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
Sir Robert Dudley appointed and after Sir Robert Dudley by licence from the King Travelled beyond the Seas to Venice and after the Barganees made a lease to Sir Robert Lee to the intent that the Lady Dudley should take the profits of part thereof for ten years if the estate of the Barganees should continue so long unrevoked and after the King having notice of divers abuses made by the said Sir Robert Dudley in the parts beyond the Seas commanded the said Sir Robert Dudley by privy Seal delivered unto him the 10th of April in the 5th year upon pain of forfeiture of all his lands and fortunes to return again immediately c. and after a Commission issued forth to inquire what lands and Tenements c. Sir Robert Dudley had or others for him in use or upon confidence and the Iury found this special matter but found not any fraud expressy and thereupon the King exhibited his Bill here against the Barganees and also against Sir Robert Lee their Lessee who truly discovered all this special matter and that they were not knowing of the Deed until long time after making of it and that no consideration was given by them in this case for the lands so bargained and it was argued by Sir Henry Mountague Recorder of London for the King if these lands should be seised or not he conceived that there are three things considerable in the case First the contempt of Sir Robert Dudley in his not returning upon the sight of the privy Seal and of what quality this offence is Secondly what interest the King had by this offence in the land of Sir Robert Dudley being the offender Thirdly if notwithstanding these offences these lands ought to be seised for the King touching the first point he said that it is requisite to examine if a subject at the Common Law may go beyond the Seas without Licence and in what cases the Law allows a man to go out of the Realm without Licence and as to that he said that it appears by the reason in the 12th of Eliz. Dyer that at the Common Law every man may go out of the Realm but the Statute of the 5. Richard 2. restraineth all but Merchants noble men and Souldiers and as he conceived this was but an affirmance of the Common Law notwithstanding the Book before cited and to prove that he said that the opinion of Dyer in the first Eliz. fo 165. seemeth to agree also it is proved by divers Licences granted before this Statute see F. N. B. fo 85. in the writ de securitate invenienda quod Se non divertat ad partes exteras sine licentia regis according to the 12. Eliz. in Dyer and he further said that there are two reasons to prove that no man may go beyond the Sea without Licence at the Common Law for by 2. E. 3. and the 16. E. 3. and Glanvil in his Chap. of Essoynes by such means the subjects may be deprived of their suits for debt and also the King may be deprived of the attendance of his subject about the business of state and it appears by the Register fo 193. 194. that religious persons purchased licences to go beyond the Seas and it appears by Littleton in the Chap. of confirmation that a dissent takes not away an entry of him who is beyond the Sea except it be by the Kings commandment see the case intended by Littleton in the Chap. of Continual claim there it seems to be a doubt to Littleton then he argued further if the Common Law alloweth not a subject to go beyond the sea without licence but reputes it a great contempt this is a great contempt in him who will not return by the Kings command and the Law hath alwayes punished such contempt as it appears by Dyer fo 28. 177. 19. E. 2. John de Brittons Case also there is a president for seisure of all his lands for such contempt and he vouched the book what the King had done where he cited that the Prior of Oswaldshire forfeited all his lands and possessions for such contempts and so concluded the first point of the quality of the offence and spoke nothing of the licence which Sir Robert Dudley had of the King at the time the which as it seemeth was not expired nor the power which the King had to Countermand it within the time to which the Attorney general in his argument did speak to the Second point it seemeth that the contempt giveth such an interest to the King that he shall retain the land until conformity for he who dwelleth in contempt ought not to have any possessions here and he cited the 22. H. 6. and the 21. H. 7. and divers other books which are cited in Calvins Case Cook lib. 7. also he said that there is a difference where the King is offended as King of England and where as head of the Kingdome as this case is which is a greater offence in qualitie then for any offence for which men should lose their lives as if they should stand mute upon their arraignment c. also there is a great difference between this contempt and by outlawry and therefore in case of outlawry he needs no office but the King is only intitled to the profits of his lands which is but a transitory Chattel in which case an office is not necessary but where an interest coms to the King there ought to be an office and he vouched Pages Case in Cook lib. 5. and Sir William Herberts Case but he did not endeavour to prove what interest came to the King in this case for when an interest comes to the King there ought to be on office as to the second point he said that trust between parties is fraud as to the King and in this case the badges of fraud are found by the office First his purpose to go beyond the Seas Secondly his Barganees are not privy to the Deeds Thirdly no summe was paid by them Fourthly here is a power of Revocation Fifthly covenants to execute all grants as Sir Robert Dudley appointed Sixthly the subsequent Act that is viz. his staying beyond the Seas and his not returning upon the Kings command and although in this case there be no fraud in the parties who are Barganees and so the fraud is only of one partie yet it appeareth by the 19. of H. 8.12 that if an infant hath right to land and a stranger disseise the Tenant to the intent to infeoffe the infant without Covin in the infant yet the infant shall not be remitted and he vouched Delamores case in Plowden to be accordingly also there are divers cases in our books to prove the inveterate hatred which our law beareth to all Acts which are fraudulent and therefore in 44. E. 3. 41. Assise pla 28. it appears that a recovery upon a good title although it be in Dower which is favoured in Law against a Tenant who comes to the
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
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
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
feise a mans lands into their hands for the Kings use also he said that this appears by the 11. E. 4. and 2. Eliz. Dyer if a man comes and saith that he surrenders his office and a Memorandum is recorded thereof but the Patent is not delivered up it seems this is not sufficient to make a surrender so on the other side if the Patentee make a deed purporting asmuch yet it appeareth by 19. of Eliz. Dyer if the deed be not inrolled it is a good surrender and he agreed to that which hath been objected against him that although that the Iury did not finde in what Court the restoring of the Patent was yet it ought to be intended to be made in Chancery but he said that the Iury did not finde any time when the surrender was made and that is a thing material to be found as it appears in Kemps Case and Mack Williams Case before Thirdly an actual surrender being in the King new letters Patents urged to be made shall be intended to be part of the consideration which moved the King to a new grant and he vouched 18. Eliz. Dyer 352 where a lease was recited which needed not and in facto the said lease was a void lease in Law And therefore the new lease made was also void à fortiori here where an actual surrender is recited to be made Fourthly he said that the sole reason in Harris and Wings case was that the first lease ought to have been recited for if the King makes a lease and after makes another lease of the same land to the same lessee the first lease is in being at the time of the acceptance of the new lease as appears by Fulmerstons case in Plowden and therefore if in such case there be not a good recital of the lease in being the second lease is not good and so the acceptance of it makes no surrender of the former lease and he said that the recital of the Queen in the principal Case is a shewing of a former lease destroyed and not in being and then no actual surrender being made the said former lease contrary to this recital is in being still and so the recital is false and consequently the second lease is a void lease and so this worketh no surrender in Law of the old lease and so he concluded the fourth point that here is no surrender in Law and he held that if there had been a good surrender in Law yet this had not made the Patent good and where it was objected that a consideration executed though valuable being false avoyds not a Patent he said it appears in 6. Ed. 2. tit pardon Brook 79. that a consideration of service in the Kings Patent ought to be alledged to have been performed nevertheless it appears in Sir Thomas Worths case in Plowden that such a particular service being alledged in the Patent to be executed needs not an averment that it was performed for the Patent is good although such consideration be false but he said that in this Case the precedent surrender is the material consideration and therefore there ought not to be any material variance in the form of the consideration and so is the difference betwixt this Case and Worths Case and therefore if the King make a grant to A. in consideration that he had released by deed inrolled and he had released by fine here is a failing of the consideration that he had released by deed inrolled when as he had released by fine and so the grant is void and he said that as it appears by the judgement given in Welshes Case cited in Altonwoods Case that no equitie ought to be observed in the Kings grant against his express words so here no equitie ought to be observed against the King otherwise then his plain words import and therefore here his words import and intend an actual surrender precedent which ought not to be satisfied with a surrender subsequent and after upon the motion of the Earl of Salisbury Lord Treasurer of England this Case was referred to the Lord Privy Seal and the Lord of Worcester who awarded to Sir Robert Johnson 200 l. per annum during his life and the life of his wife for all his interest but the Earl of Salisbury Lord Treasurer seemed that the matter in Law was against Sir Robert Johnson although that equitie was for him to which opinion Tanfield chief Baron also inclined in regard there was not here any surrender in the Case but an extinguishment only Hill 4. Jac. in the Exchequer IT was moved by one whether the Kings Patentee of Pirats goods seising some goods of Pirats should pay custome for them or not and it was holden by the Barons that he should pay none for in asmuch as they are goods given by Law unto the King no reason that he should have custome for his own goods The Case of Queens Colledge in Oxford of Minosmer UPon a special verdict the Iury found that Queens Colledge in Oxford was incorporated by the name of Provost and Schollers of the Hall of the Queens Colledge of Oxford and they were seised in fee of an advowson whereof the place is parcel the Church being void the Provost and Schollers aforesaid did by the name of Provost of Queens Colledge in the Universitie of Oxford and the fellows and Scholers of the same present one A. to the same avoydance who after admission c. made a lease for years yet to come to the Defendant which was confirmed by the Patron and Ordinary and that afterwards A. died and the Plautiff was presented admitted instituted and inducted and the Defendant entring claiming his lease the Plantiff had brought this Action Harris Junior Serjeant for the Plantiff seemed that the presentation of the lessor of the Defendant was not by the true name of the Patrons and so the lease void and therefore the Defendant a Trespasser as to the Plantiff and he said that the name of a Corporation is not like to a mans surname which groweth by nature but is like to a name of Baptisme which groweth by politie and therefore ought to be truly observed in their grants and presentations as appears by 35. H. 6. fo 5. and it is there said if a man be baptized by the name of Posthumus if this addition of Posthumus be omitted this abates the writ but yet he agreed that variance of the name of a Corporation in some manner of Surplusage hindreth not as in Plowden Crofts and Howels Case and it was in Fisher and Boys Case ruled that Custos for gardianus was not any material variance but he said that in Mich. 29. 30. Eliz. in Banco Regis in Merton Colledge Case where the title was that the said Colledge was incorporated by the name of the Colledge of Scholers of the house of Merton Colledge and in a lease by them this word Scholers was omitted and holden void for that cause and so it was betwixt one Wingate
hurteth not the Merchant nor no other but only a smal number of delicate persons and those also who are of most able and best estate for their pleasure but when the King is in want he is to be relieved by a general imposition or subsidie upon all the subjects the imposition which is here said to be so great and intollerable is an evil president for if he may do so much he may do it in infinitum and upon all other Merchandise for the Imposition I say that it is reasonable for it is no more then foure times so much then was before and that there hath been asmuch done in antient time in other Imposts as in that of Wooll which was at first but an Noble a fack and is now at 50. s. the Impost of Wine was in antient time 3. s. 4. d. a Tun and now is foure Marks the lessening of custome and Impost is much to be guided by intelligence from forrain Nations for the usage and behaviour of a forrain Prince may impose a necessitie of raising custome of these Commodities and so it was in the particular of Currants the Duke of Venice Imposed upon them a ducket by the hundred which by the wisdom of the state was foreseen to be a means that in time will waste and consume the Treasure of the land whereupon the Queen writ to the Duke that he would abate his custome which he refused wherefore to prevent that so great a quantitie of this Commoditie should not be imported into the land the Queen granted to the company of Merchants of the Levant that none should bring in Currants but by their Licence and those Merchants Imposed upon them who did Import which were not of their company if he were denizen 5. s. if he were a stranger 10. s. and this was paid by the Merchants without contradiction but there was a clause in the Patent that when the Duke of Venice abated his Impost that the Patent should be void and after the Duke was Solicited again that he would abate the Impost but he refused and the first Commission was recalled and after a new grant was made which was executed all the Queens life time which was as aforesaid and whereas it is said that if the King may Impose he may Impose any quantitie what he pleases true it is that this is to be referred to the wisdom of the King who guideth all under God by his wisdom and this is not to be disputed by a subject and many things are left to his wisdome for the ordering of his power rather then his power shall be restrained the King may pardon any fellon but it may be objected that if he pardon one fellon he may pardon all to the damage of the Common-wealth and yet none will doubt but that is left to his wisdom and as the King may grant a Protection for one year so it may be said that he may grant it for many years which is a mischief and so ought to grant none which will not be denied but that he may so it may be said that the Queen may grant a safe conducted a stranger for if she may do that then she may grant to all which would be but then same to the inhabitants and yet it will not be denied but that she may grant to any or all as in her wisdome shall seem convenient and the wisdom and providence of the King is not to be disputed by the subject for by intendment they â—â—mot be severed from her person and to argue a posse ad actum to restrain the King and his power because that by his power he may do ill is no argument for a subject to prove the power of the King by presidents of antiquitie in a case of this nature may easily be done and if it were lawful in antient time it is lawful now for the authoritie of the King is not diminished and the Crown hath the same Attributes that then it had and in antient time such Imposts were never deuied and that which is given by Parliament is not an Impost but a subsidie in antient time small Traffick or intercourse was betwixt the inhabitants of this land and forrain Nations so that the principal custom was of the Commodities of this land which were Wolfels and Leather and that the custom for Wools was an Noble for a Sack was an imposition as it appears by the Statute of the 14. of Ed. 3. cap. 21. it is objected that Merchants cannot be restrained but only persons suspected as the writ of ne exeat Regnum is but as it is said in Dyer before cited it is without doubt that the cause is not Trasable and that the King may inhibit any man for if it be not Traversable it is not material and the reason wherefore any man may be restrained is for defence of the Realm and it may be done by privie Seal privie signet great Seal or Proclamation and that appears by the writ of licentia Transportandi in the Register which containeth licence for one to Travail and limits him to what place he shall go and when he shall return and with what goods that the King may prohibit body and goods and when a man is beyond the Seas the King may command him to return and if be doth not obey such command he shall forfeit his good now 〈◊〉 restraint of commodities many presidents are to prove it in the time of H. 3. and E. 1. it was forbidden that no Wooll should be Transported into Flanders and in E. 1. a Comuâ—â—ssion was awarded to inquire who had done against this ordinance and the goods of one Freeston were seised therefore an Attachment awarded against the Ships of Hull for Transporting contrary to the ordinance in the 22. E. 1. there it was forbidden that no Merchant should Trade with France for Trade with forrainers is a forrain thing which is only referred to the King in the 17. H. 6. all Merchants were forbidden to import wares from Flanders into this land and the Cittizens of London complained of certain Merchants which had done contrary to this ordinance to the Lords of the privie Councel which I have here ready for the Record mentions it and the Kings Attorney was commanded to exhibit an information against the Merchants which he did and they pleaded that the Proclamation was made here upon Easter Eve and that they were then at Bruges and upon the Wednesday after Bruges Market they bought the wares before notice of the Proclamation and before it were possible that they could have notice of it and pray judgement c. and so much for restraint of the person and goods by the Statute of 31. E. 3. Cap. 8. times were appointed in which Wools should be Transported and also Cap. 9. Authoritie was given to the Chancellor and Treasurer to defer the passage at their pleasure but that this was the Common Law and that the King by his supream Authoritie might do it
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
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
declares the use to be to himself for life and after to T. B. with power of revocation and to limit new uses and if he revoke and not declare then the use shall be to the use of himself for life and after to Henry Becket with power in that indenture also to revoke and limit new uses and that then the fine shall be to such new uses and no other and after 42. Eliz. by a third Indenture he revoked the second Indenture and declared the use of the fine to be to the use of himself for life and after to Hen. Becket in taile the remainder to I. B. c. R. B. dies and T. B. his brother and heire is found a Recusant and the lands seised and thereupon comes H. B. and shews the matter as above and upon that the Kings Atturney demurreth Bromley and Altham Barons that the Declaration of the uses made by the third Indenture was good and he having power by the first to declare new uses may declare them with power of Revocation for it is not meerly a power but conjoyned with an interest and therefore may be executed with a power of Revocation and then when he by the third Indenture revokes the former uses now it is as if new uses had been declared and then he may declare uses at any time after the Fine as it appears by 4. Mar. Dyer 136. and Coke lib. 9. Downhams case and in this case they did rely upon Diggs case Cooke lib. 1. where it is said that upon such a Power he can revoke but once for that part unlesse he had a new power of Revocation of Vses newly to be limited whereby it is implyed that if he had a new power to appoint new uses he may revoke them also Snig Baron to the contrary and said that he had not power to declare 3. severall uses by the first contract which ought to Authorise all the Declarations upon that Fine and then the Revocation by the third Indenture is good and the limitation void and then it shall be to the use of R. B. and his heirs and so by the death of R. B. it doth descend to T. B. the Recusant and also he said that such an Indenture to declare uses upon uses was never made and it would be mischievous to declare infinite uses upon uses Tanfield held that the uses in the second Indenture stand unrevoked and the new uses in the third Indenture are void and then H. B. ought to have the Land again out of the Kings hands The power in the second Indenture is that he may revoke and limit new uses and that the Fine shall be to those new uses and no others and then if there be a Revocation and no punctuall limitation he had not pursued his Authority for he ought to revoke and limit and he cannot doe the one without the other Also he said that after such Revocation and limitation the fine shall be to such new uses and no other then if there be no new uses well limited in the third Indenture the former uses shall stand void Nota it seemeth that if a man make a Feoffement and declare uses and reserve a power to revoke them without saying moe he cannot revoke them and limit new for the use of the Fine being once declared by the Indenture no other use can be averred or declared which is not warranted thereby for he cannot declare the fine to be to new uses when it was once declared before Cook lib. 2.76 That no other use can be averred then that in the conveyauce Cooke lib. 9 10 11. Although that the first uses are determined as if a man declare the use of a Fine to be to one and his Heires upon condition that he shall pay 40. l. c. or untill he do such an Act if the first use be determined the Fine cannot be otherwise declared to be to new uses And therefore it seemes that all the uses which shall rise out of the Fine ought to spring from the first Indenture which testifieth the certain intention of the parties in the leaving thereof and then in the Case above the second Indenture and the limitation of new uses thereby are well warranted by the first Indenture and in respect that this is not a naked power only I conceive that they may be upon condition or upon a power of Revocation to determine them But the power to limit the third uses by a third indenture after revocation of the second uses in the second indenture hath not any Warrant from the first Indenture and without such Warrant there can be no Declaration of such new uses which were not declared or authorised by the first Indenture which Note for it seems to be good Law FINIS AN EXACT TABLE of the Principall Matters contained in this BOOKE A. AN Action of false impriprisonment for taking his wife in execution she appearing as a Feme sole 48 52 An Action upon the Case for conspiring to outlaw a man in a wrong County 49 Amerciament for a By-law 55 An Action upon the Case where against a Servant for breach of trust much good matter 65 66 67 68 Amerciament where well levied by the Sheriff 74 Action by an Executor against a Sheriff in the debet and deâ—â—net where good 80 81 Authority in fact and authority in Law abused a difference 90 Action for these words against I. S. spoken of the Plaintifs wife she would have out her husbands throat and did attempt to doe it 98 C. Custome for Pirates goods if payable 15 Coppy hold surrendred to the use of a younger Sonne he can have no Action before admittance 20 Churchwardens if elected by Vestry-men where good and capable to purchase Lands 21 Conspiracy see Action Collector of a fifteenth leviable upon one Township 65 Commissioners of inquiry and their power 83 84 D. DEbt against the Sheriff for an escape a good Case 20 Distresse for a By-law upon the Kings Tenant he must bring his Action in the Exchequer 55 Devise to the wife until the issue accomplish 18. years endeth not by death of the issue before 56 57 Decree where execution thereof may be stayed 68 69 E. ERror a Writ directed to an inferiour Court ought to be executed without fee paid or tendered 16 Elegit the party who sued it dieth no scire facias for the Heire 16 Equity where releviable in the Exchequer 54 Estreats where they may be discharged for insufficiency in the Indictment or not mentioning the offence 55 Estoppell in the Kings case 65 Exception in a Grant 69 Escape a difference where caused by a rescous and where by the Sherif or Bailif 70 71 Executor see Action 80 81 Erroneous judgement given in the Kings Mannor reversed in the Exchequer by Petition 98 F. A Feoffement to the use of the Husband and Wife for their lives and after to the heirs of the body of the wife begotten by the Husband what estate 17 First fruits ought