of 99. years is agreed to be given Secondly if there be such an imployment of this land as the Statute requireth admitting the lease was not given Thirdly if the livery upon the Queens Lessee for years be good and I hold that the Fee is not given to the Queen Secondly the land is not imployed c. admitting that it was given Thirdly that the Feofment here is not good and as to the case at Bar the Feoffees may enter I doubt not of that because there is not any thing found but that it was imployed to the uses intended for 99. years Secondly if it were not imployed according to the condition after 1. Ed. 6. yet they cannot enter for themselves were parties to the Art which did prohibit it as 34. H. 8. Dyer 52. the Queen gives licence that Belmelt shall be transported notwithstanding any Statute made or to be made if after it be prohibited the licence is determined because the Patentee himself was a partie to such Statutes Secondly it is said in Addams and Lamberts case that a superstitious devise or other estate upon condition is within the Statute because the Patentee was partie thereunto Thirdly it is said in the said case that a superstitious devise or other estate upon condition is within the Statute because it is penal and compulsorie for the maintenance of a thing prohibited by the Law and also there it is said that there is a proviso towards the end of that Act that it shall not be Lawful by reason of any remainder or condition for any man to claim any lands c. for the not doing or finding of any such Priest as to the other point which was moved at Bar I hold that the use doth not arise upon the words subsequent and if they do not re-enter that then the land shall go to the use of the four Feoffees to the intent aforesaid is not a mis-ordering nor an imployment Secondly these words to the intent do not raise any use but only a confidence and trust reposed in the Feoffees Doctor and Student 94. for the first point therefore he held that there is no superstitious gift of the Fee-simple and if there were it is not imployed c. and therefore it is not given by the Statute of 1. Ed. 6. to the Queen and touching that we are to consider the Statute Indenture and the Schedule and there is not a word that after 99. years the land shall finde a Priest but the money and the land is not given but the money as in the Dean of Pauls case 22. Eliz. Dyer 368. if land be given to finde a Priest with part of the profits thereof those profits are only given to the King by this Statute and not the land but that belongs to the Dean and Chapter also the Schedule is if then it may be lawful and therefore if it were not then lawful the money is not given and it is like to the case where I make a lease for 21. years if I do allow of it before Michaelmas and before Michaelmas do not allow of it this is a void lease and so if I give land to the use of Westminster School if the Dean will enter into a Recognizance c. and if he will not enter into a Recognizance it is no gift like to the case 15 H. 7. a grant of Annuitie if such a thing be done c. secondly as to the imployment the lease is only found to be imployed and the imployment of the lease is no imployment of the Fee which was not given until the Term was expired and if the gift be not superstitious the imployment ought not to be superstitious and yet as it is said in Adams case there ought to be an imployment to intitle the Queen as the case there is if one gives the Mannor of D. and S. to superstitious uses the Queen shall have the lands out of the hands of the Feoffee and if land be given to finde a Priest in the Church of D. for 20 years and after to finde one in S. for 21. years and before the expiration of the first Term the Statute is made it seems the Queen shall have only the first Term because there is no imployment of the second Term within the Statute 5. Ed. 4.20.15 Ed. 3. Execu 63. I agree those cases for land or rent issue from a seisin 30. Ed. 3.12 in a quare impedit 5. Ed. 6. Benlowes a devise to 8. to the uses and intent that the Feoffees with the profits shall finde a Priest whilst the Law of this Realm will suffer it and if the Law will not suffer it then to the use of three of the poorest of the Parishes adjoyning by all the Iudges this is not within the Statute and as to the last point it seems that the Feofment is good and the interest of the Queen is no impediment which if it be not then there is no question as Dyer 20. Eliz. 363. Tenant in tail makes a feofment the servants of the Lessee for years being upon the land and livery is made and after the Lessee for years agrees saving his Term this is a discontinuance 14. Ed. 4.2 3. and 4. Ph. et M. Dyer 139. possession shall not be gained from the Queen but by matter of Record 4. Assises 5.21 Assises 2.8 H. 4.16.1 H. 7. no livery upon the Kings possession it may be devised by the heir or conveyed by bargain and sale or by fine from him and the Kings estate in reversion doth not priviledge the estate in possession as it is 23. Ed. 3.7 a disseisor conveys land to the Queen who grants for life and the disseisee shall have a writ of entrie against the Queens Lessee for life by the opinion of Thorp Cook lib. 4.55 a disseisor makes a lease for life the remainder to the King a recovery of the land against Tenant for life will defeat the Kings remainder 7. Rich. 2. aide of the King 61. Tenant in tail grants the land to the King with warranty and the King makes a lease for life if the issue recover in a Formedon the Kings estate is defeated and I was of Councel in the Court of wards in a case which was Pasch 43. Eliz. betwixt Chackston and Starkey for the Wardship of the heir of Clifford and it was this the Ward at full age tendred his livery and had six moneths to sue it and within the six moneths made a Feofment and after died before livery sued in this case the livery and seisin was void and it is all one as if no tender had been made for the Queens possession was priviledged the second point was that one being in Ward to the King had a reversion in Fee expectant upon an estate for life and before livery sued made a Feofment in Fee this makes a discontinuance of the reversion notwithstanding the Kings interest which he had in reversion for the Wardship which case is like to the case
without deed is not aided by a good assurance a surrender without deed is aided within the Statute or else the Statute should serve for little or nothing the Statute of confirmations of letters Patents hath the same words That the Statute of 43. Eliz. hath and upon 18. Eliz. it was resolved in 27. of Eliz. in Husseys case that if Tenant in tail be and the reversion is granted to Queen Eliz. this is good and aided by the Statute so if a man grant lands to the King but the Deed is not inrolled this also is aided by the Statute and where a grant shall be good at the Common Law by a Commonperson there the like grant made by the King is made good by the Statute and there was a case in the Dutchy Chamber Trin. 37. Eliz. between Cavendish and Bateman where the Queen did grant Turbary within the Mannor of Lady Meadows within the Countie of Darby unto Bateman for 21. years Bateman thereof makes a meadow and afterwards the Queen in consideration of the surrender of the first grant doth grant the same unto him for 40. years by the name of a meadow and although he made no surrender yet by the taking of the grant it was resolved that it was a good surrender because there it was but of a particular estate but otherwise if should be of fee for a fee cannot be surrendered by implication Dodderidge Serjeant of the King argued that the Defendant is guiltie of intrusion and he divided the case into two parts only the first whether there be a sufficient consideration at the Common Law to make the second Patent void the second point admitting that there is not a sufficient consideration by the rule of the Common Law whether the defect thereof be aided by the Statute of 43. Eliz. and he argued that the surrender which the Queen intended to be the consideration of the grant was an actual surrender alreadie perfected before the grant which doth plainly appear to be so as he took it by the word sursum redditionem and he said that he could not so have that word in the Preterperfect Tense as it would be supplied by an act of the Present Tente as is pretended viz. that the surrender is to be made by the acceptance of a new grant and he vouched 35. H. 6. also he thought her to intend an actual surrender for an other reason viz. for the words nobis sursum reddidit et restituit cancellandum the which cannot be performed without an actual surrender for otherwise there is no restoring and he vouched 18. Eliz. fo 437. 43. E. 3. fo 19. where it is observed that if a wife do not remain with an Adulterer with her own accord c. another reason the Queen did intend an actual surrender because of the words ea intentione which implie a surrender to have been actually precedent another reason was for that hereby the acceptance of the second Patent there is no surrender wrought of the former estate in the Law until after the acceptance of the second letters Patents and so the Queen deceived in the time and he vouched the case of Totnes in 40. Eliz. in the Kings Bench and Savages case in 9. H. 8. Carrels Rep. fo 195. and here it appeareth there was no surrender upon record precedent unto the second grant also it ought to have been found by a special verdict that the second letters Patents were granted at the suit of Seymor or otherwise the granting of them to him makes no surrender of his former letters Patents and then it follows that they are not surrendred yet And where it hath been objected that the Queen useth these words in the second letters Patents quas quidem litteras patentes praedictus Seymor modo habens et gaudens and therefore it must be intended she takes notice that the first letters Patents were not yet surrendred for then she would not say modo habens et gaudens he answered that this word modo signifieth the time passed or the time presently for to pass and the word habens cannot be taken in a legal sense no otherwise then the word being is taken in Dockwrais case 27. H. 8. fo 19. and so these words modo habens et gaudens signifie no more but that one he had an estate also the Queen is deceived in this word acceptamus for she cannot in the Law be said to accept of that which by the Law is not vested in her also he said that an actual surrender ought to be an actual giving up of so much as the Patentees received of her grant as it appears 14. H. 8.21 E. 3. Brook Prerogative 90.7 E. 6. Dyer Sir Maurice Barklies case 2. Eliz. 159. Sir Ralph Sadlers case that a duplicat is not sufficient if the letters Patents be surrendred and cancelled 3. Eliz. Dyer 195. and he said that the surrender which the Queen intended ought to pass an estate from the partie surrendring which is not so done here and where it hath been objected that the very delivery in the Court made of the letters Patents is a surrender of them by the opinion of Davers in 37. H. 6. fo 10. he said that this book was no Law as it may appear 12. H. 7. fo 12. Carrels Reports although in that book also Vavasour agreeth with Davers and where it hath been objected that here is an actual surrender made yet the intention of the Queen ought to be observed to make it an effectual surrender or otherwise though she hath no loss by the surrender that is made yet is it no effectual surrender as appears by 18. Eliz. Dyer 352. and so also was the case of the Isle of Man also Sir Henry Seymor did not in this case all that he might have done for the perfecting of this surrender for he ought to have seen this his surrender recorded as it appears by the book case of the 11. H. 4. where it appeareth that if I be bound to levie a fine I ought to sue forth a writ of covenant or dedimus potestatem and do all such other acts as it may make it a good and perfect fine in Law Secondly he took it that the Statute of 43. Eliz. did no whit aid this case for that makes no surrender to the Queen to be a good surrender but only an actual surrender which here is wanting and the Statute in no sort extendeth to a surrender in the Law for the surrender which this Statute intendeth to aid ought to be a surrender conveying and assuring c. and this surrender in the law conveyeth nothing but only extinguisheth and for that purpose he put this case if A. take a new lease of the Queen in 27. by indenture and this is of his own land this Statute of 43. Eliz. doth not make such a kind of conveyance in the Law by Estoppel good to vest the land in the Queen by this Estoppel which is a conveyance in the Law unto
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
Slade and Morleys case a case was put which proves it to be according Snig Baron agreed that Iudgement ought to be given for the Plantiff and by Tanfield if I take your goods and detain them until I have caused you to pay me 10. l. a general Action of Trespass lieth and not an Action upon the case and it is cited 7. H. 4. or 7. E. 4. to be accordingly but yet he agreed that judgement should be entred and so it was appointed to be done but then Chibborn for the Defendant said that here is a mistrial for if this trust be not material because it is not effectually shewed in the Declaration as you have argued then the Venue shall come only from the parish where the Wares were laid upon the land and not from the parish also where the appointment or trust was made by the Plantiff and therefore the trial also being from both parishes is a mistrial and the Court agreed that this is a mistrial upon that reason for now the appointment or Trust is but an inducement and therefore needs not to be shewed within what parish it was made and therefore a new Venire facias was granted and upon that a new trial and damages more then before and judgement was given accordingly Arden against Darcie NOta a good case of Attornament which was decreed in the time of Baron Manwood betwixt Arden and Darcie and it was this one Arden was seised in fee of divers lands in the County of c. and made a lease for years and after made a feofment with words of Grant of those lands to A. and B. to the use of the feoffor and his wife for their lives the remainder to Arden his son in tail and after the feoffor said to the Lessee that he had conveyed his land which the Lessee held in lease to the uses aforesaid and the Lessee said I like it well and after he paid his rent to the feoffor generally and it was decreed in the Exchequer Chamber that this is no Attornament because the Attornament ought to be to the feoffees and it appeareth not that the Lessee had notice of the names of the feoffees and therefore it cannot be said to amount to an Attornament but notwithstanding that Decree Arden the same to whom the remainder was limited had his Action depending in the Kings Bench to trie the point again as he said to me also this Term a point concerning the said Decree was in question upon another Bill exhibited in the Exchequer Chamber by Sir Edward Darcie against Arden and the case was as followeth Sir Edward Darcie exhibited his Bill here in the nature of a scire facias against Arden to shew cause wherefore the said Edward Darcie should not have execution of a Decree made in the time of Baron Manwood and the Defendant shewed that Darcie in his first suit supposed by his Bill that he had a grant of the land then and now in question from Queen Elizabeth rendring rent as it appears by the letters Patents and in facto there was no rent reserved upon the Patent and that the Defendant gave answer to the said Bill and admitted the Iurisdiction of the Court and after a Decree was made against the Defendant and the Defendant now having shewed this special matter demurred upon this Bill in respect that by his pretence the Court had not jurisdiction to hold plea in the first suit and here it was shewed that the first decree was made upon a matter in Law not properly examinable by English Bill and that in facto the Law was therein mistaken and therefore the Defendant prayed that the decree may be re-examined Tanfield chief Baron it is usual in the office of Pleas that if an action be brought as a debtor of our Lord the King this is good although that de facto no suggestion be made thereof if it be not shewed on the other side and therefore a writ of Error for this falsity shall not cause the judgement to be reversed as it was resolved in a case in which I was of Councel and so here as it seemeth Altham Baron here we are in equity wherein we are not tied to so strickt a course as if it were in the office of pleas Brock of the Inner Temple for the Defendant in a Court of equity it is in the discretion of the Court to deny Execution of a decree if good cause be shewed and in 18. E. 4. fo 1. judgement was given against a married wife by the name of a feme sole and reversed although she did not shew in the first suit that she was married and in 8. E. 4. judgement was given in the Kings Bench in a suit and by writ of error was reversed although the Defendant had admitted the Iurisdiction of the Court and the chief Baron and all the Court inclined that Arden may exhibit a Bill to reverse this Decree made against him and may shew what point in Law the Iudges mistook in the Decree or otherwise we should not do as Law and Iustice requireth for it is not expedient to be examined by way of Bar to this Bill in the nature of a scire facias and after Arden according to the Decree of the Court and their direction did exhibit his Bill in the nature of a writ of error Comprising how the first decree was erroneously made and prayed that the said decree might be reversed and in his Bill he shewed the point in Law which was decreed and that upon divers long conveyances appears to be thus and so it was agreed by Councel on both parties that Arden the father was seised of the Mannor of Cudworth in the County of c. and was also seised of the Mannor of Parkhal in the same County and of Blackclose c. which was parcel of the Mannor of Cudworth but lying neer unto Parkhal and alwayes used and occupied with it and reputed parcel thereof but in truth it was parcel of Cudworth and that Arden the father made a Conveyance of the Mannor of Parkhal and of all the lands thereunto belonging and reputed as parcel thereof or occupied with it as part or parcel thereof and of all other his lands in England except the Mannor of Cudworth to the use of Arden his son that now is Plantiffe here and if Blackclose will pass to the son by this conveyance or if by intendment it shall be excepted by the exception made it was the question here and was decreed in the time of Baron Manwood that it is excepted by the exception but all the Barons now thought it to be a strong case that Blackclose is not excepted by the exception of the Mannor of Cudworth and so the first decree was upon a mistake out of the Law and Tanfield chief Baron said that the point is no other but that I infeoffe you of Blackacre parcel of the Mannor of D. exceyt my Mannor of D. this doth not except the King
the book upon which I do principally relie is a point resolved in the principal case of Altonwood Cook lib. 1. fo 45. or 43. where the King recites that he had made a lease to A. and B. and that whereas they had surrendred the Patent of the said lease he in consideration of the said surrender makes a new lease to A. and B. here although that in fact the demise supposed in the recital to be made to A. and B. was void and so the King was deceived in the matter of recital yet in respect that he made the surrender of the Patent to be the sole consideration of his grant the falsitie of his recital is not material for the Iudges ought to take it to be a Motive to the King in his Grant which he did not express to be a Motive especially if he express another Motive and so in our case also it should be greatly mischievous to Hitchmore if this falsitie of the recital should prejudice him for by intendment it is not in his power to inform the King of this lease which was made by Burwel to Wilkinson because he is a stranger unto it and also the lease is not upon Record and therefore Hitchmore is not bound to take notice of it see temps H. 8. Brook Action upon the case c. and also the lease here made by Burwel to Wilkinson is to have continuance but for 8. years after the time of the commencement of the new lease made to Hitchmore and so the King then shall have it liable to his rent newly reserved and so in these circumstances our case differs in matter of prejudice from Barwicks case Cook lib. 5. for there the Kings Lessee made divers under Lessees for all his Term and after he himself by fraud accepted a new lease of all rendring rent which new lease was in consideration expresly of a surrender of the first demise and of all the estate c. and this lease was there void and so the diversitie appears also in 18. Eliz. Dyer 352. where the deceipt to the Queen was in point of express consideration and yet the Lord Dyer said that in that case the grant was not void and then much more in our case but admitting that the lease should not be good notwithstanding this false recital yet it hath been objected that the consideration is not performed according to the Kings intention for the words of the lease are know yee now aswel for a fine of 30 l. as for that that Hitchmore had assumed to repair the Mills at his costs and charges c. and that here the said Hitchmore had not assumed by Record so that the King may have any remedy against him for his not repairing and that the contract is no assurance it seems to me that the words for that that he assumed and the express Covenant was sufficient to satisfie the intent of the Consideration for the words are the words of the King and of the Patentee also in judgement of Law and therefore Pasch 7. Iac the Lord Evers and Stricklands case was adjudged the Lord Evers had made a lease by Patent in which these words were contained viz. and the aforesaid Lessee shall repair the aforesaid Tenement and that after the reversion was granted to the Lord Evers and it was adjudged that the Lord Evers should have a Covenant against the Lessee and this was in the Kings Bench Pasch 7. Iac. and so here for that he had assumed upon himself it is an accord sufficient to testifie his promise whereupon the King may have remedy to compel a reparation to be made and although that the words are not personally spoken by the Lessee yet he shall be bound to perform them as it is in 38. E. 3. fo 8. if one takes benefit by a lease which he never sealed unto yet he shall be bound to a nomine penae therein contained and besides here is an express Covenant and therefore c. Thirdly it hath been objected that the estate is conditional by these words he hath assumed to repaire which condition is not performed and so the lease made to Hitchmore void and 38. H. 6.34 and 35. hath been vouched in proofe which book I do agree for there the King had no other remedy to have his intent performed and also the words there are ad intentionem doth not make the estate conditional and he vouched Brook condition 96. and 43. E. 3.34 and Perkins 144. that if the Queen give land and that the Donee should not Amortize that makes not the estate conditional for the Amortizing and so if a man make a feofment to A. that he should pay 10. l. and that R. may enter for non-payment yet this maketh not a Condition the reason is because the first words leaves it to the libertie of the feoffee and the words after shall not be construed to make it conditional but I agreed the case put in Sir Thomas Wrothes case in Plowden Pro eo quod relaxabit that this makes a condition if it be not performed because it is of a thing futurely to be done or Executory and the King had no other remedy also in our case the circumstances manifest that the Kings intent was not to make a conditional estate upon this lease for he accepted an express Covenant for the requiring and he vouched the Lord Cromwels case in Cook lib. 2. fo 72. and he said that if here the lease had been made to Hitchmore in respect he had agreed to increase his rent and further had a clause of distress for the rent it shall not be intended that the King in such case purposed to make the lease conditional if the increase be not paid because he had provided himselfe a distress wherein although that the King had no more remedy then by the Law he should have had without these words yet the words manifest his intent to have no other remedy but the distresse see 7. E. 6. fo 79. and 3. E. 6. Dyer Non licebit alienare makes no condition in the case of the King without the words subpaena foris facturae and he vouched 4. Ma. Dyer 138. the Countesse of Surreyes case and also 18. Eliz. Dyer 348. which as he said was one Greens case where it was adjudged that if the King provide himself of another remedy the words by reason of any implications shall never be construed to be conditionall and so was the opinion of Manwood and Harper in Wellock and Hamonds case cited in Barrastons case Cook lib. 3. and 31 E. 1. Voucher 141. A man made a Feoffement with warranty against all people rendring rent and further willed that if the Feoffee could not enjoy the land that he should pay no rent here the words subsequent take away the force of a recovery in value which the warranty otherwise would have given and so here the King had appointed the remedy which he intended to have and therefore it shall not
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
Dyer the Lord Dacres surrendred a patent of an office granted to him before Sir Nicholas Hare Master of the Rolls but the surrender was not recorded nor the patent Cancelled nor a Vacat entred upon the inrolment this is void and shall not be aided now after the death of Sir Nicholas Hare per optimam opinionem in Kemps case Dyer 195. but it will be said that it appears not there that the surrender was made in Chancery and therefore differs from our case but see 19. Eliz. Dyer 355. which is direct in the point where an exchange of land was with E. 6. by deed acknowledged to be inrolled c. but not inrolled it cannot after nor be inrolled nor vest any interest in the Queen either as heir or Purchasor so hereby it appears that before inrolment an estate vests not in the King and he said that he had heard Popham late chief Iustice say that the opinion of the Iudges was that in this case nothing vests in the King until inrolment and for that there was a private Act made in 39. Eliz. to relieve this particular case so the Memorandum makes the record and not the delivery of the patent to be cancelled but the opinion of Davers in 37. H. 6.10 may be objected against me where he saith that if a man make a feofment to the King and deliver the deed in the Exchequer or at the Kings Coffers it is good without inrolment which by the Court is intended for goods and not to a feofment made to the King for this is only the opinion of Davers which I denie to be law and also all this may be admitted for law and yet prove nothing for when the partie surrenders to the King and delivers the deed to be inrolled so that he had done all which in him is to pass the land to the King then it may aptly be said in common speech that the right of the land is in the King because he of right ought to have it after inrolment although he had not the propertie of the land before the Deed be inrolled then if nothing vest in the Queen in the principal case before the patent made in 37. Eliz. the words subsequent in the patent will not help the matter viz. quam quidem sursum redditionem acceptamus per praesentes because the King had taken nothing before and the recital in the patent concludes not the Queen it hath been said that the not making of a Memorandum is the fault of the Clark and this shall not prejudice the partie in so great a mischief but I answer that the same mischief will insue where a man sells land by indenture and delivers it to the Clark to be inrolled and he inrols it not within 6. moneths nothing shall pass by the sale yet this is only the fáult of the Clark but in this case he may have his action upon the case against the Clark if so it be that he had paid all his fees the fame law in the principal case but admitting that yet great mischief will insue if it be so that the estate shall pass to the King before inrolment for then the estate and interest shall be tried by the Countrie and not by the record and then also in what place should a man search to finde the Kings estate and perhaps for want of knowledge thereof every grant of the King will be avoided and this would be a great mischief to the subjects but admitting that this should be a good surrender without a Memorandum or Vacat yet this is not shewed in this case for it appears not here that his intent was to surrender it for although he deliver up his Letters patents yet his estate remaines and then the consideration of the patent in 37. Eliz. being of a surrender of the first patent and also of a surrender of the estate if the estate be not surrendred as well as the patent the consideration is for that false and then the patent is void and to pâ—ove that the estate remains although that the patent be surrendred it appears by Fisher 12. H. 7.12 where Tenant in tail of the gift of the King loses his letters patents his heir is not at a mischief for he may have a Constat and this shall be good in evidence but he cannot plead it and this appears by the Preamble of the Statute of 13. Eliz. cap. 6. Dean and Chapter Lease land this shall be by Deed and in this case although that the lessee redeliver his deed it is no surrender of the estate but he shall not plead it without shewing a Deed of the assent of the Chapter but he shall give it in evidence and good because he had once a Dâ—ed thereof as it appears by 32. E. 3. Monstrance of Deeds and it appears by 32. H. 8. Patents Br. 97. that if the Kings Patentee lose his letters Patents he shall have a Constat and by 32. H. 8. surender Br. 51. and 35. H. 8. tail that if the King give in tail and the Donee surrender his Patent the tail thereby is not extinct so although letters Patents are necessary for pleading of the Kings Grant yet they are not requisite for the essence and continuance of the estate also it is found that the said Patents were restored to be cancelled per mandatum Domini Seymor it is not found what manner of authoritie the Lord S. gave nor found to whom the letters Patents were delivered nor at what time and peradventure they were delivered after the second Patent made and then is the second Patent false because then there was no surrender and this is one of the reasons put it Kemps case 3. Eliz. 195. The second point admitting that there is no actual surrender if notwithstanding that the Patent of 37. Eliz. be good and as to that I say if this Patent be good it is because the Queen had recited the particular estate and therefore is not to her damage or because the second Patent is a surrender in law of the first and the rather because it appears to be the intention of the Queen that the acceptance should be a surrender by these words quam quidem sursum redditionem acceptamus per praesentes and as to the first reason it seems to me that the Queen recites this as a particular estate determined and not as an estate continuing for by these words modo habens et gaudens it appears that the meaning of the Queen was that the Lord Seymor had not an estate continuing in the intent of the Queen at the time of the making of the second Patent but the Lord Chandos case in Coo. 6. fol. 55. seems to impugne me in this opinion where the King made a gift in tail and afterward by Patent reciting the former Grant and also that the Patentee had delivered up the Patent into the Chancerie to be cancelled by vertue whereof he thought himself to be seised in demeasne as of fee
did grant the lands unto the said Donee in fee in that case it was adjudged that the reversion did pass unto the Donee although the words of the reversion were not contained in the Patent although that the King in that case did think that he granted a possession but the reason of that was that although the Patent was not inrolled yet by law it should have been surrendred unto the King nevertheless because that was the collection of the King and not the suggestion of the partie that the King was seised by vertue c. therefore the collection being false shall not make the Patent void for all there that came of the suggestion of the partie is true but our case is otherwise for here the intention of the King was that he had the land in possession when he had made the grant and in truth he had but a reversion also if the Patent should be good great prejudice would or might ensue to the Queen thereby for put the case that the Queen had annexed a condition to this lease or that she had reserved a greater rent upon it this condition or increasing of the rent was the cause that the Queen had made this grant and that if the second grant should be good and the first not determined that the Grantee may claim his first estate and so defeat the Queen of her rent and of his condition to have benefit of either and this was the reason why the Patent was adjudged void in the case of Barwick Coo. lib. 5. fo 94. because some parcels were not surrendred to the Queen and therefore they were not subject to conditions or rent reserved upon the second Patent and for a second reason he argued that the acceptance of the second Patent is not a surrender in Law of the first Patent because the first Patent is meerly void as it appears in Fulmerston and Stewards case Plowden 107. that the reason why the taking of a second lease shall be a surrender of the former is because both the estates cannot be in one and the same Parson at one and the same time but this reason holds not in our case because no estate passeth by the second Patent in regard it is void and therefore this case may be resembled unto the last case in 23. Eliz. Dyer where a man taking a second benefice incompatible without dispensation doth not make the first benefice void by the Statute against Pluralities because he never was a lawful Parson of the second benefice in respect the never subscribed to the Articles according to 13. Eliz. cap. 12. and in Harries and Wings case the second Patent was void but a third reason was he thought that these words Quam quidem sursum redditionem acceptamus have not aided this Grant for the second Patent is made in consideration of a surrender made by the Patentee and therefore there ought to be a good surrender made by him or otherwise the consideration is false for the King in consideration of a surrender made doth grant lands where in facto there was no surrender as if the King grant black acre in consideration of a surrender of white acre which in facto was not done this grant is void also this appears by these words modo habens et gaudens sursum reddidit et restituit c. that the intention of the Queen was that the Lord Seymor had surrendred before and that he had no estate at this time of the making of the grant for these words modo habens et gaudens ought to be interpreted according to the rules of Grammar and for that in 9. H. 7.16 b. the Court consulted with Grammarians touching the exposition of Latine words and was by them directed and he said that this word modo had divers significations for this signifieth nuper interdum aliquando but most properly it signifieth nuper or interdum modo Paratus eâ—at Codrus erit subito qui modo Craesus erat modo ad hunc diem c. there it signifieth the present Tense or time but in the principal case if modo should signifie the present tense then it would not stand with this word sursum reddidit which is the preter tense but if here it be construed that modo signifieth the present tense this may well stand with sursum reddidit and the meaning of the Queen ought to be taken to be that the Queen was deceived and the Patent void although in the principal case here was a good surrender before the second patent yet until agreement nothing vests in the Queen and therefore if a man pleads a surrender made by the lessee to him in reversion he ought to plead an agreement to this surrender and 13. H. 4. that this is not in him before agreement and entrie and 32. E. 3. Bar 262. that until agreement nothing vests in him it was lately adjudged in the Common Pleas where an incumbent had resigned yet until the ordinary did agree unto it he remained an incumbent still and for that in asmuch as the Queen had not agreed before the second Patent made nothing vesteth in her till then and then she was deceived for she thought that she was in possession thereof at the time of the grant and therefore he concluded that he conceived the Patent was void Brock to the contrary and he divided the case into three points First whether here be an actual surrender found to be made in Law Secondly if the acceptance of the second lease be good or if the Queen reciting the estate and that he had surrendred which the Queen had accepted and that in consideration thereof she made the Grant whether this be made good although there be no actual surrender Thirdly admit that here he no actual surrender in facto whether this grant be aided by the Statute of 43. Eliz. cap. 1. but first before he would enter into his argument he said that he would wash away the Rubs cast in his way to make his way the smoother and first where it hath been said that if the Queen should take by contract or bargain without record that great mischief would insue for by that means the Queens title should be tried by the Countrie and in proof thereof he cited the Lord Latimers case in 12. H. 7.10 11. which he thought to be no authoritie for that purpose for there the opinion of the Court was delivered concerning the shewing forth of Letters Patents but not concerning matter of inrolment also the case was of an estate of inheritance to be conveyed from the King but the case now in question is but for an estate for life which may in law more easily be determined than an estate of inheritance conveyed also the case of 19. Eliz. Dyer 335. cited of the other part proves not this case for first the question was not there whether the King took any thing without inrolment but whether the Deed may be inrolled in the time of another King Secondly if