Recusant may be seised after his death Thirdly if they shall be charged by the Statute of 1. Iac. as to the first it seems they are not wherein I shall endeavour to prove three things First that such land was not liable to debt by the Common Law Secondly that they are not liable to debts by the general words of the Statute Law Thirdly that they are not liable to debt by any word within the Statute of primo Iac. as to the first he observed that here is no fraud put in the case but that these lands and leases were never in the Recusant so that before that they were conveyed to the Defendants they were not liable to this debt and I alwayes observed that which the common law calleth fraud ought to be of such nature as shall be tortious and prejudicial to a third person and put him in a worse estate and condition then he was before and then he who is so prejudiced in some cases should avoid such conveyances by the common Law 22. Assises 72.43 Ed. 3.2 and 32. the Defendant in debt after judgement aliens his goods and he himself takes the profits yet the Plantiffe shall have them in execution so that if a man binde himself and his heirs in an Obligation and dies and assets descend to his heir who by Covin aliens those assets yet he shall be charged in debt for in these cases the Plantiffe had a lawful debt and such lands and goods before the alienation were liable and that former interest was intended to be defeated by those alienations and therefore they are void but of the other side where no former interest of the partie is wronged there no fraudulent conveyance was void at the Common Law and therefore if Tenant in Knights service had made a fraudulent Feofment to defraud the Lord of his wardship this was not aided by the Common Law until the Statute of Marlebridge for the title of the Lord was not prejudiced or wronged by this Feofment because it was subsequent to the Feofment also after the said Statute the Lord was without remedy for his release for it is agreed in 17. Ed. 3. fo 54. and 31. Ed. 3. Collation 29. and therefore at the Common Law if cestuy que use had bound himself and his heirs in an Obligation and died if the use descended to his heir none will say this use was assets to the heir and so was Rigler and Hunters case 25. Eliz. as to the second point it seems that the general words of a Statute shall be expounded according to the rule and reason of the Common Law and by the Common Law such confidence is not extendible therefore c. Westmin 2. cap. 18. which gives the elegit hath these words medietatem terrae and within those words an use was never extendible by that Statute 30. Ed. 3. because it was not an estate in him and so if a man be indebted for Merchandise or money borrowed and makes a gift of his lands and Chattels to defraud Creditors and takes the profits himself and flieth to the Sanctuary at Westminster or Saint Martins and there abideth by conclusion to avoid the payment of his debts it is thereby enacted that Proclamation shall be made at the Gate of the Sanctuary where such person resideth by the Sheriffe and if such person doth not thereupon appear in person or by Atturney judgement shall be given against him 2 Rich. 2. Stat. 2. cap. 3. 1. Rich. 3. cap. 1. and execution awarded aswel of those lands and goods given by fraud as of any other out of the same Franchise these words are more particular then the Statute of Westminster the second and yet it was doubted if it did extend to executions for debt as it appears by 7. H. 7. and 11. H. 7.27 and therefore in 19. H. 7. cap. 15. an Act of Parliament was made that execution for debts Recognizances and Statutes should be sued of lands in use As to the third it seems that that Statute doth not make lands in use liable to debts the words of the Statute are that the King shall seise two parts of the lands Tenements and Hereditaments leases of Farms of such offendors so that they are as general as the words of the Statute of Westminster 2. cap. 18. and here those lands and leases were not the Recusants for he had but a confidence in them the first clause of the Statute doth not extend thereunto for two causes First in regard that it never was in the Recusant and this clause extends only to such conveyances which are made by any man which hath not repaired or shall not repair to some Church for the disjunctive words do not extend throughout that branch but to the last part thereof viz. that which cometh after the word and for otherwise this would extend to conveyances made at any time without limitation which should be against the meaning of the Act. Secondly this Branch provides what shall be done concerning the King touching the levying and paying of such summes of money as any person by the Lawes of the Realm ought to pay of else to forfeit c. and by the Statutes before made nothing was forfeited but for such time as is mentioned in the Indictment which in our case is but 6. moneths but out of this branch a strong argument may be made in respect that the Statute avoids all conveyances made by Recusants in trust by express words but saith nothing to conveyances made by others to the use of Recusants and therefore this Statute doth not extend unto it if Tenant by Knights service infeoffs his heir within age and dies the Lord may enter upon the heir without suing an action but if a Feofmenche made to a stranger there he cannot enter but ought to bring his Action according to the provision of that Statute because it may be to the use of the Feoffee but no such provision is made for the heir the Statute of 3. Jac. cap. 4. provides by express words that the King shall seise two parts of all the lands Tenements and Hereditaments Leases and Faims that at the time of such seisure shall be or afterwards shall come to any of the hands of the said offendors or any other to their use or in trust for him or her or at his or her dispose or disposition or whereby wherewith or in consideration whereof such offendors or their families or any of them shall or may be relieved maintained or kept c. the different penning of these Statutes proves the diversitie of the meaning thereof this Statute is a new Law which gives to the King this penalty which he had not before and in new manner for it appoints that the partie shall be convicted by Proclamation and that being so convicted he shall alwayes pay the said penaltie until his submission without any other conviction 3. Jac. cap. 4. and also limits a manner how this new penaltie shall be levied viz.
the which the Lord chief Baron Tanfield said insist not upon a labour of that kinde for it is plain enough because the Queen being partie there can be no Estoppel as to any part in that case also as to that part of his argument Mr. Walter agreed on the other side and also he said that if a grant of the Queeen were void at the Common Law for default of want of consideration this Statute aids not Walter for the Defendant and he divided the case into foure points the first whether the Tenant for life by the Kings guift by surrendring his letters Patents hath also surrendred his estate Secondly if the surrender in this case made be defective only for want of matter of circumstance as the inrolment c. whether such defects are saved by the Statute 43. Eliz. Thirdly whether in this case an actual surrender be the consideration meerly which moveth the Queen to grant or what shall be intended the consideration in this case Fourthly admitting that an actual surrender is the sole consideration in this case then whether a Patent shall be adjudg'd void for default of such consideration for a false consideration doth not avoid a Patent but a false surmise doth first when the Kings Tenant for life doth surrender or give up his Patent although without deed yet with such circumstances as the law requireth the surrender is good for although a surrender of letters Patents made by the Kings Tenant in tail will not make estate tail void or determine as it appears by the book case of 35. H. 8. title surrender and Cook 6. the Lord Chandos case yet the bare giving up of the letters Patents by a Tenant for life is a surrender of his estate so here in this case is some proportion between a Tenant for life of the Queen and a Tenant for life of a Common person to amount to a surrender and therefore it appeareth by 43. E. 3. that a Tenant for life may surrender without deed and without livery and from the land but a Tenant in tail may not do so also if a Common person hath a rent or other thing which cannot pass but by deed yet a surrender of such a rent shall be good by a bare deliverie up of the deed if he hath but an estate for life in the Rent and this also although it be but to the disseissor of the land out of which c. the same Law he took it of a particular Tenant for life of years also 32. H. 8. Brook Patents 97. it is made a doubt whether the estate tail of the Kings Donee be determined and gone by surrendring of the letters Patent and he referred that if thought worthy of a doubt whether it should be a good surrender of an estate tail they would hade held it clearly a surrender for an estate for life and it was admitted 3. Eli 2. Dyer fo 193. Mack-Williams case that if in the principal case if a Vacat or cancellation had been the surrender had been good actually without question and Sir Maurice Barkleys case cited on the other part proves the same also for there it is admitted that if the letters Patents had been given up there had been a perfect surrender And 40. H. 3. fol. 5. Belknap held that a surrender may be by word which is to be intended by giving up the Patent and that appears by Rolfs case in Dyer that a voluntary surrender needs no Conftat also where it hath been objected that the special verdict in this case hath not found in what Court the surrender was made he answered that the Law shall intend it to be made in the same Court from whence the letters Patents did issue for a surrender cannot be good being made in another Court and therefore it must needs be intended the same Court and he vouched 11. Ed. 3. fo 1. and 18. Eliz. Plinies Case and Covel and Cabels Case in Banco Regis 38. Eliz. wherein a special verdict it was holden that all things necessary for the perfecting of that the Iury hath found to be done must be necessarily intended concurrent Secondly the want of circumstances in a surrender are perfected and supplied by the Statute of 43. Eliz. for although matters of substance are not aided within this Statute yet matters of circumstances are aided And he said that all the defects in this Case are matters of circumstance and to prove that the defects in this Case are only in circumstance he said that there are three principal defects in conveyances which are meerly matters of circumstance and aided within this Statute the first is meerly want of form in a conveyance and that such a defect is aided he cited Hussies Case to be adjudged accordingly the second is where words are wanting in a conveyance and that such a conveyance is aided by this Statute he cited the opinion of Popham and Gawdy in 44. Eliz. in a cause depending in the Chancery the third matter of circumstance is where there is want of some matter concerning the executing of an estate and that such defect is only matter of circumstance and aided within this Statute he cited Morley and Whartons Case to be adjudged 7. Eliz. in the Common Pleas that the default of not inrolling is aided by this Statute and Mack-Williams and Kemps Case cited in Dyer before proves this to be but matter of circumstance and for that he thought the surrender in the principal Case wanting nothing but inrolment is aided by this Statute also in the argument of the second point he shews what defects in conveyances should be accompted matter of substance and so not aided by this Statute of 43. Eliz. and to this purpose he held that all disabilities of the person in a grant is matter of substance and so not aided within this Statute and he cited Twynes Case 32. Eliz. in the Exchequer to be accordingly Secondly he held that the nature of an assurance is not aided by this Statute and therefore if a man hath power to grant an estate by fine and he doth it by Deed this is not aided by the Statute for this is defective in matter of substance and he cited Wisemans Case and Sir Hugh Cholmleys Case in Cook l. 2. also he said if a man give land to the King and his heirs to have ten years after such grant this is not made good by the Statute Thirdly whereas it may be Collected that because it is found in the special verdict that an actual surrender was the cause which moved the Queen to grant or that it appears to be the cause he held that no consideration plainly appeareth but only by relation to a consideration before mentioned and he said that these words used by the Queen viz. modo habens et gaudens shew that the Queen took notice the state was still injoyed notwithstanding the delivery up of the letters Patents and therefore it cannot be intended by the verdict that the Queen intended
above mentioned of a lease for years and also it was there said that if Tenant for life be the remainder to the King for years the remainder to another in Fee and the Tenant for life makes a Feofment in Fee this drawes the Kings remainder out of him and so he held that here is no gift Secondly that here is no imployment and so the Feofment is made good Altham second Baron contra I will consider only two points First if it be a gift for years or for ever and I say that it is a gift for ever for here is no intent in the Donor to determine the superstitious use because he doth not limit any other use to which it should revert but only that the Priest should be maintained for ever and as that which hath been said that it was not imployed he answereth that out of the Book of 22. Assises 52. where 12. d. is reserved for three years and after 100. s. seisin of 12. d. is seisin of the 100. s. because it is issuing out of the freehold as the case is in Littleton in the Chapter of Atturnement Tenant for life the remainder in Fee the Lord shall not avow upon the remainder but shall have it by way of Escheat for all the estates together are holden of the Lord but if land be given to finde a Priest in D. and one is maintained in S. this is a mis-imployment but in our case I conceive that the Feoffees have power to dispose the land as to them seems best and therefore it is uncertain and then given to the King as it was in Dales case land was given to the intent that a Priest should be maintained as I. S. and I. D. thought fit so that he had not less then 8. marks yearly the King shall have all for the Feoffees may give all to the Priest if they please and in Turners case land was devised to a Priest and divers poor men all is given to the King by the superstitious imployment and as to the words if by the Law it may be they are idle for id possumus quod de Jure possumus and therefore 9. Ed. 6. an office was given to one if he were able to exercise it these words are idle for the Law saith that he shall not have it if he be not able to execute it 30. Ed. 3.8 a gift to two and to the longer liver of them that the Survivor shall have it are idle words 10. H. 7. a Condition that c. and here it the condition had been until an Act of Parliament prohibit it they are Idle words for if land be given to I. S. and his heirs upon condition that if he die without heirs c. this is a void condition and Repugnant to Law Lastly I hold the feofment good by way of Admittance and that the livery takes effect notwithstanding the Queens interest 4. H. 6.19 the Kings Tenant for life is disseised he shall have an Assise and yet there is no intrusion upon the King 17. H. 7.6 the Kings Lessee makes a feofment the King enters and so he held that the judgement should he given for the Defendant Snig Baron argued much to the same intent that Bromley had done and that the Schedule is so circumspect that nothing is given after the 99. years and that a spirit of Divination forwarned him of the alteration and he agreed the Feofment to be good with this difference where the King is in possession actually and where the Reversion is in the King and the book of 2 H. 4.9 that none shall enter upon the Kings Farmor is to be understood of the Kings under Tenants and not of his Lessees Tanfield chief Baron said that neither by the intent of the Statute nor of the parties the fee is given to the Queen but it is apparant that during the 99. years the parties intent is in suspence for fear of alteration and that they would see the difference of the times and leave the disposing thereof to his Feoffees and if they had sold the land and with the money maintained a Priest as many stocks of money have used to do without doubt it had been forfeited to the King and not the land and it would be in vain to speak of an Amortization if it be for a stipendary Priest only for this would not be necessary to have a foundation incorporated and to make an Amortization for such a Priest and therefore it seems to him that there is no determination of his will after the 99. years but that all is left to the determination and disposition of the feoffees who then should be and after the intent of the Statute which was penned by Hales Iustice of the Common Pleas. I observe four words given appointed limited and assigned and I do not conceive that our case is within the compass of any of them for as I said before it is in suspence until the end of 99. years and the parties who should have the interest are not known untill the time come nor the estate setled until that time but if it had been conveyed to superstitious uses after it had been given to the Queen notwithstanding the conveyance had not been sufficient if he who did convey had power in respect of the abilitie of his person and the estate in him and therefore Pasch 22. Eliz. the case was this Sir William Say before the Statute of 32. H. 8. of Wills was seised of lands in fee not devisable and before the said Statute he devised it to finde a Priest and notwithstanding that the devise was not good yet it was adjudged that the land was given to the Queen by 1. Ed. 6. but if it were a feme covert or an infant who are disabled in Law or a Tenant in tail who is disabled in respect of his estate there it had not been given to the Queeen but in all cases there ought to be an assignment or otherwise nothing is given and there is a difference where one grants land to the intent with the profits thereof to finde a Priest there all the land is given to the Queen and where he grants a rent for the maintenance of a Priest for there the King shall have but the Rent and he said that the Case cited 5. Ed. 6. Benlos is good Law and as to that which hath been said That because the power of the Feoffees is uncertain it should be given to the Queen true it is where the power is uncertain to bestow the profits but if their power be certain it is otherwise and as to the imployment there is none because there is no gift but the imployment of the particular estate is an imployment of the Remainder and a small thing will make an imployment James case was of the Greyhound in Fleetstreet which was given to finde a Priest and the White Horse for the maintenance of another and the Feoffees of the White-horse maintained the Priest of the
a place priviledged for Venison and not a place certain from whence a Venue may come and it was said that in the 16. Eliz. in Banco Regis in the Lord Padgets Case a Trespass was brought of 3. Acres of land in Beer-wood and the venire facias was awarded de vicineto de Beer-wood and the chief Baron Tanfield said that in this case the venire facias was not well awarded and so it was holden in the Kings Bench and therefore he would be advised in this Case and after at another day it was moved and then the chief Baron said that he had perused the Books touching the Case in question and that it appears by the 47. E. 3 fo 6. by Fuchden that a forrest is many times out of any Parish and therefore shall not be intended to be within any Parish and he said that the Defendant in this case ought to have pleaded that the forrest was within such a Parish and demanded judgement if he shall be answered without alledging it to be within a Parish and that otherwise judgement ought to be given for the Plantiff and so he said that it was now lately adjudged in the Kings Bench where a man was indicted for Hunting in a forrest and a venire facias was awarded de Foresta and good and he vouched also the 8th of H. 8. in Savages Case and the 7. of E. 3. and Baron Altham Accorded and he vouched also the Book of the 18. of E. 3. fo 36. where it is said expresly that if shall not be intended to be within a Parish except it be shewed in the pleading on the other side and he vouched also 27. H. 8. fo 12. and then all the Barons agreed that judgement shall be given for the Plantiff Airie and Alcock THe Case was argued again between Airie and Alcock concerning the misnaming of Corporations which was argued before as appeareth fo and Thomas Stephens the Princes Attorney argued that the lease is void by the reason of the misnosmer and he observed the Misnosmer to be principally in these two material things First where the foundation was by the name of the Hall or the Colledge of the Queen c. the presentation of the Parson and also the confirmation of the lease made by the name of the Queens Colledge c. omitting the word Scholers which should immediately precede the word Aulae Reginae which he held a material variance the second variance he observed to be thus that where the foundation was by the name of the Hall or Colledge of the Queen in Oxford the presentation and confirmation of the lease was by the name of Provost of Queens Colledge in the Vniversitie of Oxford so that the word Vniversitie was added which was not in the foundation and to prove that these variances were material for the avoiding of leases he cited the case often remembred in the argument before which conceived Merton Colledge in Oxford and the parties to this case were Fish and Boys which was in Trin. 30. Eliz. Banco R. Rot. 953. wherein the case was that the said Colledge was incorporated by the name of Warden and Scolers of the house or Colledge of Scholers of Merton in the Vniversitie of Oxford and that they made a lease by the name of the Warden and Scholers of the house or Colledge of Merton Colledge in Oxford so that the word Scholers which did immediately preceed the word Merton in the foundation is omitted in the lease as in the principal Case also where the word Vniversitie was added in their Corporation the same was omitted in the lease whereas on the other side this was not mentioned in Airies Case to be contained in the foundation but added in the lease and he said that for these variances in Merton Colledge Case the lease was holden to be void which he held to be all one with our case but he agreed that in divers cases variances in addition of surpluage shall not be hurtful in a lease as appears by 21. and 22. E. 4. and therefore though in the principal Case the word fellows was added in the lease which was not in the foundation he would not argue that this should be any variance to hurt the lease Hern Baron seemed that the verdict is not sufficient to move him to give judgement for the Plantiff for he said although it be admitted that the lease by reason of the variance is not good yet the verdict doth not sufficiently finde that Doctor Airie is a person who may take advantage of the invaliditie thereof for it appeared not of whose presentation Doctor Airie came to have the Parsonage for although that it should be admitted as it is said in Heckers Case 14. H. 8. that here might be Parson of his own presentment yet it is not found that he did so here and he said that in every quare Impedit it ought to be expressed what person made the presentation to the variance he thought the lease to be good notwithstanding that for he said that the word Scholers is not added in the foundation as a part of the name of a Corporation but only to express what kinde of Colledge this should be viz. to distinguish it from a Merchants Hall or Colledge and therefore though the word Scholers be put in yet we properly call it the Queens Colledge and not the Queen Scholers Colledge for it is not of necessitie that the Scholers of the said Colledge should he the Queens Scholers but that they are Scholers of the Queens Colledge and he vouched 2. H. 7. Fitz. Titles Grants and as to the case of Merton Colledge cited by Stephens he said that in that Case there was a main imperfection in the verdict which as he thought might move the said judgement to be given as it was and not the matter in Law for they did not finde that the lessor was warden of the Colledge at the time of the lease made also he vouched Cook lib. 6. Sir Moil Finches Case and he vouched Sir Peter Seawels Case where in a lease made by a Corporation that these words ex fundatione Regis E. 6. which were part of their foundation were omitted and yet the lease good and he cited also the case of the Bishop of Peter Bourough where the Corporation was by the name of Episcopi de Burgo Sancti Petri and a lease was made by the name of the Bishop of Peter Bourough and the lease good and that no difference in substance and if a Corporation were made by the name of Scholers and fellows and in a lease the word fellows is omitted yet it is good and therefore in the principal Case it seemeth that the omission of the word fellows is not material also he said that the addition of the word Vniversitie which is no part of the Corporation is not fatal to the lease for in the Lord Norths Case 36. 37. Eliz. the addition of the word Vniversitie or the omission thereof was holden
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
to commit a contempt by his refusing to return and so to save his lands by this conveyance in respect this countermand is a thing whereof he could not have divined to that I answer that the contempt subsequent is a sufficient proof of such precedent conjecture and that the conveyance was made fraudulently to prevent the prejudice which might accrew unto him by such contempt and this opinion will appear by the makers of the Statute of 13. Eliz. cap. 3. and 14. Eliz. cap. 6. made against fugitives and may well be collected upon the perusal of those Statutes and that the Iudges here ought to make such construction upon the subsequent Act he vouched the case of Doctor Ellis in Plowden and Saunders case in the matters of the Crown happening at Salop by which cases it appeareth that the Iudges proved the first intent by secondary Actions subsequent by way of discourse and therefore in Saunders case the partie having an express intent to poyson his wife delivered unto her a poysoned apple and the wife not knowing it to be poysoned gave it to her child who died thereof there the indictment against Saunders was that of malice forethought c. he intended to murder the child although this was not his first intention so in the other case there cited if a man intend only the death of A. and being fighting with him be a stranger interposeth himself to part the affray and he is slain this is wilful murder although here was no primer intent to kill B. but this is made an intention by legal collection and so in our case here is intentio Jegalis and not actualis and yet aswel unavoidable as any other also although it hath been objected that by the common Law none shall avoid a conveyance by reason of fraud except he who hath a former interest and the Statutes give no authoritie to any but to purchasors upon valuable consideration yet I say that the Statute of 13. Eliz. is to avoid all fraudulent conveyances against such as by any means may be hindred thereby yet the intention was not to defraud the partie who is thereby defrauded but some other and therefore although it was not to defraud the King in our case yet being fraudulent it is void against him by this Statute for he should be hindred thereby also the proviso in this Statute saveth such conveyances only which are upon good consideration and bona fide and that is such wherein simple and plain dealing are used but in this conveyance there was not any simple and plain dealing used for the Bargainees paid no money nor ought to take no profits of the land nor dispose of any estate therein and therefore fraud for Dolus est Machinatio cum aliud dissimulat aliud agit also the preamble of the Statute of the 27. Eliz. willeth that conveyances shall be void which are made to the use of him who maketh the conveyance or otherwise to defraud purchasors although that the body of the Act mentioneth such only which are to defraud purchasors and he vouched the Statute of the 28. Eliz. made against couveyances by resumption and he said that Twines case in Cook lib. 3. proveth our case effectually to be a void conveyance which cannot be answered but the Lord Treasurer said that there was fraud in both parties and he argued further and vouched Goodales case Cook lib. 5. to prove that a Deed shall not be deemed to be good except it be free from all fraud or clandestine agreement as it was there resolved that the payment for performance of a condition was not good as to strangers by reason of a precedent agreement and Burrels case Cook lib. 6. where it appeareth that no fraud shall be accounted bona fide as to strangers which is accompanied with trust c. also although here is not any fraud expresly found by the office yet he thought that the equity of the case appears plainly and that it shall be for the King and he vouched divers decrees in this Court to prove it as 43. Eliz. Howse was outlawed and took divers bonds of Carne in the names of others his friends viz. of Marlow and others in trust also took Statutes in their names in trust and it was decreed here that the King should have all vy reason of the fraud although it be not found by any office and in Hoards case it was decreed here that whereas the said Hoard betwixt the years of 25. and 32. had sent divers summes of money to Sheldon of Bealie and had taken divers obligations and other securities of him in others names before his conviction yet it was decreed to the King in this Court without any fraud found by office and in Sir Walter Raughlies case the same year decreed in this Court that whereas Sir Walter Raughlie being possessed of a tearm of 100. years of _____ he having a determination to purchase the reversion in fee of the same land conveyed his Tearm to his eldest son to the intent it should not be drowned and therefore about 40. Eliz. he purchased the fee and after in the year c. of our King that now is he committed Treason and was attainted and it was decreed here that the King should have the land discharged of this lease viz. in possession and although no fraud be found in the case but only it appeareth by circumstances of witnesses here examined that Sir Walter Raughley took the profits of the laud and held Courts in his own name until the attainder yet the said assignment was conceived to be in trust and therefore decreed to be void against the King as for fraud although he was convicted of Treason a long time after and so the Kings title subsequent to the said assignment and he vouched Walter de Chirtons case in 24. E. 3. Rot. 4. also as to Mr. Wardenfords case in 2. and 3. Eliz. Dyer 193. and the 9 and 10. of Eliz Dyer 267. but our case is different from them in two material circumstances which alter the law in the cases First we are in a Court of equitie by English Bill where the Iudges are only to adjudge upon the fraud and there they were in a Court of Law and the fraud was the matter of fact which ought to be expressy found by the Iury as appears by the books Secondly in that case the Iury found expressy that the conveyance was not by fraud to deceive the King of his wardship but only to deceive the Creditors c. but in-our case there is no such negative and therefore it differeth much see Dyer 267. and 268. as to the finding in the negative at another day in the same Term of Easter 7. Jac. the Barons decreed for the King and the Lord Treasurer agreed and he then demanded of Tanfield chief Baron if upon the return of Sir Robert Dudley he ought to have his lands again of right or if but upon special grace and the Lord chief
Executor prosecureth as Executor c. and for the Testator and there it ought to have a resemblance of the Regionall debt and although that the Statute appoints that the sayl shall be to the party as Altham Baron remembred yet here as the pleading purports the Bayl is to the aforesaid Executor which implies a legall dependency upon the first suit Then it hath been granted and the Law is so that if an Executor recover a debt which was due to the Testator and hath judgement for it now if you will have an action upon this judgement this ought to be in the detinet because it is a legall pursuance of a thing given to the Testator and not voluntary as a bond for further security or assurance and so here the Bayl being pursuant and compulsory but by 5. E. 3. if it be voluntary then it ought to be put in the Kings Bench to an Executor which is to be resembled to our case if an Executor bring debt upon a Bayl it ought to be as Executor and not as I. S. cleerely Altham the Bayl in the Kings Bench is upon the originall suit and so it is not here wherefore c. to which it was not answered but for that matter it was adjourned see H. 6. in the Kings Bench if a Feme c. take Husband and one of the Debtors of the Testator promise the husband if he will forbear his suite to pay the debt if the Husband will commence his action upon this promise it ought to be in the name of his Wife also because the action pursueth the Originall debt Williams contr it was agreed that if the Law were such that the Action ought to be in the detinet only then the bringing of it in the debet and detinet is such a Ieofaile as is not aided by the Statute of 18. Eliz. Nichols case and Chamberlains case Cook lib. 5. Tanfield chief Baron said in this case that it is proper that the Action ought to be brought in the detinet only but as our case is here is no issue joyned because here is not a negative and an affirmative for the declaration is that he oweth and detaineth and the Bar whereupon the issue is joyned is that he oweth not so where if his Action ought to be in the detinet then there is not any Nâ—gative and so no issue which was not denyed at another day they agreed that the action ought to have bin in the detinet only and therefore judgement was given that the Plaintif take nothing by his bill Sir Henry Browns case touching the Countesse of Pembrook SIR Henry Browns case wherein Hawkins and Moore were parties was this the Plaintif declared of an ejectment of the Mannor of Kiddington Dâ—le Sale and doth not mention them to be adjacent to any Ville and also of an 100. Acres of Land lying in the same Ville of S. and that upon not guilty pleaded the Iury at the Assises at Oxon were ready and then the Defendant pleaded that the Plaintif after the last continuance had entred into a Close called Well Close parcell of the Tenements mentioned with conclusion and this in the Declaration he is ready to aver and demanded judgement if it c. and this was before Yelveton Iudge of Nisi Prius there and now the Plea here was debated And 1. in this case it was upon conference with all the Iudges allowed that this plea may be pleaded at the Assises well enough and the Iudge there accepting of it had done well but as Tanfield chief Baron said the Iudges may allow it or not for if they perceive that it is Dilatory they may refuse it for it is in their discretion and therefore c. But by Dodderidge the Kings Serjeant the Iudge of Nisi prius is not Iudge thereof if it be well pleaded or not but is to give day to the Parties in Court where the Suit depends to maintain this Plea for he is only appointed Iudge to take the issué and upon such Plea he ought to discharge the Iury of the matter in issue and record the Plea and this is all his duty and by him in this case here is a Discontinuance for the parties have no day given upon the Roll as it ought to be for the day in bank in judgement of Law is all one with the day of Nisi prius and this is of course given to the Parties to hear Iudgement only concerning the matter in issue and here is other matter and therefore the Iudge c. Nota that in all Cases where a thing is pleaded triable before other Iudges the Iudge before whom it depents ought to give day to the Parties to be before the Iudges where the matter is tryable 12. E. 3. Voucher 115. and Title Day 25. and 34. and Assise pla 14. a Lord demands Cognizance of Pleas day ought to be given to the Franchises or otherwise it is a discontinuance of the Nisi prius for there ought to be a speciall day for the parties here to hear judgment in this Plea 10. H. 7. fo 26. so if at the Nisi prius a protection be cast the Iudges shall give day to the Parties in Bank to hear judgment if this protection shalve allowed or not for the Iudg of Nisi prius is no Iudg therof Also the Iudg in this case ought to have discharged the Iury it appears not here that he had done so therefore upon the whole matter it is a discontinuance but admitting that here was no discontinuance it seemeth that the plea was good and I agree that in all cases of Pleas issuable the plea ought to be expresly shewed or that which Tantamounts and here is shewed that which Tantamounts for when the Plantiffe in his Action had shewed the names of the Mannors and the Towns in which the acres lies then the Venue to try it for every parcel shall come de vicineto from all together and by consequence it is reasonable that the Venue for the trial of one particular to be parcel or not parcel shall come from all for if the plea in this case were that the Plantiff hath entred into the premises this had been good and then if it be good for the general it seemeth it should be good for every particular also it is clear that two may be parcel of all the three Mannors as in this case it is admitted to be parcel of all the premises by the demurrer if so c. Coventry the plea here is not good for the plea is to the writ and the conclusion ought to be pursuant to the premises of the plea or otherwise the plea is not good 36. H. 6. if a man plead to the writ and conclude to the Action it is evil 20. Eliz. Dyer 361. also the plea is not good because it is not shewed where the land lies wherein the entrie is alledged and therefore if the Plantiffe had denied it then is there no
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
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