrender to the Queen to be a good surrender but only an actual surrender which here is wanting and the Statute in no sort extendeth to a surrender in the Law for the surrender which this Statute intendeth to aid ought to be a surrender conveying and assuring c. and this surrender in the law conveyeth nothing but only extinguisheth and for that purpose he put this case if A. take a new lease of the Queen in 27. by indenture and this is of his own land this Statute of 43. Eliz. doth not make such a kind of conveyance in the Law by Estoppel good to vest the land in the Queen by this Estoppel which is a conveyance in the Law unto
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
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
and there bought Currants and imported them into England and he recited the Statute of the first of King James cap. 33. which grants 2. s. 6. d. for Poundage and he said that he had paid that and therefore he had refused to pay the 5. s. because it was imposed unjustly and unduly against the Lawes of the land whereupon the Kings Attorney demurred in Law this matter had been divers times argued at the Bar and at the Bench by Snig and Savil Barons and now by Clark and Flemming chief Baton whose arguments I only heard and Clark who argued first this day said that this Case being of so great consequence great respect and consideration is to be had and it seemeth to me strange that any subjects would contend with the King in this high point of Prerogative but such is the Kings grace that he had shewed his intent to be that this matter shall be disputed and adjudged by us according to the antient Law and custome of the Realm and because that the judgement of this matter cannot be well directed by any learning delivered in our Books of Law the best directions herein are presedents of antiquitie and the course of this Court wherein all actions of this nature are to be judged and the Acts of Parliament recited in arguments of this Case prove nothing to this purpose the best case in Law is the Case of Mines in Mr. Plowden Com. where this ground is put that the precedents of every Court ought to be a direction to that Court to judge of matters which are aptly determinable therein as in the Kings Bench for matters of the Crown in the Common Pleas for matters of inheritance and Civil contracts and in the Exchequer for matters of the Kings Prerogative his revenues and government and as it is not a Kingdome without subjects and government so he is not a King without revenues for without them he cannot preserve his dominions in peace he cannot maintain war nor reward his servants according to the state and honor of a King and the revenue of the Crown is the very essential part of the Crown and he who rendeth that from the King pulleth also his Crown from his head for it cannot be separated from the Crown and such great Prerogatives of the Crown without which it cannot be ought not to be disputed and in these cases of Prerogative the judgement shall not be according to the rules of the Common Law but according to the Presidents of this Court wherein these matters are disputable and determinable as for Example an action of accompt lies not by the Common Law against him who had the land of the accomptant by mean conveyance but if one be an accomptant to the King and had land in fee and alien it unto A. who alien it unto B. B. by reason of this land shall be charged with this accompt in 14. E. 3. a Coroner was elected by the Kings writ as he ought to be by the Countie and after be was amerced and because he was not sufficient to answer the Amercement the Countie was charged therewith and that appears of Record here and in 30. E. 3. Rot. 6. as appears also of Record in this Court one William Porter was Magister monetae and had received Bullien of divers Merchants and Coyned it in the Kings Mint and did not restore the Coyne to the Merchants but was insufficient and the King paid the Merchants and inquired of the suerties for the Coyne and it was found that he had none then it was inquired who recommended him unto the King and it was found by whom he was recommended and they who only recommended him as friends were charged with the Debt and if one be outlawed in a personal action and Debt is due to him upon a contract this shall be forfeited to the King and this is ordinary by the Presidents of this Court and yet this seems to be contrary to Law and is against our Books and the Kings Debtor shall have a quo minus against Executors upon a simple contract and therein he cannot release nor be non-suited and I put these cases to prove that the presidents of this Court ought to be pursued and observed although they seem to cross the Common Law and the Books thereof a case was here betwixt the King and Jourden Jourden was receiver and sold his office to one D. and he not being able to pay Jourden for his office at the day limited it was agreed that Jourden should come to the next receipt and when D. received the Kings money that Jourden should take it for his office which was done accordingly after D. was indebted to the King and this matter appearing as above c. Jourden was charged with the money which he had received and as Stamford in his first cap. of Prerogative saith that the King is the most worthy part of a Common-wealth so is he the preserver nourisher and defender of the people and true it is that the weal of the King is the publick weal of the people and he for his pleasure may a forrest the word of any subject and he thereby shall be subject to the Law of the Forrest and be may take the provision of any man by his Purvieour for his own use but at reasonable prizes and without abuse the abuse of which officer hath been restrained by divers Statutes and the King may take wines for his provision and also Timber for his Ships Castles or houses in the wood of any man and this is for publick benefit and the King may allay or inhaunce Coyne at his pleasure for the plentie of the King is the peoples peace and these imposts are not only for the benefit of the people and for the Kings profit but are also imposed many times for the increase of Merchandise and Commerce as the Statute of Aulnageors made in the 2. E. 3. cap. 14. which was made principally to make cloathes more Vendible and so Corporations are granted by the King with immunities and priviledges and to seclude other subjects from them are well limited and good for it is for the increase of the peoples wealth and thereby the Kings revenue is increased and sometimes there is contained in grants a Prohibition to other subjects that they usury not upon the priviledges of such Corporations upon a pain as in the custome of Forraign bought and Forraign sold in London and York and divers customes are permitted to such Corporations as in the Chamberlain of Londons Case Cook 5. and the breach or violation of these customes is a decay of the Corporations and so an impairing of the revenues of the Crown and therefore the King may make them and also give them priviledges and make inhibitions to others not to Vsurp upon them King Edward the third in the sixteenth year of his Raign proclaimed that no man should sell Wool-fels or Leather under such a price so that these staple commodities might not be
the world if he will or inflict a pain upon any who shall Trade into such place inhibited so may he do upon any commoditie either inhibit it generally or upon a pain or Impost and if a subject use the Trade after such inhibition or import his wars and pay not the impost it is a contempt and the King shall punish him for it at his pleasure and as to that which is said that it is a burthen to the Merchant that is not so for the burthen layeth it only upon the better part of the subjects and if it were a burthen it is no more then they themselves imposed which was in their hands by commission in the time of Queen Eliz. and they have raised the prices to subjects more then the value of the Impost and it is not to be intended that the King by any Impost will prejudice the cause of Merchants for the Trade in general is to him more beneficial then any particular Impost the case of the 11. and 14. H. 4. of Aulnageor is not to be compared to this Case for there the King had made a grant to a subject and it was also of a thing which was granted before to a Maior and also of a commoditie within the land and not transported and for the case of Darcy for the monopoly of Cards it is not like for that is of a commoditie within the land and betwixt the Patentee and the King and not between the King and the subject and as to the exception taken to the Information that it is Vsitar and doth not prescribe this needeth not for it is a prerogative wherein lieth no prescription for every prerogative is as antient as the Crown and as to the conclusion of the Information it was objected that it is not good for the informer ought to pray the forfeiture but this belongs to the Court to Iudge of what shall be lost or forfeited the offence being a contempt and therefore the conclusion good enough and so for all these reasons judgement shall be given for the King Flemming chief Baron touching the exceptions to the Information they are of no force for the first Vsitat c. it hath been well said that the King needs not prescribe in any prerogative for it is as antient as his Crown is 2. E. 3. and for the conclusion viz. that he in contempt c. that deserves no other answer but that which hath been given before for it is enough without doubt warranted by infinite presidents but for the Bar it is an increase of the Defendants contempt and no sufficient matter to answer an indigested and confused tale with an improper and disobedient conclusion and there is in it multa non multum but the conclusion is without president or example for he saith that the imposition which the King had laid is indebite injuste et contra leges Angliae imposita and therefore he refused c. in the case of Smith for Allom the conclusion was moderate and beseeming a subject judgement if he shall have Impost by his grant and in the case of Mines the Defendant being a great Peer of the Realm concluded upon his grant and interest in the soyl and that he took the Mettal as it was lawful for him and did not confront his Soveraign with terms of injuste indebitè and the like and the King as it is commonly said in out Books cannot do wrong and it the King seise my land without cause I ought to sue to him in humble manner Humillimè supplicavit c. and not with such terms of opposition in the Information and all his matter had been saved to him then as well as now or he might have pleaded his matter and said wherefore he refused as it was lawful for him but for the matter it is of great consequence and hath two powerful objects which it principally respecteth the one is the King his power and prerogative his Treasure and the Revenues of his Crown and to impair and derogate from any of these was a part most undutiful in any subject the other is the Trade and Traffick of Merchantdise transportation in and out of the land of commodities which further publick benefit ought much to be respected and nourished as much as may be the state of the question is touching a new custome Impositions or customs are duties or summs of money newly imposed by the King without Parliament upon Merchantdise for the augmentation of his revenues all the questions arising in the case are aut de personis de rebus vel de actionibus viz. form and proceeding the persons are first the King his power and authoritie Secondly not Bates the Defendant nor the Venetians but all men who import Currants the imposition is properly upon Currants and for them and is not upon the Defendant nor his goods who is a Merchant for upon him no imposition shall be but by Parliament The things are Currants a forraign commoditie and a Victual the 5. s. for impost which is said to be great the action formed or Process is the command by the great Seal and the word therein are Petere et recipere if they be sufficient and if good without Proclamation or other notice and how notice shall be given and if it be good without an ad quod damnum and the case of Mines in Plowden which is the sole case in the printed Books of Law to this purpose hath in it foure reasons of the judgement First the excellency of the King or his person Secondly the necessitie of Coyn for his state Thirdly the utillitie of Coyn for commerce Fourthly the inconvenience if the subject should have such royal possessions and these reasons are not extracted out of the Books of Law but are only reasons of policy for Rex est legalis et politicus and reasons pollitick are sufficient to guide Iudges in their arguments and such cases and presidents are good directions in cases of judgement for they are Demonstrations of the course of antiquitie where upon my judgement shall consist upon reasons politick and presidents the case in Dyer 1. Eliz. fo 165. was not like to the case in question but only a conference and the case there was for an impost upon cloath a domestick commoditie in this case are recited their Grievances but it was paid and it is denied here but there was no resolution thereof at the same time was the impost of Wines increased and paid and no petition or complaint thereof and the custome of Englands commodities were at the first imposed by the Kings will for no Statute giveth them viz. for Wool Woolfels and Leather and it was called the great custome and that it was paid it will not be denied and yet now it is doubted if the King can impose it upon forraign commodities the King may restrain the person as it is in Fitz. Nat. Br. à fortiori he may restrain the goods there was no custom for home Commodities
it seems to me it is apparant by the Statute of the 26. H. 8. Cap. 10. which gives power to the King by his letters Patents to limit the time for importing of Wines against the Statute of 23. H. 8. Cap. 7. which was no more but a restoring of his power abridged before and so was the Statute of 31. E. 3. for otherwise the Parliament would never have given him Authoritie to contradict an Act of Parliament by his letters Patents or to revive these Acts Impositions are meerly a new custome and so are they stiled in the Margent of the Roll of the 3. E. 1. in this Court where it is Recorded that the King had assigned Merchants to receive using the same words which are used here half a Mark for every Sack of Wool and a Mark of every Last of Leather and that if the Merchant who is so appointed Transport any after that it shall be forfeited and out of this record I observe that three hundred Pelts make a Sack of Wooll from the 21. Ed. 1. unto the 28. E. 1. the customs for Wools was 40. s. a Sack and in 25. E. 1. the Imposition of Maletolt was repealed by Act of Parliament which Maletolt was an increase of Impost upon staple commodities and therfore was given to the King a great subsidie with this cause that it should never be drawn into president which shews that this Maletolt was rightly imposed otherwise the Parliament would never have given him so great a Recompence for the Abrogation of it but after in the 13. of E. 3. because it was a thing of so great consequence to the Crown it was revived and made 40. s. for Wool and Woolfels and 3. l. for Leather for denizens and double for strangers in the 14. Ed. 3. a Petition in Parliament to abate it and for a great subsidie it was released and in the 18. of Ed. 3. it was again revived and a new petition was made in Parliament and this petition was continued until the 36. of Ed. 3. and then it was abated and also by the 45. E. 3. it was again abated so that it seem that between these times it was revived but after it did not continue long for in 48. E. 3. it was again revived and for Wool the Impost was 50. s. et sic de singulis and in 1. R. 2. after it was answered to the King as it appears in the accompts here and in 5. R. 2. it was again suppressed by Parliament for a subsidie granted to the King with a saving of antient rights all these Statutes prove expresly that the King had power to increase the Impost and that upon commodities of the land and that he continually used this power notwithstanding all Acts of Parliament against it and so much for commodities of this land but for forrain commodities it appears by no Act of Parliament or other president that never any petition or suit was made to abate the Impost of forrain commodities but of them the Impost was paid without denial as for example for Wines in the 16. E. 1. as appears in this Court upon Record it was commanded to the Bailiff of Dover to levie and Gollece of every Tun of Wine of a stranger 4. s. and in the 22. E. 1.2 s. thereof was released at the suit of the French Ambassador in the 26. of E. 3. the King granted priviledges to Merchants strangers but there was given for it an increase of custome and this was answered as it appears upon accompt in the times of E. 1. and E. 2. the case of Allom was as it hath been recited by my brother Clark it is objected that the Merchant ought to have free passage upon the Sea but that both not conclude the King but that he shall have his Impost if he cometh into his Ports and here the question is for Merchandise after that they are brought into the Port but it is said that they cannot come into the Port but by the Sea that is true but if this reason should hold then the King could not grant Murage Pontage and the like because the common Channel to them is free and Average is for securitie aswel as Ports another objection that the Defendant here is not restrained but that is answered for if a pain be inflicted upon them who import this is an inhibition upon a pain to all another objection was that there was no consideration of the Imposition and if it be demanded what differences between the cases I answer as much as is between the King and a subject and it is not reasonable that the King should express the cause and consideration of his Actions for they are arcana Regis and no satisfaction needeth for if the profits to the Merchant faileth he will not trade and it is for the benefit of every subject that the Kings Treasure should be increased an objection was made against the form of proceeding because it was by the great Seal to the Treasurer and that he by the customers Peteret et reciperet and this could not be better as it was answered before it was objected that it should be by Proclamation and that needs not for it toucheth not all the subjects but only those who are Traders in Merchandising the best and aptest means to give them notice by the customers and it is alledged by the information expresly that he had notice It was lastly objected that there ought to be a quod damnum in the case before the grant that is not so for that shall be only when the King granteth any thing which appertaineth to his prerogative and not when he maketh Charters to his servants to levy his duties due to his Crown wherefore I think that the King ought to have judgement which was after given accordingly 6. Jac. in the Exchequer An Information against Sir Edward Dimock THe Bishop of Carlisle called John May in A. 26. Eliz. made a lease in reversion to Queen Eliz. of the Mannor of Horncastle whereof the Bishop was seised in right of his Bishoprick and this was for 4. years and it was acknowledged before Commissioners appointed for this purpose and the Bishop prayed it to be inrolled and this prayer is indorsed but not inrolled and in 37. Eliz. this lease was confirmed by the Dean and Chapter in the life of the lessor and in 44. Eliz. the successor Bishop leased this land to Sir Edward Dimock the Statute of the 43. of Eliz. hath a proviso that it shall not extend to any lease before made by the Bishop of Carlisle to Queen Eliz. then not inrolled and after the death of the Queen viz. 5. Jac. this lease in 26. Eliz. is returned and certified to be acknowledged and is then also inrolled and Sir Edward Dimock had entred and was in possession by vertue of his lease in the 3. Jac. and the information was for entrie and intrusion in 3. Jac. and upon the Bar all this matter was discovered and a
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
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
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
argued where Walter of the inner Temple moved that the office was insufficient and he cited one Baylies case to be resolved here where an office found that A. died seised de quodam tenemento that office was not good because of the incertaintie for it may be a rent or a house but otherwise it would be if it were upon a special verdict after issue joyned as he said it was there agreed also he said that it was there agreed if an office findes that A. was seised of B. acre in see and died it is not good because it is not found that he died seised yet in pleading it is good because when the fee simple is shewed to be in a man it shall be intended to continue in him until the contrary appears also in Pasch 43. Eliz. Morton and Brigs Case an office found A. to be seised of certain lands in D. holden in capite c. it is not good without shewing the certaintie c. so if the office had found that he was seised of 100. acres in D. and that certain of them were holden c. this is not good without shewing which c. as it was there also agreed in 26. H. 8. the condition of an Obligation was that the Obligor should make a sufficient estate of B. acre in debt upon this obligation it is no good plea to say that he had made a sufficient conveyance c. without shewing in certain what it was Mich. 32. c 33. Eliz. between Ireland and Gold a man pleaded for title that A. was seised and by deed inrolled gave and granted such land c. this is no good pleading because no sufficient certainty therein also it is not good because there is no certain time shewed of the grant made and although that a grant by record is good as it is in 37. H. 6. yet in pleading he ought to shew the time of the making of it 20. H. 7. also it is specially required to have the time of the making of the grant to be found here because there were divers Acts of Resumption made to nullifie grants by H. 6. in some of the years of his raign and it may be that this grant was made within those times contained in the Acts of resumption and therefore c. Hutton Serjeant argued that the office finding quod concessit generally is good and sufficient without these words by sufficient conveyance and the Traverse may be generally non concessit modo et forma and by 40. Assise pla 24. it is sufficient to say that A. was seised in fee and committed a forfeiture 5. Ed. 4.10 accordingly also he said that it appears by 14. 15. H. 7. if an office findes that A. was seised in tail it is a good office but in pleading not good without shewing how also in Knights Case Cook lib. 5.56 it appears that an office is good enough to intitle the King if it have substance although the manner be not formal 3. H. 6. an office finding that A. died seised and findeth not of what estate and yet it is good to intitle the King Bacon Solicitor general contra and he said that they are in veigled by reason of this office for the partie grieved knoweth not where or how to Travers because it is not found by what conveyance H. 6. granted the reversion for if it be by letters Patents a man cannot plead to them nul tiel Record also a verdict upon an office is principally to inform the partie who may Traverse and not like a verdict upon issue joyned whereunto the partie hath no answer but is only to inform the Iudges who ought to Iudge Hobert Attorney generall contra yet he agreed that if a patent be pleaded a man cannot say against it nul tiel Record but he said that Lucies Case 14. H. 7. is a stronger case then ours where an office is holden good finding a man to be seised in tail and upon that book he relied much to prove the office to be good Bacon Solicitor said here is an incertaintie in the conveyance and also in the estate which is not in the 14th of H. 7. for there is an express finding of an estate and a dying seised thereof but here the finding is that he was seised prout lex postulat Harris Serjeant that the office is good and he vouched also Knights Case Cook lib. 5. vouched by Hutton and also the case of Alton-woods Cook lib. 1. that an office there was holden good although more uncertain then this office and here the office is only that H. 6. granted and shewed how and therefore c. Walter said that it appears by the argument of Keeble in the case 14. H. 7.26 where he argued that where the right of the estate is to be inquired there it ought to be certain in all circumstance but otherwise it is if the inquiry be only upon the possession for there if a sufficient possession be found it is good enough And Brian chief Iustice said the office was void in that case fo 27. and the Iudges in this case would be advised until the next Term and the next Term it was recited again by Nichols Serjeant for the Earl of Cumberland and by Bacon Solicitor for the the Countess of Dorset at which day the Iudges said that the question in the case is only this viz. if an office findes only that A. was seised of a particular estate and that the King granted the reversion c. without shewing how or other particular certainties and to that if such an office be good or not they said that it is not easie to determin for although it be good in the case of a common person yet it will be greatly mischievous to the King if by such offices his inheritance should be devested in respect no Traverse can be to such an office but yet they would not award the office to be void but advised the Attorney of the wards to grant a special premunire to the heir general who was the Countess of Dorset Salvo jure cujuslibet c. and so in an Action at the Common Law the Earl might trie his right and title and not upon the validitie of an office and so it was done The King against the Earl of Nottingham and others BEtween the King by English Bill and the Earl of Nottingham and others Defendants but concerned Sit Robert Dudley in interest and was as followeth viz. Sir Robert Dudley intending to travel beyond the Seas did by indenture inrolled the 10th of June for a valuable consideration expressed but none paid convey the Mannor of Killingworth amongst other lands to the Earl of Nottingham c. in see but the Barganees were not privy unto the Deed not till afterwards and in the Deed there was a proviso that upon the tender of an Angel of Gold all should be void and convenants on the part of the Barganees that they should make all such estates as
Woods case in Cook lib. 4. Tanfield chief Baron it is true that the issue should be better if it were general not guiltie of the Trespass aforesaid but yet it is good enough in this case for the special words comprehend as much as the words not guiltie of the practice and agreement aforesaid c. and the word Practizatione comprehends aswel the subsequent Acts of execution as the precedent combination and therefore Tantamounts a general issue and it was good by the Court and as to the action Altham Baron conceived that it lieth although it be for a lawful cause for the Law abhoreth fraud and conspiracy as if two conspire to vex me for my land by suit an action lieth F. N. B. yet it is lawful for every man to sue me without title and he vouched 16. Assise and here it is laid that the Defendants indeavoured to make the Plantiff forfeit his goods which are worth 5000. l. and this is reasonable that it should lie and 9. E. 2. Fitz. discents 52. is our case directly upon the matter and therefore it seemeth to me that it lies Tanfield chief Baron said that 9. E. 2. crosseth this case in part and yet he thought that the action lies to which Snig agreed and it seemed the cases of appeal put by Godfrey did lie well enough without aid of the Statute of W. 2. if there be such a conspiracy Tanfield chief Baron accordingly if it be legally thought without cause yet if without conspiracy the action lieth not for it as it appears in Owen Woods case Cook lib. 4. and in all cases where strangers have nothing to do with the suit brought for the conspiracy and yet combine with the Plantiff in the suit an action upon the case lieth for this vexation and judgement was entred for the Plantiff by the Court. An inquisition for the King was returned here and it was found that Fleet-wood the Kings debtor for his office of receiver for the Court of Wards did purchase a certain Term and interest of and in the rectory of Yeading for divers years then to come and that being so possessed he became indebted to the King and that this term is now in the hands of the Lady Edmonds and by colour of this inquisition the land is extended for the Kings debt Harris Serjeant moved that this inquisition is insufficient to extend the land but good to sell a term and he vouched Palmers case Cook lib. 4. to which the Court inclined but it was adjourned If a Bishop becomes indebted to the King for a subsidie and dieth his successors shall not be charged upon the lands of the Bishoprick but the executors of the predecessor or his heir and if they have nothing the King shall lose it as chief Baron Tanfield said which the Court granted upon the motion of Bridgman for the Bishop of Saint Davids Trallops case A Scire facias issued against Trallop the father and Trallop the son to shew cause wherefore they did not pay to the King 1000. l. for the mean profits of certain lands holden by them from his Majesty for which land judgement was given for him in this Court and the mean rates was found by inquisition which returned that the said mean profits came to 1000. l. upon which inquisition this scire facias issued whereupon the Sheriff returned Trallop the father dead and Trallop the son now appeared and pleaded that he took profits but as a servant to his father and by his commandment and rendred an accompt to his father for the said profits and also the judgement for the said land was given against his father and him for default of sufficient pleading and not for the truth of the fact and he shewed the Statute of the 33 H. 8. cap. 39. which as he pretended aided him for his equitie whereupon the King demurred Hitchcock for Trallop seemed that the Statute did aid him by equity and he moved two things the one that if here be such a debt that the Statutes intends to aid it the other if the Defendant hath shewed sufficient matter of equitie within the intent of the Act and he thought that it is such a debt as the Statute will aid for although that here be au uncertainty of the time of the judgement given for the King that being reduced to a certainty by the inquisition after it shall be within the intent of the Statute for id certum est quod certum reddi potest and the words of the Statute are if any judgement be given for any debt or duty c. and here although that there was no certainty unto how much these mean rates extended at the time of the judgement given yet it is clear that it was a duty at the time of the judgement and then it is within the Statute also he said that the words in the proviso of that Statute explain that the intent of the makers of the Act was so for the words are for any thing for which the partie is chargable and the mean rates are a thing for which he is chargable see Cook lib. 7. fo 20. and the Lord Andersons case there fo 22. as to the point of equitie there seem to be two causes First he shewed that he was but a servant to his father and had given an accompt to him Secondly the judgement was given against him upon a point of mispleading Tanfield chief Baron said that the matter in equitie ought to be sufficiently proved and here is nothing but the allegation of the partie and the demurrer of Mr. Attorney for the King and if this be in Law an admittance of the allegation and so a sufficient proof within the Statute it is to be advised upon and for that point the case is but this a scire facias issueth out of this Court to have Execution of a recognizance which within this Act ought by pretence and allegation of the Defendant to be discharged for matter in equitie and the Defendant pleads his matter of equitie and the King supposing this not to be equity within this Statute demurreth in Law whether that demurrer be a sufficient proofe of the allegation within the Statute or not and it was adjourned Trin. 7. Jac. in the Exchequer Doillie and Joiliffs case again Trin. 7. Jac. in the Exchequer CRessey for the Plantiff said that the Plea in Bar is not good because the Defendant justified by force of a Capias ad satisfaciendum and pleads no return thereof and moved that it is not justifiable without returning of the writ but the Court seemed the plea to be good notwithstanding that but if it were a mean process then it ought to be pleaded to be returned see Cook lib. 5. Hoes case fol. 19. according to this diversitie Tanfield chief Baron thought that the Plantiff shall recover for first the writ of error here is not a writ but a commission and therefore false lattin shall not abate it as it hath been
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
of the 28. Eliz. according to this opinion there was a judgement now lately in the Common Pleas as the chief Baron Tanfield said but if a Recusant be not convicted of Recusancy an informer may have advantage against him according to the Statute of the 23. Eliz. notwithstanding any thing in the Statute of the 28. Eliz. Jacksons Case UPon a motion made by Sir John Jackson in a suit by English Bill between Jackson and another Tanfield said that it had been decreed in the Chancery betwixt one Gore and Wiglesworth that if A. agree with me to lease black-Acre for certain years to me and after before he makes my lease according to his promise he infeoffes B. of that Acre for a valuable consideration and B. had notice of this promise before the feofment made unto him now B. should be compelled in the Chancey to make this lease to me according to the promise and by reason of his notice and so the Court agreed upon a motion made in the like case by the said Jackson for as before the Statute of 27. H. 8. a feoffee upon valuable consideration should be compellable in the Chancery to Execute an use whereof he had notice so here Sir Edward Dimocks Case argued before BRomley the puisne Baron thought judgement should be given for Sir Edward Dimock against the King for the matter in Law he argued but three points First that the lease made to Queen Elizabeth in the year 26. is not good clearly without a matter of Record for although that he agreed that personal Chattels may be conveyed to the Queen without matter of Record yet Chattels real can not for they participate in divers qualities with inheritances and freeholds and therefore if a man possest of a Term for years demiseth it to A. for life the remainder over to B. that this is a good remainder adjudged now lately in the Common Pleas but otherwise it is of Chattels personal as it appears by 37. H. 6. the case of the devise of a Grail Secondly the acknowledgement of the lease before Commissioners and the prayer of the Bishop to have it inrolled makes it not a record before inrolment for it appears by the 21. H. 7. that if the Sheriff by vertue of a writ doth any thing yet it is no matter of Record until it be returned and so is the 9th of Ed. 4. fo 96. that if the Phillizer of a County enter Process of outlawry in the room of a Phillizer of another County this is not a Record in judgement of Law although that it be a thing recorded and so he conceived that it was no sufficient Record in regard the Commissioners have not certified this recognizance and the prayer of the Bishop Lessor in the life of the Lessee and Lessor whereby as he said he admitted that if this were certified by the Commissioners in the life of the Lessor and Lessee that then without inrolment this had been a sufficient record to intitle the Queen who was Lessee Thirdly he argued that the inrolment subsequent in this case in time of the King that now is maketh not the lease good which was made to the Queen for he thought that the interruptions hindred the operation of this lease by interruptions he meant the death of the Bishop Lessor and of the Queen Lessee as it seemeth and the lease in possession of Sir Edward Dimock by force thereof without inrolment and therefore he said it was adjudged if a man covenant to stand seised to the use of his wife which shall be and there he makes a lease of the land and then takes a wife this lease by him is such an interruption that the use shall not arise to the wife but in Wintors case in Banco Regis 4. Jac. and also in Russels case although it seemed to be there agreed that the lease for years should be good yet it was not resolved but that the wife may have freehold well enough by vertue of that Covenant and he also vouched and agreed to Bret and Rigdens case in Plowden Com. where the death of the devisce before that the devisor died did frustrate the operation of the will and so of the death of the Queen being Lessee also he vouched the Duke of Somersets case 19. Eliz. Dyer 355. First as to the exceptions taken to the Bar by the Attorney general which were two it seemed to him that notwithstanding them the Bar is good for whereas it was objected that the Bar is that the Commission and acknowledgement of the lease were not returned by Hamond and Porter who were the two Commissioners who returned it to that he answered that the information mentions the acknowledgement and the return before them two and therefore there needeth no answer to more then is within the information also it cannot be intended to be returned by the other two Commissioners in regard that they were only to the connizance Secondly as to the other exception viz. that where the information saith that May Bishop of Carlisle by his certain writing of demise had demised c. for the Bar is that the said Bishop made a certain writing purporting a demise c. that this shall not be intended the same writing mentioned in the information and 6. E. b. Dyer 70. Ishams case for Ilebrewers Park vouched in maintenance of this exception and he said that it cannot be intended but that the Bar intends the same demise mentioned in the information for here the lease mentioned in the information and the lease mentined in the Bar agree in eight several circumstances as it was observed by the Councel of Sir Edward Dimock see the argument of Bandrip and 1. H. 6. fo 6. where a scire facias was brought against I. S. the Sheriff returned that according as the writ required he had made known to I. S. and doth not say the within named I. S. Altham Baron accordingly as to the matters in Law there are five points to be considered in the case First he said that the making of the lease to the Queen without acknowledgement is not good nor matter sufficient to intitle the Queen and he vouched 5. E. 4. fo 7. and 7. E. 4. fo 16.4 H. 7. fo 16.21 H. 7. fo 18.1 H. 7.17 and 3. H. 7.3 the same Law when awardship is granted and so an use cannot be granted to the King without matter of Record 6. E. 6. Dyer 74. that the Kings Lessee for years cannot surrender without matter of Record Secondly it seemeth that the confirmation of the Dean and Chapter is good notwithstanding it wanteth inrolment and notwithstanding the confirmation made before the inrolment and so before the being of the lease for here is only an assentor the Dean and Chapter for the Bishop hath his land in right of his Bishoprick and an assent may be aswel before the lease as after insomuch no interest passâ—th so also may an attornement be good before a grant of the reversion
Slade and Morleys case a case was put which proves it to be according Snig Baron agreed that Iudgement ought to be given for the Plantiff and by Tanfield if I take your goods and detain them until I have caused you to pay me 10. l. a general Action of Trespass lieth and not an Action upon the case and it is cited 7. H. 4. or 7. E. 4. to be accordingly but yet he agreed that judgement should be entred and so it was appointed to be done but then Chibborn for the Defendant said that here is a mistrial for if this trust be not material because it is not effectually shewed in the Declaration as you have argued then the Venue shall come only from the parish where the Wares were laid upon the land and not from the parish also where the appointment or trust was made by the Plantiff and therefore the trial also being from both parishes is a mistrial and the Court agreed that this is a mistrial upon that reason for now the appointment or Trust is but an inducement and therefore needs not to be shewed within what parish it was made and therefore a new Venire facias was granted and upon that a new trial and damages more then before and judgement was given accordingly Arden against Darcie NOta a good case of Attornament which was decreed in the time of Baron Manwood betwixt Arden and Darcie and it was this one Arden was seised in fee of divers lands in the County of c. and made a lease for years and after made a feofment with words of Grant of those lands to A. and B. to the use of the feoffor and his wife for their lives the remainder to Arden his son in tail and after the feoffor said to the Lessee that he had conveyed his land which the Lessee held in lease to the uses aforesaid and the Lessee said I like it well and after he paid his rent to the feoffor generally and it was decreed in the Exchequer Chamber that this is no Attornament because the Attornament ought to be to the feoffees and it appeareth not that the Lessee had notice of the names of the feoffees and therefore it cannot be said to amount to an Attornament but notwithstanding that Decree Arden the same to whom the remainder was limited had his Action depending in the Kings Bench to trie the point again as he said to me also this Term a point concerning the said Decree was in question upon another Bill exhibited in the Exchequer Chamber by Sir Edward Darcie against Arden and the case was as followeth Sir Edward Darcie exhibited his Bill here in the nature of a scire facias against Arden to shew cause wherefore the said Edward Darcie should not have execution of a Decree made in the time of Baron Manwood and the Defendant shewed that Darcie in his first suit supposed by his Bill that he had a grant of the land then and now in question from Queen Elizabeth rendring rent as it appears by the letters Patents and in facto there was no rent reserved upon the Patent and that the Defendant gave answer to the said Bill and admitted the Iurisdiction of the Court and after a Decree was made against the Defendant and the Defendant now having shewed this special matter demurred upon this Bill in respect that by his pretence the Court had not jurisdiction to hold plea in the first suit and here it was shewed that the first decree was made upon a matter in Law not properly examinable by English Bill and that in facto the Law was therein mistaken and therefore the Defendant prayed that the decree may be re-examined Tanfield chief Baron it is usual in the office of Pleas that if an action be brought as a debtor of our Lord the King this is good although that de facto no suggestion be made thereof if it be not shewed on the other side and therefore a writ of Error for this falsity shall not cause the judgement to be reversed as it was resolved in a case in which I was of Councel and so here as it seemeth Altham Baron here we are in equity wherein we are not tied to so strickt a course as if it were in the office of pleas Brock of the Inner Temple for the Defendant in a Court of equity it is in the discretion of the Court to deny Execution of a decree if good cause be shewed and in 18. E. 4. fo 1. judgement was given against a married wife by the name of a feme sole and reversed although she did not shew in the first suit that she was married and in 8. E. 4. judgement was given in the Kings Bench in a suit and by writ of error was reversed although the Defendant had admitted the Iurisdiction of the Court and the chief Baron and all the Court inclined that Arden may exhibit a Bill to reverse this Decree made against him and may shew what point in Law the Iudges mistook in the Decree or otherwise we should not do as Law and Iustice requireth for it is not expedient to be examined by way of Bar to this Bill in the nature of a scire facias and after Arden according to the Decree of the Court and their direction did exhibit his Bill in the nature of a writ of error Comprising how the first decree was erroneously made and prayed that the said decree might be reversed and in his Bill he shewed the point in Law which was decreed and that upon divers long conveyances appears to be thus and so it was agreed by Councel on both parties that Arden the father was seised of the Mannor of Cudworth in the County of c. and was also seised of the Mannor of Parkhal in the same County and of Blackclose c. which was parcel of the Mannor of Cudworth but lying neer unto Parkhal and alwayes used and occupied with it and reputed parcel thereof but in truth it was parcel of Cudworth and that Arden the father made a Conveyance of the Mannor of Parkhal and of all the lands thereunto belonging and reputed as parcel thereof or occupied with it as part or parcel thereof and of all other his lands in England except the Mannor of Cudworth to the use of Arden his son that now is Plantiffe here and if Blackclose will pass to the son by this conveyance or if by intendment it shall be excepted by the exception made it was the question here and was decreed in the time of Baron Manwood that it is excepted by the exception but all the Barons now thought it to be a strong case that Blackclose is not excepted by the exception of the Mannor of Cudworth and so the first decree was upon a mistake out of the Law and Tanfield chief Baron said that the point is no other but that I infeoffe you of Blackacre parcel of the Mannor of D. exceyt my Mannor of D. this doth not except the King
his successor may present anew and seemed to him no question and to this purpose he vouched 12. Eliz. Dyer fo 292. that he may repeale and it is not of necessity that this instrument which purporteth the repeale should be shewed to the Gardian of the Spiritualties and by the 19. Eliz. fo 360. in Coleshils case if it is said that when the King hath presented a Repeale by him ought not to be admitted after institution see for such matters in the Book also he vouched Dyer 339. Yattons case to prove that the King may repeale his presentation by a new presentation without mention made of the former except that the second presentation be obtained by fraud as there it is and he vouched Dyer 294. Goodmans case and so he concluded Damport to the contrary there are two points The first is the Patron and a stranger corruptly agree to present Kitchin whereupon he is presented if this shall be void against Kitchin 2. admitting that the Queen had title to present and she presents and dyes before admittance if the King may present a stranger without mentioning the other presentation to be repealed As to the first he said that at the common Law so if one be simoniacally presented yet this is not void untill the Presentee be deprived and if before this Statute such a corrupt presentment had been made the incumbent and ordinary being free then no presentment should ensue and he vouched the saying of Linwood an Author of the Civill Law to be accordingly but if money be given by the friends of the Presentee and after the King had notice thereof and assent then it is not punishable but pardonable at the discretion of the King and now by him the Statute provides no punishment for the person when the Patron only consents to the Simonie for he observed that after the said Statute of 31. Eliz. had appointed a punishment for the Patron then in the last part of this branch the words are the persons so corruptly taking c. shall be incapable of the Benefice aforesaid and so it seemeth that the intent of the Statute is not to punish any party but he that is to the Simonie and this is also explained to be so by other Clauses in the Statute for another Clause inflicts punishment upon him who is party to a corrupt resignation and so in all the clause those only who are partakers of the Crime shall be punished and to prove that such comstruction hath been made upon penall Statutes that he only shall be punished who had notice of the crime he vouched Littleton who saith that upon the Statute of Gloucester notice was requisite or otherwise no default also he vouched to this purpose the case of Pickering in 12. Eliz. Dyer fo 292. a Lay Person presents a Bastard to a Benefice who was admitted accordingly c. and in a suite thereupon issue was admitted to be taken if the Patron knew that he was a Bastard so if he had no notice thereof then there is no default in him and he vouched 43. E. 3. to this purpose 22. E. 4. tit consultation and he well agreed Closse and Pomcoyes case now lately adjudged which was that Sir George Cary being seised of aâ— Advowson granted the next avoidance to his second sonne and dyed and after the Sonne corruptly agreed with I. S. to procure the said I. S. to be presented to this Benefice and the second brother knowing thereof it was agreed that for the perfecting of the agreement the second Brother should surrender his Grant and interest to the elder brother which elder brother not knowing of the said corrupt agreement presented the said I. S. who was instituted c. all shall be void for he is presented here by reason of this corrupt agreement between the Patron who then was and the parson and the elder Brother was only used to convey a bad gift by a good hand and all had reference to the corrupt agreement with the assent of the Patron who then was but here in our case was no agreement assented unto by the Parson and this diversity also seems to be good that if A. hath the presentation and B. the nomination to a Benefice and the Presentor upon a corrupt agreement makes a presentation unknown to the Nominator here the Nominator shall not be preâ—udiced within this statute As to the second matter it seemes that by the demise of the Queen this presentation is not countermanded or repealed in Law and therefore he said that he would agree that if the Qeen had made such an Act which was only a bare Authority without interest this will determine by her death as it was ruled for a Letter of Atturney to execute livery of Dutchy Lands for this is a bare Authority and is a means to do a thing to her prejudice and he agreed that by implication or without cause a common person could not vary from his presentation as if a Feme sole present and intermarry this is not controuled by her marriage for it is a thing which is not to her prejudice and he vouched Cook lib. 4. Forse and Hemlins case and one Marke Ogles case proveth that the death of a Common Patron is no revocation of his presentation for if a man present and dye if it be a disturbance his Executors may have a Quare impedit and much more in the case of the King who dyeth but he well agreed that the King might have repealed his presentation and after have resumed it again which proveth that it is not a meere Authority but mixt with an interest for an Authority revoked cannot be revived but without Actuall repealing it is not to be avoided and therefore he vouched Sir Thomas Wrothes case in Plowden fo 457. That if the King grant to one licence to purchase Land in respect that by a means this doth acquire an interest to a party this doth not determine by the demise of the King although the Grant be not for the King and his Successors so here this presentation is a meanes to give an interest to the Party and therefore is not determined by the Demise of the King and he vouched 1. Ma. Dyer fol. 92. and so if it be a Licence dispensative this is not determined by her death and he vouched 3. E. 3. fo 29. cited in Sir Thomas Wrothes case see more after Mich. 7. Jacobi in the Exchequer Sir Daniel Nortons case IN Sir Daniel Nortons case it was agreed that where one Oglander was chargable to the King for 27. l. for an Amercement for which Processe issued out of this Court to Sir Daniel Norton Sheriff of Hampshire to levie it and his under Sherif being Chamberlain came to Oglander upon another occasion and Oglander said unto him Chamberlain you do owe vnto me 30. l. by bond I pray you pay me whereunto Chamberlain said you are to pay me 27. l. for an Amercement which I ought to Levy against you by
certain place from whence the Venue should come c. Walter of the Inner Temple it seemeth that the plea is good First this plea although it is but to the writ yet it is peremptory as other pleas to writs are see l. 5. E. 4. fol. as to the conclusion of the plea it is but matter of form which the Clark ought to amend and therefore upon your general demurrer you shall not take advantage of it and by the Court this is but matter of form and not being alledged for one of the special causes agreed that notwithstanding the demurrer be special yet the Court ought to apply the conclusion alwayes as the matter of pleading will bear it and therefore if a man plead to the Iurisdiction of the Court and demand judgement of the writ yet it is good by Newton 7. H. 6. for if the Bar be good the writ is not maintainable and it was said by Popham in a case in the Kings Bench 34. Eliz. that one c. had two issues in one plea. First if one thing be once repeated in a plea repetition thereof will supplie all the residue for avoiding infiniteness in repetitions Secondly one c. will serve to supplie the defect in matter of form as here and as to the Objection that the plea is not good because no certaintie is shewed where the entrie was it seems to me the plea therein is good because here is no need in our case to mention the certainty in the Declaration for here by our plea we offer two things issuable viz. the entrie or not entrie Secondly if it be parcel of the premises or not and when divers things issuable are specified it is not necessary to shew the place of any for it is time enough to shew it in the rejoynder 3. H. 7.11.3 H. 6.8.41 E. 3.8.10 H. 6.1.14 H. 6.31 And therefore it was agreed in the Kings Bench that if one pleads in Bar divers matters issuable the Replication ought not to take issue upon any of them but leave it to the rejoynder to the intent that the place may be shewed therein and so here Secondly here a place is sufficiently shewed by awarding of a venire facias for it is certain enough to shew it to be parcel of the Mannors as it was resolved in Bailies case Trin. 7. Iac. in the Court of Wards then by the same reason it is good enough to shew it to be parcel of all the three Mannors for the Venue shall come from all as it shall be to trie the issue of all and by the demurrer here it is admitted to be parcel of all and therefore c. Thirdly he said that the omission of the place is but matter of form and such a thing is within the Statute of 27. Eliz. and ought to be specially set down or otherwise the partie who demurreth shall take no advantage thereof and to prove that it is but matter of form he vouched the case of Hall and Goodwin in the Kings Beuch Hill 31. Eliz. and he said that a Replication makes not the plea good which is evil in matter of substance and yet a Replication made to a Bar which wanteth a place maketh the plea good which proveth it to be but form also he vouched the case of 34. H. 6.2 in debt the Defendant pleads the receipt of parcel hanging the writ and 34. Eliz. in the Kings Bench between Noy and Midldeton such a plea was in Bar. Stephens the plea is not good in matter for the place where the entrie was made after the last continuance ought to be shewed for alwayes the most certainty ought to be observed for the Venue to arise as 6. H. 7. if Trespass be brought upon the Statute of R. 2. for entring into the Mannor of D. in D. the Venue shall come from the Ville and so here if the place be not parcel of any Mannors yet if it lieth in any Towns mentioned in the Declaration the Venue shall come from the Ville and not from the Mannor 32. H. 6.15 three several places are mentioned and one pleaded a deed dated at the place aforesaid it is not good also here it seemeth if the party will plead and not demur the want of place ought to be shewed in the rejoynder as it hath been conceived on the other side but if he will not replie but demur upon the Bar the plea in Bar is not good Trin. 40. Eliz. in B. R. Rot. 1023. an Action of Covenant was brought by a Bishop of a Lessee and no place alledged where the assignment was made and a demurrer thereupon and adjudged that the plea was not good and there it was also agreed that it was not matter of form and so here see after Tanfield chief Baron excepted to the form of an entrie for the King which was that Postea the Iustices of Assise Deliberaverunt Tenorem placiti c. for by him the Presidents in the Kings Bench are quod deliberaverunt recordum praedictum which as he thought was the best but after upon the view of a President shewed where an exception was taken in Baron Manwoods case upon a writ of error in the Exchequer Chamber after judgement given here and the entrie then allowed to be good and upon the view also of divers Presidents shewed by Turner Master of the pleas the chief Baron and all the Court agreed and resolved that the entrie of Tenorem placiti or Tenorem recordi is as good or better then recordum praedictum c. and therefore nothing was spoken to that exception see the President of pleading in Stradling and Morgans case Plowden where it is Tenorem placiti Sir Anthony Ashleys case IT was agreed by all the Court in Sir Anthony Ashleys case that if the King be intitled to the profits by an outlawry and after B. assigns a debt to the King and the King had granted the profits which accrued by the outlawry to Ashley yet the lands of Ashley may be extended for this debt for the King had no interest in the land but only the profits for the outlawry and therefore it may be extended for debt per Curiam quaere if so for a common person Hill 8. Jac. in the Exchequer Ewer against Moil Hill 8. Jac. in the Exchequer THe case was this that a Commission issued out of the Chancery to Baron Sotherton and others and this was in 7. Iac. to inquire what lands and Tenements the late Prior of Bister in Com. Oxon. had in Caversfield in the County of Bucks and to inquire if a rent reserved upon a grant made to Banbury of the lands of the Priory be arrere or not and by vertue thereof the Iury of the County of Bucks found that the Church of Bister in the County of Oxon. was founded by the name of the Church of Saint Mary and Saint Egbert and that Thomas Banbury Prior in the year c. made a lease to one Banbury of the moitie of
convicted of the intrusion and Moil said that he ought to shew matter sufficient whereupon he upon the intrusion aforesaid ought to be convicted so that a thing is demanded of us to give out judgement in which is not in question before us and therefore no judgement at all may be given here wherefore it is not needful for us to dispute other matters in the case and as to the questions in Law which were argued by George Crook and others Tanfield chief Baron nor Altham spoke not at all because they might come before them again to be adjudged upon a better office but Bromley and Snig Barons spoke to the matters in Law and their opinions were as follow and upon the plea of Moil the case was this that the Tenant pleaded protestando that the Priory of Bister was not founded by the name of the Priory of Saint Mary and Saint Egbert of Bister as the inquisition supposeth for plea he saith that one Thomas Banbury Prior of the Church of Saint Mary and Saint Egbert of Bister infeoffed him of the Mannor of Caversfield by the name of the Moity of his Mannor of Caversfield as also by the name of all his lands and Tenements in Caversfield and that the said feofment was made by the name of the Prior of Saint Egbert of Bister and that it was known aswel by the name of Saint Egbert as Saint Mary and that the Mannor of Caversfield was well known by the name of the Moity of the Mannor of Caversfield and that the Prior had no other land in Caversfield and shewed also that there is another in Caversfield which is called Langstons Mannor the which heretofore was the Priors and allotted as a Moitie of a Mannor in the same Mannor of Caversfields and those and other circumstances he used in his plea to the intent to shew that all the land of the Prior shall pass to him and he shewed that this Mannor sold to him was known by the name of Langstons Mannor Bromley Baron the Corporation is mis-named in the Grant because it is a thing material viz. the omission of the word Saint Mary for the name of assent in a body politick is as the name of Baptisme in a body natural and the name of Baptisme cannot be missnamed as it appears 3. H. 6. and 1. H. 7 if Iohn by the name of Thomas make an Obligation this shall not binde him if he doth not admit it and therefore it shall not conclude the King see the 11. Eliz. Dyer 279. where in some cases the estate shall pass by livery and seisin by what name soever it be made but a Corporation cannot pass an estate from them but by Charter and it may be conceived that the founder intended two things the one was Religion or more properly superstition the other was that it may remain to posterity as a Monument of the piety of his Ancestors and then if the name should be altered the remembrance would also decay and therefore what name soever is first imposed ought alwayes to be observed and that the omission of Saint is material and he vouched Eaton Colledge case 3. and 4. Ma. Dyer and 35. H. 6.31 the case of the foundation of Saint Peter and Paul c. but he agreed the case in 11. Eliz. Dyer 278. that omission of the word undivided is not prejudicial because no material variance Secondly it seemed that all the Priors Mannor of Caversfied passed by this grant for by 20. H. 6. and 22. H. 6. it appears that a feofment of 20. Acres by the name of a Mannor is good and 6. and 7. E. 6. Dyer if a man grant his Mannor in S. containing 10. Acres yet if it contain 20. Acres it is good and the word Omnia greatly inforceth the case as it seemeth wherefore c. Snig Baron said that the mis-naming is a material variance which avoids the grant also it seemeth that Omnia alia shall not be intended to refer to more then was granted by the other words except there were other lands besides the Mannor and therefore he thought that only a Moity of the Priors Mannor passed super totam materiam Sir Henry Browns case before HObert Attorney general it seems to me that the plea is not good for divers causes see the beginning before fol. he said that first every issuable plea ought to express a place but if the issue be triable by the Record or witnesses a place is not necessary 11. H. 7. fo 1. if there be no place there is no plea and therefore if it be beyond the Sea it is no plea. Secondly in our case there is no place alledged from whence the venue should come to trie the entrie in this case to be of all the premises for it is to trie the entrie but in one particular parcel but I agree as it hath been said of the other part if the entry had been alledged to be in the premises then the venue shall come from all the premises for here the plea of the entrie pleaded by the Defendant is double and yet it is good because of necessitie it cannot be otherwise intended in this case but I cannot plead in this case that I have not entred into two Closes parcel of the premises for that is Negative preignans as is in 9. H. 6. fo 44. in debt upon a bond where the Defendant was bound to require a house the Defendant said that A. by the command of the Plantiffe disturbed him the Plantiffe shall not be admitted to replie that A. did not disturb him by his command but by protestation that A. did not disturb him for plea that the Plantiffe did not command him c. 6. H. 6. fo 9. in a writ of entrie the Tenant pleads that the demandant confirmed after the last continuance the demandant shall not say that he did not confirm after the last continuance 5. E. 3. fo 1. in a per quae servitia of the grant to the husband and wife the Defendant said that the wife released while she was sole the other cannot replie that she did not release when she was sole but ought to deny the deed and so in our case if you will say by protestation that the place where the entrie is supposed is not parcel c. for plea that you have not entred after the last continuance then the issue ought to be joyned if we please or not and this shall not have any reference to the premises but only to the two Closes and then the venue shall come from the two Closes wherefore c. also by this plea so uncertain the Plantiffe is prejudiced for admit that in this case Hawkins the Defendant had re-entred before the day of nisi prius this had made our writ good again as appears by 26. H. 8. fo 10. and 36. H 6. and 8. H. 7. and then if here the Defendant will say that the Plaintiff had entred before the issue now it shall not be
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
judgement ought to be given for the Defendant for he laid that the Patent made to Hitchmore proveth that it was not made by reason of any suggestion of the partie for it is expressed to be made ex mero motu c. and then the not surrendring of the other Term doth not vitiate also if the lease be forfeited to the Queen for not repairing then the Queen should have a title before the lease made to the contractors under which the Plaintiffe claims and that not being found by office the contractors shall have no benefit thereof and as to the cases 9. H. 6. and Torringtons case cited Cook lib. 1. Altonwoods case the words of the Patent which express that the Patent should be good so that it be not ad nocumentum c. which is not in our case doth not prove the case in question also if the consideration be smal and recited as executed it doth vitiate the Patent although it be false and it is said in Sir Thomas Wrothes case in Plowden that it is not honourable for the King to construe his Patent to be void by colour of deceipt upon an inference except it be upon a manifest deceipt and in Barwicks case Cook lib. 5. the consideration was a surrender of all the estate and therefore it differed from the case in 18. Eliz. Dyer because there it was in consideration of an estate which in truth was never in being and the cases whereupon he relied for the proofe of this matter is the principal case of Altonwoods and the Lord Chandos case that if a violent intendment might be admitted in the Kings grants upon an inference it might be here inferred that the King should have the estate by this particular surrender but the Book is resolved that no such inference shall be admitted to avoid the Kings patent or otherwise but in that case of the Lord Chandos it appeared that the information of the partie was true and so it was not here because it was informed that all the right which Potter had is devolved to Hitchmore which is not so and therefore a difference between those two cases Nota that the course of this Court is that if A. be indebted or be an accomptant to the King and A. hath another debtor which debtor hath a third person indebted unto him in such case A. may by English Billin the Exchequer pray that the estate of the debtor of his debtor Pasch 9. Jac. in the Exchequer may be extended for the debt of the said A. and it shall be granted Clerk against Rutland IN 6. Jac. in Ejectione firme between Clerk and Rutland it appeared that a feme sole possessed of a Term of years assigns this to A. in trust and after entermarries with him in reversion and after the husband being in quiet possession he and his wife joyn in a Bargaine and sale to B. upon valueable consideration and after the wife dies and the assignee doth set on foot the lease and if this shall be void against the Bargainee was the question upon evidence and it seemeth not because the Bargainee claimeth nothing by conveyance from the wife and also this trust in the Term doth not belong to the husband after the death of the wife for Tanfield said that it was decreed in the Chancery and the opinion of the Iudges was in one Denies case if a feme sole assign a lease in trust and after taketh husband and dieth that the administrator of the wife should have this trust and that the Administration shall be granted for this Term although there be no other thing for which the Administration ought to be granted also it was touched in this case that if the father make a lease for fortie years to a stranger and continue in possession and after conveys the land to a younger son who for a valuable consideration conveyeth it over it was doubted if the purchasor should avoid this lease or not but it was said that if in that case the father after the making of such a lease had suffered the land to descend to his eldest son who had been privie to this trust that then the Purchasor of the eldest son should avoid this lease as it was ruled in Burwels case Cook lib. 6. Upon a motion made by Prideaux that Robert winter one of the Powder Traitors made a lease for years 1. Jac. to one Gower and that after 3. Jac. the Lessor was attainted of Treason by Parliament which attainder related to a time before the conveyance of the Fee and if in this case the Term be saved or lost it was the question Pasch 9 Jac. in the Exchequer Wickham against Wood Pasch 9. Jac. in the Exchequer EDward Wickham declared in an Ejectione firme that Skreen 17. April 6. Jac. at Framlingham in Suffolk demised to him 30. Acres of pasture to have for three years c. and upon the general issue pleaded the Iury found that Thomas Cooper and three others were seised of the lands in question and the fifth of February 24. H. 8. infeoffed by Indenture M. B. and five others to the uses and intents mentioned in a Schedul annexed and that was upon condition that if they aliened to any other uses or purposes that the Feoffor should re-enter and the Iury also found the Schedule which in effect was this viz. that the Feoffees and their heirs should take the profits and therewith finde an honest priest by them or the greater number of them to be hired and competently paid to say Mass for the soules of the Feoffor and his friends and that by the space of 99. years then ensuing and at the end of the said years the Feoffees their heirs and assigns who then should be seised should sell the lands and with the money finde a Priest to Chaunt for the soules aforesaid and with the said moneys or lands also to make further provision for a competent poor honest Priest for the timr being if then it could be by a Amortization or otherwise as they should think best for the sure and long continuance of the said honest Priest if so it could be continued by order of Law the Iury found all things executed accordingly and the finding of a Priest from the 24th of H. 8. untill the first of Ed. 6. by which Act the King was entituled prout lex postulat and that Queen Eliz. granted to Mildmay for 21. years upon whom Fuller the heir of the surviving Feoffee entred and made a Feofment to Wilbey and Skreen by force whereof they were seised and Mildmay re-entred and his Term expiring he obtained a new lease 43. Eliz. and made a lease to Wood and Skreen survived Wilbey and made a lease to Wickham who entred and being outed by Wood brought this Action Bromley puisne Baron upon all the matter I observe three things First if the Fee-simple in this case by the letter or meaning of the Statute be given to the Crown for the lease
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