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
Heir except that judgement be given against the Ancestor and for that see 40. E. 3. Executors 74. and 41. Ass pl. 15. and 15. Eliz Dyer 322. And also if a Recusant had been convicted upon the Sat. of 23. Eliz. and dyed before judgement cleerely this forfeiture shall never be charged upon the Heir for the words are that a Recusant shall forfeit 20. l. a moneth and if he doe not pay it then appoints the recovery by Bill Plaint or Information and this ought to be alwaies in the life of the party then the Stat. of 28. Eliz. maketh not a new debt or Forfeiture but gives a penalty for the non-payment of that which was a debt within 23. Eliz. and that the intent of the Stat. of 28. Eli. was but such this is proved by the Title of the Act. viz. for the more speedy and due execution c. 2. It is proved by the first words of the Act for the avoiding of all delaies c. so that it appears that this Act is but as a penalty meerly Also he said that this Stat. of 28. Eliz. dispenceth with the conviction as to the penalty but doth not take away the Conviction also he said that conviction without Iudgement maketh not a Debt Also he who is convicted by proclamation and dieth is discharged Also he said that our Case hath been compared to a Debt upon an Obligation but this is not like for the Stat. stands not indefinite but hath reference to 23. for otherwise a Recusant may be doubly charged that is upon both the Statutes for there is no means to recover the Debt but by this Statute of 23. Eliz. See Sir Edward Walgraves case Dyer 231. Wentworth and others against Stanley WEntworth and his Wife and Rich and his Wife brought an Ejectione firmae against Stanley and shewed in their Declaration how one Edward Stanley was seised in Fee and infeoffed the Earl of Darby others to the use of himself for life the remainder to the use of the Plantiffs wife for 100. years and died and the Plantiffs entred and the Defendant ejected them c. and this Feofment was made in 40. Eliz. the Defendant saith that long before one Richard Stanley was sesed in Fee and gave it to the said Edward Stanley in tail and that he so seised made a Feefment to the uses as is alledged and died and the Plantiffs entred and the Defendant as issue of the Feoffor re-entred and so by his pretence his is remitted whereupon it was demurred and upon the opening this case the Barons were clear of opinion that the issue in tail is remitted and came paramount the lease and so the lease for years is gone also by the chief Baron and Baron Snig there needs no Traverse to be alledged by the Plantiffe because it was but of a fee gained in an instant by the feofment of a Tenant in tail and a fee-simple gained in an instant needeth not to be Traversed 5. H. 7. and 2. E. 4. wherefore the Court said that judgement ought to be given against the Plantiffs but yet at the desire of the some the Court gave day to the Councel on both parts to argue the case at which day came Heneag Finch for the Plantiffs and he argued to the matter in Law and therein he said that by the feofment of Tenant in tail the use to himself for life the remainder to his daughters for years without limiting the residue of the use that in this case the residue of the use shall be in the feoffes and not in the feoffor for by him there is a difference between a feofment by him who had a fee with limitation of an use as above and a feofment made by him who derives an estate out of a fee for when Tenant for life or Tenant in tail makes a feofment and limits an use for part of the estate as above there the residue of the issue shall be to the feoffee and he vouched Castle and Dods case adjudged in the Common Pleas 8. Iac. that if Tenant for life grant over his estate without limiting of an use it shall be to the use of the grantee more strong here in a tortious act as our case is but if Tenant in tail will levy a fine with limitation of uses as above there the residue of the use shall be to the use of the Conusor Secondly admit that the residue of the use in this case shall he to the feoffor yet he shall not be remitted to the use as it seemeth the words of the Statute of 27. H. 8. are that cestuy que use shall have like estate in the land as he had in the use and therefore it is clear that the first taker of the use shall not be remitted as it is resolved in Amy Townsends case in Plowden and although the words of the Statute mention not heirs or issues yet by the intent of the Statute they are in equal degree but the Books which are against this opinion are two viz. 33. H. 8. Dyer fo 51. but there it is not expresly said that the issue is remitted but 34. H. 8 Br. remitter 49. is expresly against me but the same year in Dyer fo 54. it is there made a quere and in Bevils case it is only said that the first taker of the use cannot be remitted but of my opinion was Baldwin and Shelley in 28. H. 8. Dyer 23 24. and in Sanages case and 29. H. 8. it is resolved that if a man hath land by Act of Parliament there shall be no remitter and so here wherefore c. and he said if Tenant in tail be the remainder in fee and Tenant in tail makes a feofment to the use of himself in tail the remainder to him in remainder in fee in this case he in the remainder in fee shall not be remitted for then the first taker should be remitted to the pleading it seemeth that the bar is not good and first the general demurrer here doth not confess the matter of fact no more then in Gawins case in 29. H. 8. fo 40. by Brown a demurrer upon account in an appeal is no confession of the fact and in 44. Eliz. in Crisp and Byrons case accordingly see Sir Henry Browns case before a good case to this purpose then as to the Bar it seems it is not sufficient for want of a Traverse of a seisin in fee alledged in the feoffor who was Edward Stanley for it is a rule that two affirmatives cannot be allowed in a Declaration and the Bar without Traverse of that which is mentioned in the Declaration is not good except there be cause of some impossibilitie or inconvenience but yet this is to be understood where the affirmatives are express and not by implication as in Moiles case if the Defendant in his Bar confess a fee determinable he needs not Traverse the fee alledged by the Plantiffe but in our case here is an allegation made by the
words of a fee to be in the feoffor and the Bar confesseth only as of a fee gained in an instant but I agree that if the Bar had been that the Feoffor was Tenant for years and made a Feofment this had been good without Traverse but when Tenant in tail makes a Feofment it shall not be intended that he gained a Fee because it may be he hath purchased the remainder and thereby had lawfully acquitted it as an addition to his estate and here the saying in the Deelaration that Edward Stanley was seised in Fee as a thing material and of necessitie and not superfluous as the pleading in a Declaration for debt upon an Obligation to say that the Obligor was of full age or as a Repetition of the writ which needs not be Traversed and that it appears in 15. Ed. 4. in some case a Surplusâ—ge ought to be Traversed and 7. Ed. 6. Title Formedon the Declaration as in our case ought to be special and 21. H. 7. if a man will maintain debt upon a lease he ought to shew how he was in titled to make the lease also although that in our case the lease for years is the effect of the suit yet I say that the seisin in Fee is the effect of the plea 27. H. 8.50 H. 7.14 in a replevin the Defendant avows as seised in Fee the Plantiffe sayes that he was seised for life and doth Traverse c. and 14. and 15. Eliz. was our very case Dyer 312. and there it is said that the sure way is to take a Traverse as it is also said in 11. Eliz. Dyer also where the Bar saith that one R. was seised in Fee and gave it to the Father of the Feoffor and the heirs of his body he ought to say that the land descended to the Feoffor as son and heir of the body c. also where the Plantiffe declareth of a lease for years made by force of a feofment made the 30. day of August 6. Iac. the Bar saith generally that the 30. day of August 6. Iac. the said Feoffor made a Feofment of the same land to the same persons c. but he doth not say that it is one and the same with the Feofment mentioned in the Declaration so he answereth not our title and for that cause not good and therefore he prayed Iudgement for the Plantiffe Jones of Lincolns Inne to the contrary it seemeth as to the first matter moved that in this case the resioue of the use shall result back to the Feoffor 34. Eliz. Balfores case if Tenant in tail make a Feofment to the use of himself for life without more by Popham the residue of the use shall be to the Feoffee for otherwise the estate for life would be drowned but otherwise it is when a remainder of an use is limited to another in Fee for this saves the drowning or confounding of the estate for life as to the point of remitter it seemeth that it is no other but that Tenant in tail makes a Feofment to the use of himself and his heirs and dies if the issue shall be remitted or not and as to that he said that the Statute of 27. H. 8. cap. 10. hath by express words a saving of all antient rights and therefore the antient right of the estate tail is saved and therefore the issue shall be thereunto remitted and so should the Tenant in tail himself if he had not been within the words of the Statute as it is resolved in Amy Townsends case in Plowden and the authorities of my part are 33. H. 8.54 in Dyer expresly with me and without any quere as to the point of remitter but there it is said that he ought to avoid the lease by entrie as in our ease it is pleaded and as to the pleading it seems there needs no Traverse First because it is matter in Law Secondly we have confessed a Fee in an instant as to the first reason the Declaration is generally of a seisin in Fee and not expresly of a Fee simple and therefore it is matter in Law 5. H. 7. and 11. H. 7.21 the Fee not Traversed 46 Ed. 3.24 in Dower the Defendant pleads a special tail made by one who was seised in Fee the other saith that the Dower had but an estate tail at the time of the gift without Traversing that he was seised in Fee 2. Ed. 4.11 that a seisin in Fee tail is sufficient to maintain an allegation of a seisin in Fee to the second reason it is not alledged expresly that he was seised in Fee but quod cum talis seisitus fuit c. and 34. H. 6.48 he needed not in his Declaration to say that he was seised in Fee Pasch 34. et 35. Eliz. Taylors case if the Plantiffe in a quare impedit alledgeth seisin in Fee and the Defendant confess the seisin by Vsurpation this is a sufficient confession of the seisin in Fee Fitzherbert Title Travers 154. a good case to this purpose and in Moils case cited before on the other side the Plantiffe doth not mention in his Declaration a seisin in Fee absolute and the Defendant saith that A. was seised and gave to the Plantiffe as long as A. had issue of his body he needs not Traverse the absolute Fee Pasch 33. Eliz. in the Common Pleas where there was a stronger case to the replication the Defendant said that the Countess of Devon was seised and leased for life the remainder to her self for life the other saith that the Countess was seised in tail and Traverseth that she was not seised in Fee it is there said that the Countesses estate in Fee need not to be Traversed and yet it was there agreed that in regard it was but matter of form it was aided by the Statute of Jeoffales for that was moved in arrest of judgement Tanfield chief Baron in the principal case the issue of the Feoffor is remitted without entrie notwithstanding the lease because it is not in possession but a lease in remainder and therefore the title of the Lessees is distrained before entrie by the Defendant and therefore the Defendant hath not answered the entrie upon the Lessees for you by your plea destroy the title to this Term which you have allowed them before they were ever in possession thereof and the Declaration is that they were possessed of a Term for years and that you ejected them and to this you give no answer upon the matter for clearly if Tenant in tail make a lease to commence at a day to come and dieth before the day this is meerly void by his death ad quod non fuit responsum see Plowden in Smith and Stapletons case for there it is made a quere and notwithstanding that Tanfield chief Baron with the assâ—nt of the whole Court pronounced that judgement should be entred against the Plantiffe immediately and so it was done Bents case IN a suit depending in this Court between
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
and these words restituit Cancellandas are no new words but usually used in surrenders of Patents as it appears by 9. E. 4.7 and in Altonwoods case Cook lib. 1. and there the not entring of a Vacat doth not hurt for it was the fault of the Clark and Sir Maurice Barkleys case in 2. Eliz. 176. cited before doth not question it that the entring of a Vacat should be material but the question here is because he did not deliver them up to be cancelled in the Lord Darcies case Dyer 195. the jury did think that there was no surrender at all but the Book-doth not marrant but that there may be a surrender without a Vacat and he said that at this time the matter is depending for Saint Saviours in Southwark if it be a good surrender without a Vacat entred and no opinion as yet given in that case and where it hath been objected that there is no actual surrender until that the Queen hath agreed and 8. and 21. H. 7. cited that where a man pleads a surrender he must also plead an agreement yet because the agreement cannot appear by any Record that the partie can procure to be made of it it shall be good although there be no record made of that agreement yet in this case the Queen doth agree as appears by the words in the second Patent Quam quidem sursum redditionem acceptamus c. Secondly admitting there is no actual surrender in this case yet if when the Queen did recite the particular estate and that she had accepted the surrender thereof and in consideration of it she maketh a grant whether this second Patent shall be good and it seemeth that it shall and therefore it appeareth by 37. H. 6.18 that the taking of a second lease shall be a surrender of the former and in Corbets case 11. Eliz. Dyer 208. 4. Mar. Dyer 140. although the first lease be by deed indented and the second but by word and in Ives case Cook lib. 5.11 acceptance of a future lease is a surrender of a lease in possession and to that purpose is 21. H. 7.14 H. 8.15.31 Assises placito 26. and other Books and in 3. Eliz. Dyer 200. the King granted a house for years and after did grant to the Patentee the custody of the house with a fee and the Patentee accepted the fee and it is there doubtted it that shall be a surrender of the Term and the matter was Compounded but he said that he heard that the opinion of the Iudges was that the acceptance of the custodie and fee was a surrender of the Term by that I do infer that there shall be a surrender by implication aswell where the King is partie as where a common person only first if a surrender be effectual it is sufficient although it be not formal because it worketh as much profit to the King and the surrender in this case was at the same instant that the Queen did Seal the letters Patents for the estate passeth from the Queen without delivery and it appears that the intention of the Queen was not to have any actual possession of that by these words modo habens et gaudens but it hath been objected in as much as this surrender was at an instant that it should be void because that in instants the best shall be taken for the King yet it seemeth to me that it is good as in the case of 49. E. 3.5 a. a man deviseth Burgage land holden of the King and dieth without heir this devise is not good against the King because the devise taketh not effect until the instant of the devisors death and at that instant also doth the title of the King begin by death without heir and he cited Plowden 108 109. in Fusmerstons case for the exposition of these words not now in being within the Statute of Monasteries and if in that case issue had been taken whether it had been a surrender or not it should have been found to be a surrender because it is a surrender in the law as it was in Thetfores case in the Common Pleas p. 28. Eliz. Rot. 122. in wast Baron and Feme Donees in tail make a lease for life the husband dieth and the wife disagreeth to the lease and the issue was if the husband and wife did lease and it was found that they did not lease because now by her disagreement it is become in law not the lease of the wife Cook lib. 3. Butler and Bakers case accordingly fo 27. 28. but if the King be to sustain any loss by the consideration if that were false then shall it make the Patent void as it is in 9. H. 6. where the King was deceived in the value so 18. Eliz. Dyer 352. where there was a loss in esse but it is contrary where there grows no loss to the King as 26. 28. H. 8. of a thing passed because the King is not to have benefit of it the Lord Chandos case is not answered on the other side for there the King did intend to have the actual possession where in facto he had not yet because that was only a recital and Collection in the matter in law it doth no hurt so in the principal case and so if the King grant a Mannor although he hath but a reversion of it yet it shall pass without the word reversion 7. Eliz. Dyer 233. and the Kings Patent also shall be so construed that one part may stand with another viz. that the Lord Seymor now having the estate c. doth restore unto us c. the which we do accept c. as in Sir John Molins case 40. Eliz. Cook 6. Lord measne and Tenant the Tenant was attainted of Treason and the King did grant the laud tenendum de nobis c. suis noftris et aliis cap. dominis feodi illius per servitia inde debita et de jure consueta He shall in that case hold of the mesne as the Tenant held before for if he should hold of the King the words subsequent would be void and for that cause such a construction shall be made that all may stand together now for the third point admit that the surrender is not good yet it is aided by the Statute of 43. Eliz. cap. 1. which aides all grants and surrenders c. to or from the Queen the clauses for conveyances to the Queen are with restraint but for the conveyances of the Queen there are certain exceptions our case is within that part of the Statute which relates unto the 25th year of her Raign and our case is within the words of the Statute viz. surrenders and surrenders within the Statute are such as are surrenders to a common intent and therefore where the partie hath done that in him lieth but some thing is to the perfection of a surrender that is aided by the Statute also by this word assurance in the Statute a purchase
man prescribe to be discharged of payment of Tithes by reason of payment of another kinde of Tithe that this is not good Marie Reps against Babham MArie Reps by her Gardian was Plantiff against Babham in an action of Trespas the Case was that a feofment was made to the use of husband and wife for their lives and after to the heirs of the body of the wife begotten by the husband and if this was an estate tail general in the wife or an estate in special tail to the husband it was demurred Richardson argued that it was a general estate taile in the wife and that the husband had but for life and he vouched 11. E. 3. Fitz. tit Formedon in proof thereof Henry Yelverton thought it was an estate tail in both and he said that the Case in the 11. E. 3. is not like to this Case for there the Prior cannot take but as Tenant in Common and he vouched of his part 17. E. 2. title where the inheritance is limited no more to the body of the one then of the other there is an estate tail in both out of which Littleton took his Case and Fitz. nat Brevium fol. 193. G. where he puts the very Case in effect 41. E. 3. fol. 24.3 E. 3. fo 90. Rips Case 21. E. 3. fo 41.4 E. 3. fo 145. and 15. Eliz. in the Common Pleas was that a guift was made to husband and wife and to the heirs of the bodie of the husband of the body of the wife begotten and this was holden an estate tail in both if the word husband followeth immediätely the word heir it is an estate tail in that person only but if the word with be interpreted it altereth but the word or interposed maketh no difference no more then if the word husband had immediately followed 19. H. 6.75 Pasch 4. Jac. in the Exchequer Richards against Williams IN an action of Trover and conversion betwixt Richards and Williams for two loads of Barley the Defendant saith that the Dean Arch-Deacon president and Chapter of Landaffe was seised of a Personage in fee and by the said name had leased unto the Defendant to which the Plantiff replied that the Arch-Deacon and Chapter of Landaffe were seised in fee and leased unto him without that that there was any Corporation as Dean Arch-Deacon president and Chapter whereupon the Defendant demurred George Crook argued that the Replication is good and he made two points First that here is a good inducment to a Traverse Secondly that there ought to be a Traverse in the Case to the first he said that if the Defendant intitle himself by one name and the Plantiff by another name here is a good inducement for a Traverse and he cited Croft and Howels Case in Plowden where the Cooks were incorporated by E. 4. by the name of Master and Governous and they made a lease of lands by the name of Master and Wardens and this was holden a void lease and he vouched to this purpose also 21. E. 4. fol. 56. where a Corporation was of Dean and Viccars and a lease was made by them by the name of Dean and Priests and 30. Eliz in the Kings Bench and Windgate Hals Case and Eaten Colledge Case in 3. 4. Ma. Dyer 150.2 that in this Case the Plantiff ought to take a Traverse and he cited 44. Assise pl. 9. 44. E. 3. fo 26. where one pleaded that the Prior of the Hospital of St. c. and the othersaid that the Prior of the house c. and an averment was made that it was known by the one name and by the other or otherwise the plea had not been good without a Traverse also he cited the Case of Raunce and the Dean and Chapter of Chichesters Case in the Kings Bench where Raunce took such an averment or otherwise he ought to have taken a Traverse and he cited the Lord Barleys Case in Plowden and 5. H. 7. and he said that the Plantiff by his Replication alledged other matter in fact then the Defendant did and therefore there ought to be a Traverse 12. E 4. also if a man brings an action by the name of Gardian and the other saith he is Prior this is not good without a Traverse that he is not Gardian 4. E. 4. fo 6.32 H. 6. fo 4.38 E. 3. fo 34. an accompt supposing the Defendant one of the company of M. and it is there said that the Defendant not being sued in the action as one of the company but this is only used for an addition therefore there ought to be no Traverse and after this argument Tanfield chief Baron said that the argument now made touched not the point in this Replication for the point is not if there needeth a Traverse in the cause but what thing is Traversable therein videlicet what is the principal matter alledged for the Defendant and therefore he put this Case Prior and Covent of D. claim an Annuity by prescription the Defendant saith that within time of memory they were incorporated by the name of c. in regard that it is within time of memory Quere what thing is Traversable here that is to say what thing is the principal matter and after at another day Walker to the contrary and first he said that it is not alledged in fact by the Defendant but by implication That there was any such corporation as Dean c. and that which is alledged but by implication ought never to be Traversed and he vouched Dyer 365. 27. H. 8.27 The alledging that the Dean c. is but matter of induement to the Plea in Bar and therefore is not Traversable for the lease supposed to be made by them is the matter of substance and he vouched a Case between Richarson and Sir George Heart 31. Eliz. to be where in an action against the Sheriff for suffering an other to escape who was in Execution at the Plantiffs suit and the Sheriff said that he never arrested him and he vouched also 10. H. 6. fo 13. thirdly he said that the Plantiff doth not Traverse in the same manner as is alledged by the Defendant and therefore the Traverse is not good and he vouched 27. H. 8. fo 26. where in Trespass the Defendant saith that I. S. is seised in fee c. the Plantiff saith that his father was seised in fee without that that he had any thing this is no good Traverse and Thompson thought it no good Traverse it is alledged in fact for the Defendant that such a Corporation made a lease therefore there was such a Corporation and he said that a man may Traverse by a Negative prayer or by a Negative pregnant 9. H. 7. 27. H. 6. where a Trespas was brought by I. and G. his wife the Defendant said there is no such G. his wife and this is good and so in 40. E. 3. fo 36. 37.11 H. 4. fo 10.45 E. 3. fo 6. in a quare
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
did grant the lands unto the said Donee in fee in that case it was adjudged that the reversion did pass unto the Donee although the words of the reversion were not contained in the Patent although that the King in that case did think that he granted a possession but the reason of that was that although the Patent was not inrolled yet by law it should have been surrendred unto the King nevertheless because that was the collection of the King and not the suggestion of the partie that the King was seised by vertue c. therefore the collection being false shall not make the Patent void for all there that came of the suggestion of the partie is true but our case is otherwise for here the intention of the King was that he had the land in possession when he had made the grant and in truth he had but a reversion also if the Patent should be good great prejudice would or might ensue to the Queen thereby for put the case that the Queen had annexed a condition to this lease or that she had reserved a greater rent upon it this condition or increasing of the rent was the cause that the Queen had made this grant and that if the second grant should be good and the first not determined that the Grantee may claim his first estate and so defeat the Queen of her rent and of his condition to have benefit of either and this was the reason why the Patent was adjudged void in the case of Barwick Coo. lib. 5. fo 94. because some parcels were not surrendred to the Queen and therefore they were not subject to conditions or rent reserved upon the second Patent and for a second reason he argued that the acceptance of the second Patent is not a surrender in Law of the first Patent because the first Patent is meerly void as it appears in Fulmerston and Stewards case Plowden 107. that the reason why the taking of a second lease shall be a surrender of the former is because both the estates cannot be in one and the same Parson at one and the same time but this reason holds not in our case because no estate passeth by the second Patent in regard it is void and therefore this case may be resembled unto the last case in 23. Eliz. Dyer where a man taking a second benefice incompatible without dispensation doth not make the first benefice void by the Statute against Pluralities because he never was a lawful Parson of the second benefice in respect the never subscribed to the Articles according to 13. Eliz. cap. 12. and in Harries and Wings case the second Patent was void but a third reason was he thought that these words Quam quidem sursum redditionem acceptamus have not aided this Grant for the second Patent is made in consideration of a surrender made by the Patentee and therefore there ought to be a good surrender made by him or otherwise the consideration is false for the King in consideration of a surrender made doth grant lands where in facto there was no surrender as if the King grant black acre in consideration of a surrender of white acre which in facto was not done this grant is void also this appears by these words modo habens et gaudens sursum reddidit et restituit c. that the intention of the Queen was that the Lord Seymor had surrendred before and that he had no estate at this time of the making of the grant for these words modo habens et gaudens ought to be interpreted according to the rules of Grammar and for that in 9. H. 7.16 b. the Court consulted with Grammarians touching the exposition of Latine words and was by them directed and he said that this word modo had divers significations for this signifieth nuper interdum aliquando but most properly it signifieth nuper or interdum modo Paratus eâ—at Codrus erit subito qui modo Craesus erat modo ad hunc diem c. there it signifieth the present Tense or time but in the principal case if modo should signifie the present tense then it would not stand with this word sursum reddidit which is the preter tense but if here it be construed that modo signifieth the present tense this may well stand with sursum reddidit and the meaning of the Queen ought to be taken to be that the Queen was deceived and the Patent void although in the principal case here was a good surrender before the second patent yet until agreement nothing vests in the Queen and therefore if a man pleads a surrender made by the lessee to him in reversion he ought to plead an agreement to this surrender and 13. H. 4. that this is not in him before agreement and entrie and 32. E. 3. Bar 262. that until agreement nothing vests in him it was lately adjudged in the Common Pleas where an incumbent had resigned yet until the ordinary did agree unto it he remained an incumbent still and for that in asmuch as the Queen had not agreed before the second Patent made nothing vesteth in her till then and then she was deceived for she thought that she was in possession thereof at the time of the grant and therefore he concluded that he conceived the Patent was void Brock to the contrary and he divided the case into three points First whether here be an actual surrender found to be made in Law Secondly if the acceptance of the second lease be good or if the Queen reciting the estate and that he had surrendred which the Queen had accepted and that in consideration thereof she made the Grant whether this be made good although there be no actual surrender Thirdly admit that here he no actual surrender in facto whether this grant be aided by the Statute of 43. Eliz. cap. 1. but first before he would enter into his argument he said that he would wash away the Rubs cast in his way to make his way the smoother and first where it hath been said that if the Queen should take by contract or bargain without record that great mischief would insue for by that means the Queens title should be tried by the Countrie and in proof thereof he cited the Lord Latimers case in 12. H. 7.10 11. which he thought to be no authoritie for that purpose for there the opinion of the Court was delivered concerning the shewing forth of Letters Patents but not concerning matter of inrolment also the case was of an estate of inheritance to be conveyed from the King but the case now in question is but for an estate for life which may in law more easily be determined than an estate of inheritance conveyed also the case of 19. Eliz. Dyer 335. cited of the other part proves not this case for first the question was not there whether the King took any thing without inrolment but whether the Deed may be inrolled in the time of another King Secondly if
this be confessed that the King there should take nothing without inrolment yet this is not like to our case for here this is but to merge a particular estate which differs much from the case of conveying of an inheritance also this is confessed if there had been a Memorandum made in the Margent then the surrender had been good and the want thereof is the laches of the Clark and then if it should not be a surrender before the Memorandum made the Clark should make the surrender and not the partie and as to the Book of 37. H. 6. it is not answered for to say that the King hath no right to the thing granted before inrolment but that he hath the propertie that cannot be and to that which hath been objected that there doth not appear any intention of the surrender because that although the Patents are surrendred the estate remained the Book of 32. E. 3. Monstrance of faith 178. proveth nothing for there it is said that a man may plead that a Dean and Chapter did not lease modo et forma without shewing any Deed for there this pleading is not to devest any thing out of c. and also it appears in the principal case that his intent was to surrender for the Iury do finde that the Letters Patents were restored by the command of the Lord Seymor to be cancelled and to that which hath been objected if the second Patent should be good that the Queen might lose her Rent or condition because the first lease hath his continuance to that I give answer that the first lease hath not his continuance and therefore no loss can grow to the Queen and to that which hath been objected that the Queen is deceived it appears by these words modo habens c. restituit c. that the intention of the Queen was that the Lord Seymor had surrendred his estate before and that he now had nothing because that the word modo being joyned with the word reddidit signifieth the time past but as to that it seems to me that although modo poetica licentia in the strict construction of Grammer may signifie the time past yet the signification thereof shall not be so taken in the letters Patents for there it shall be taken in common construction and not to the deceipt of the King and therefore in the Dean and Chapter of Bristols case 7. E. 6. Dyer the words are nuper in Tenura I. S. et modo in Tenura A. B. there nuper is taken for the time past but modo for the present time and in 11. H. 7. Rogerum Townesend modo militem is to be intended that he is now Knight and not that he was a Knight in time past and not now also it is so to be observed here that these words habens et gaudens are annexed to this word modo both which are in the present time and restituit comes afterwards and so modo is not annexed to restituit but unto habens et gaudens also although the word shall be referred unto restituit yet all may well stand together for restituit may be referred unto the time present as siquae fuerint in 35. H. 6.11 and to that which hath been objected that until the Queen agrees unto the surrender the estate is not in the Queen he thought that where Tenant for life surrenders before agreement he in the reversion is Tenant to the Praecipe although he shall not maintain a Trespass before entrie for by 21. H. 7.12 it appeareth that an estate for life may be determined aswel by word as by surrender so in 9. H. 7. where the Tenant dies without heir the freehold is immediately in the Lord but yet he shall not have an action of Trespas before entrie now as to the first point he conceived it to be an actual surrender although there be no Vacat made nor any Memorandum and to examine it he did relate what Acts might make a surrender and to that purpose he said that words being used which do prove an assent of the Tenant that he in reversion shall have an estate that shall be a surrender without express words of a surrender for a man may surrender by these words Remisit or resignavit for the words are not material if so there be substance as in 40. E. 3. placito 14. and 40. Assises pl. 16. if a lessee for life saith to his lessor that you shall enter and I will that you shall have this land this is a good surrender So in 28. H. 8. Dyer 33. if a Termor agree that he in the reversion shall make a feofment that is a surrender so in 8. Eliz. Dyer 251 252. lessee for life is content that he in the reversion shall have the land and his interest that is a surrender but in that case it appeared that a rent was reserved and an agreement that the lessee should have it againe if he survived the lessor and therefore appearing plainly that it was not intended to pass by way of surrender it was at the last adjudged no surrender so in 14. H. 8. the Grantee of a Rent did surrender the Deed and that held to be a good surrender of the Rent it is daubted in 2. Eliz. Dyer in Sir Maurice Barkleys case 156. if the surrender of the Patent of an Office unto a master of the Chancerie out of the Court be good without beliverie of the Patent to be cancelled but that Book proveth nothing but that a delivery of a Patent to be cancelled shall be a good surrender though the Patent be not cancelled in facto it hath been objected that it matters not what commandment the Lord Seymor did give nor in what Court the Patents were given up nor before whom but to that he said in asmuch as it is found that the Patents were given up by the commandment of the Loâ—d Seymor to be cancelled that being it was by his command it was his own surrender also it appears that the letters Patents were under the great Seal of England which alwayes issueth out of the Chancery and therefore it cannot be cancelled in any other Court and it shall be intended that they were given up to be cancelled there also this word restituit signifieth to restore and a man cannot restore any thing but where he had it and he had it out of the Chancery and therefore it shall not be otherwise intended but to be there restored so in Baggots Assise 9. E. 4.7 it is pleaded Quod restituit litteras Patentes Cancellandas and sheweth not to whom nor where and it was held to be very good but it is there pleaded Quod sursum reddidit Patentes Domini Regis and shewed in special to whom they were surrendred because it may be to any that hath power at the time of the surrender but a man cannot restore unto any but such a one who granted unto him and therefore needs not shew unto whom he did restore
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
and Hall the Dean and Canons of Windsor 22. E. 4. were incorporated by the name of Dean and Canons of the Kings free Chappel of St. George the Martyr within his Castle of Windsor adjudged the variance of the Kings and Queens free Chappel was material although the lease was made in the time of Philip and Marie And he vouched also 44. E. 3. fo 3. and 38. E. 3. fo 28. and he said that it seemed to him that this presentation by another name had gained an usurpation by the Provost in his natural capacitie also it seemeth that notwithstanding it is not found that Doctor Airie was presented instituted and inducced yet the special verdict is good enough to have judgement of his part but he agreed that if the truth of the Case had been discovered by the pleading then it ought to be precisely shewed that such exact finding is not necessary in a special verdict as in pleading and he vouched Allens Case 33. Eliz. Banco Regis where the Iury found that Tenant for life made a lease for years and found not the lessor living nor dead and yet in this Case he was intended living and he cited also Haydons Case Cook lib. 3. and Hunts Case 5. Ma. Dyer 153. and he voucht the Case of West against Munson in a writ of error in the Kings Bench wherein the first action being an Assise in the Common Pleas it was alledged for error that the Iury did not finde the Plantiff was disseised but only the Defendant disseised him and yet the judgement was affirmed Dodderidge the Kings Serjeant for the Defendant he agreed that the name of a Corporation is essential to be alwayes used in their grants for thereby they are distinguished from other Corporations but he conceived that in this Case here is a sufficient supplying of that part of the name which is omitted and he said that although the special verdict in one place mentions the name of Queens Colledge yet when they nominate the Corporation it cals them the Provost and Scholers of the Hall omitting the words Queens Colledge and then they finde that the Provost and Scholers by the name of c. and he said that in so much the Iury found precisely that the same Corporation made the demise it is not material by what name they made it and therefore he said that if a Iury finde that I. S. had made a feofment by the name of R. S. this is good enough as it was holden in Shotbolts Case 10. 11. Eliz. and so in 13. E. 2. fitz tit Bastardy pl. 25. a Iury found that two daughters were heirs and that the Defendant was born in espousals a non suit and so 20. Eliz Dyer 361. the Iury found that Executors received rents incident to the reversion and so assets in their hands and he cited also Dyer 372. to the second matter he thought that the omitting of the name precisely of Doctor Airie made the special verdict vitious and will inveigle the Iudges so that they cannot give Iudgement for it may be that Doctor Airie was presented by the same name of Corporation as the other presentee was for he said in truth the Case was so also the special verdict is vitious because they found not any time of the Presentation of Doctor Airie for peradventure he was presented by the said Colledge when he was Provost thereof and then his presentation is not good by 22 E. 4. and to this purpose he cited Heckers case in 12. H. 8. and one Fuljambes case in 6. E. 6. in Bendlows and then admitting that Doctor Airie should be intended an usurper if he shall avoid this lease it was also moved that if a Corporation by a false name present and admission institution and induction is made by a true name if this make a Plenartie and Boswel and Greens case Cook lib. 6. was cited See more after fol. The Maior of Lincolns Case Huddleston and Hills case IN an Attachment against the Maior of Lincoln and the Steward of the Court there being Colshil it was said that if a writ of error be directed to an inferiour Court they ought to execute it in all things although that their fee be not paid nor tendered to them and Mr. Man Secondarie to Roper said that the fee which is demanded by them ought to be indorsed upon the return of the writ of error so that the Iudges may judge of it if it be reasonable and divers presidents warrant that accordingly Huddleston and Hill against Bows an Elegit upon a judgement issued at the suit of Hill and after Hill died and his eldest son sued a scire facias upon the said judgement and holden that it lieth not If a man sue in the Ecclesiastical Court for Tithes of Headlands the Defendant may have a Prohibition but by some he ought to suggest that they are but small Headlands and that there is a custome of discharge in consideration that he paid Tithes in kinde of Meadows and in this case Williams said that if a man keep sheep in one Parish until Shearing time and then sell them into another Parish in this Case the Vendee shall pay the Tithe wool to the Parish where they were depastured in the greater part of the time of the growing of the wool See the Tithing Tavle the fifth question Skelton against the Lady Airie IN a Prohibition the Plantiff saith that was seised of the Mannor of Calthrop and also of the Rectory of Haughton Calthrop and that the land whereof the tithe is demanded is Coppihold and holden of the said Mannor and that this was also found by special verdict accordingly and that it had been always discharged of payment of Tithes and it was argued that the Prohibition did lie for it was adjudged Mich 34. 35. Eliz. that a perpetual union of the Parsonage and the land charged is a sufficient discharge of the Tithes and a prescription may be well enough to be discharged of the payment of Tithes as it appears by a Case put in the Arch-Bishop of Canterburies Case Cook lib. 2. George Crook of Counsel on the other side and he conceived that a perpetual unitie was no perpetual discharge and he said there was no judgement given in the Case cited before and he also said that the Iury in this Case found not a discharge of payment of Tithes but only a new usage to pay by unitie of possession and he cited 10. H. 7. or 6. where the manner of Tithing is set down also he cited the Bishop of Winchesters Case Cook lib. 2. and he cited the Prior of D. Case to be resolved in 40. Eliz. that a Coppiholder may prescribe to be discharged of Tithes by pleading that he was alwayes Tenant by Copie to a spiritual Corporation also he cited the Case of Pigot and Hern mentioned in Cook lib. 2. in the Bishop of Wintons Case fol. 45. and he said that it was adjudged in Sheddingtons Case that if a
but another person cannot be presented to this benefice during the continuance of the first institution see Cook lib. 4. in Digbies Case fol. 79. that the institution to a second benefice is a present avoydance of the first Saint Saviours in Southwark in an Information IN an Information of intrusion against A. and B. the Defendants claim and justifie by force of a lease made unto them by the Queen of the Rectory of Saint Saviours in Southwark in the year 33. Eliz. and the truth of the Case was that the Church-wardens of the Church of Saint Saviours and their successors were incorporated by letters Patents in which Patents it was contained that the Parishioners or the greater number of them every year should elect two Church-wardens and that the said Church-wardens and their successors are a Corporation capable to take purchase and sell and after the said Charter so made in regard of the great number of the Parishioners of the said Parish the Bishop of the Diocess made an order that the Parishioners should appoint a certain number of the said Parish to be called Vestrie men the which Vestrie men should have the election of the Church-wardens from time to time for and in the name of the whole Parish and after it was used that the said Vestrie men elected the Church-wardens accordingly for a long time and that A. and B. being so elected the Queen Anno 33. Eliz. made a lease to them for years by the name of A. and B. Church-wardens of the Parish of Saint Saviours c. and their successors rendring rent and this appearing to be the Case upon evidence to the jury the Barons moved two points First if the election made by the Vestrie men were a good election to make them a Corporation capable to purchase within the intent of the Kings Charter in so much that saith that they shall be elected by the greater number of the Parishioners and here but a small number that is the Vestrie elected them and as to that it seems by the Barons that in regard it was not given in evidence that others of the Parish to a great number did withstand or gain-say the said election or nomination it being made at a day usual and place certain and therefore all the Parishioners by intendment were knowing of it or might by intendment of Law have been present at the said election it being in an open place where every Parishioner might make resort and did not therefore it was held that this election was as good as if all the Parishioners had met and elected them for it were hard in Law if the election by these that are present should not be good when the residue are wilfully absent and therefore Tanfield chief Baron cited a Case where the King did grant that the Parishioners of Wallingford should be a corporation to bargain and sell and that the greater number of the Parishioners there did make leases and estates and there was an usage that at the time of meeting for the making of any such leases by them they did use to Ring a bell by the which notice was intended to be given of the assembly and that after such Bell rung 20. of the Parishioners then present did make a lease there being 100. others in the Parish not present and yet this was adjudged in the Court 32. Eliz. to be a good lease and he said that if there be a day and place by usage certain for their meeting in such case there needeth no warning and therefore in the principal case the election was good but as for any order made by the Bishop that had been of no force to this purpose Secondly it was moved that although this were not good to make them Church-wardens within the intent of the Kings Charter of Corporations yet that this lease made by the King should amount to make them a Corporation and to a lease unto them also that being by intendment for the benefit of the King inasmuch as a rent is reserved like as when the King makes a lease to the honest men of Islington rendring rent but unto this Tanfield the chief Baron said that he held that this lease should not make a corporation where the King conceived that there was no corporation before but that the King should rather be said to be deceived for he took a difference where there is a reputed Corporation in being and where there is not and thereupon the Barons directed the Iury to give a general verdict In this case it was agreed by the Barons that if the King make a lease for years to A. and after he makes a lease of the same land to A. for more years this second lease is meerly void and therefore the acceptance of it shall not cause a surrender of the other lease and they said that it was holden accordingly in Harris and Wings Case see Plowden Fulmerston and Stewards Case in which case the second lease was one good although it was void after by relation It was held for Law that if a man do make a feosment to A. to the use of B. for the life of C. and that if B. and C. die then the remainder over this is a Contingent remainder by Borastons Case in Cook lib. 3. and also by Colthirsts Case in Plowden It was also held that if a man doth in consideration that his son shall marry the daughter of B. covenant to stand seised to the use of his son for life and after to the use of other his sons in reversion or remainder these uses thus limited in remainder are fraudulent against a putchaser though the first be upon good consideration viz. for marriage also it was holden though the consideration of marriage be a good consideration yet if a power of revocation be annexed to it it is void as unto strangers By Standon and Bullocks Case cited in Twins Case Cook lib. 3. if a man reserved a power of revocation by assent of a stranger this is fraudulent but if there be a consideration to be paid before the revocation it is otherwise Mich. 4. Jac. in the Exchequer An Information against Bates Mich. 4. Jac. in the Exchequer AN Information was exhibited against Bates a Merchant of the levant and it was recited that the King by his letters Patents under the great Seal had commanded his Treasurer that he command the customers and receivers that they should ask and receive of every Merchant denizen who brings within any Port within his dominions any Currants five shillings a hundred for impost above two shillings and six pence which was the Poundage by the Statute of every hundred and it was alledged that Bates had notice thereof and that he had brought in Currants into the Port of London and refused to pay the said 5. s. in contempt of the King whereunto Bates came and said that he is an English Merchant and an venturer and a denizen and that he made a voyage to Venice
demurrer joyned George Crook for the King conceived that the lease made in the 26. Eliz. is good first he said that although the Queen cannot take an inheritance of freehold without matter of Record yet she may take Chattels upon a surmise made that they were granted unto her and therefore he vouched 21. H. 7. fo 19 that an Obligation may be granted to the King without inrolment of the grant and 40. Assise pl. 35. Brook tit suggestion pl. 5. it appears that the King shall have a Chattel by a demise by parol upon a suggestion made thereof in the Exchequer without a Record and in the 15. H. 7. fo 15. the Kings Baylie who is not of Record may be compelled to accompt upon a suggestion made Brooks suggestion pla 31. and in the 37. H. 6. fo 7. 18. if the King gives goods with his hands this is good although no record be made thereof because it is but a Chattel and by the same reason he inferred that he may also accept of Chattel without a Record but admitting that he cannot take without a Record it seemeth that here is a thing well enough Recorded to intitle the King after the return made by the Commissioners for the Commissioners are officers of Record to this purpose and they endorse the prayer of the partie to have it Recorded and this being after the return is a sufficient Record to intitle the King and he vouched the 2. H. 7. fo 10. where the servant of Iustice Catesby after the death of the Iudge made a return and this was good and the 8. H. 4. a Record certified by a Iudge after he was displaced and 43. Assises if a Coroner makes his Rols and dies before he certifie them they may be certified after his death and so here this acknowledgement and prayer being certified may at any time after be inrolled and although it seemeth by the Book in the 19. Eliz. Dyer fo 355. that a grant being made to the King and acknowledged before one of the Masters of the Chancery and inrolled in the time of another King maketh not the Grant good yet he said that it was adjudged for another grant made to the King by the Duke of Somerset and acknowledged before one of the Masters of Chancery and inrolled in the time of another King was good enough to perfect the grant and this was by a grant made by the Duke of Bozoms Inne in London and he said that it is not reasonable that the Law should adjudge otherwise for it may be that the Clark will not inroll it untill such a time viz. a moneth within which time the King may die should it now be reasonable that it should not be inrolled at all he said it was unreasonable and he said that it appeareth by the 37. H. 6. fo 10. that a deed delivered at the Kings Coffers is good enough to avoid his lease made in the 44. Eliz. for although that it be true that a grant of a reversion shall never operate to the destruction of a right of a third person yet it seemeth that an Act commenced may be confirmed well enough to the destruction of a mean interposed Act and it seemeth that the inrolment here is but a confirmation of a precedent lease and not a relation to make a thing which was not before and therefore to examine what thing an inrolment is and it seemed to him that it is no matter of Record as it appears 24. E. 3. and 29. H. 8. fo 15. and therefore it appears by Wymacks Case Cook L. 5. that a deed inrolled ought to be pleaded hic in Curia Prolat which proveth that the deed and not the inrolment thereof is the thing which passeth the estate and therefore he vouched the case in the 6. E. 6. Brook title faits if one joynt Tenant sells all his land in D. and after his companion dieth and then the deed is inrolled yet a moitie only shall pass and 41. Eliz. Cook Perimans Case lib. 5. if a man make a feofment of lands and inroll the Deed within the Mannor as by the custome it ought to be yet the inrolment shall pass nothing and therefore it is there said the inrolment may be good enough after the death of the parties so by the same reason aforesaid it is put in the same Case of Perimon and also in Butlers and Bakers Case Cook lib. 3. that if a man deliver a writing as an escrow to be his Deed upon certain conditions performed and after the Obligor and the Obligee die and then the Conditions are performed the Deed is good for there was traditio inchoata in the life of the parties and this being after consummated takes his effect by force of the first delivery and acknowledgement and therefore also he said that it was lately adjudged that if two men are mentioned to be bound by one Obligation and the one seals at one day and the other at another day this is as good as if it had been at one day and therefore he said that there is no doubt but if a lease be made to the King by a Bishop and after another lease is made also of the same land or if the Bishop die yet if after the first lease be inrolled this is good and therefore also he cited a case to be adjudged in Banco Regis 41. Eliz. between Collins and Harding that if a man be seised of freehold and Coppihold land and makes a lease of both for years with licence rendring rent and after he grants the reversion of the freehold and makes a surrender of the Coppihold to the use of the same person and an attornment is had for the freehold and the presentment of the surrender for the Coppihold is not made untill a year after yet he in reversion shall have an action of debt for all the rent for the presentment of the surrender is but a perfection of the surrender before made also he cited the case as I observed him to this effect in the 9th of Eliz. in the Abbot of Colchesters Case where he said that the Abbot of Colchester committed treason and after made a lease for years and then he surrendred to the King all his lands and after an office found the treason and it was holden the lease is good against the King who took by the surrender and not by the treason committed before but as Walter said the case was adjudged that the King should avoid the lease for now he is in by the treason paramount the surrender Phillips against Evans IN an Ejectione firmae brought up three acres in the forrest of Kevington in the Countie c. the Defendant pleaded not guiltie and the Venire facias was awarded de vicineto of the forrest and the Defendant moved in arrest of judgement because the Venire facias de vicineto of the forrest was not good for as Stephens for the Defendant said that a forrest and the name thereof is but
of no force to avoid the lease Altham Baron Contra for the matter in Law but for the insufficiency of the verdict he thought that there ought to be a new venire facias for no judgement may be given for any partie for the insufficiency of the verdict for it is not found that Doctor Airie was presented And therefore he cannot have an action for it cannot be intended that his presentation was by a better name then the other presentation was and he cited the 11. H. 7. fo 8. and 17. E. 3 title quare impedit he who will avoid a presentation ought to intitle himself Secondly it is not found here that the Church is void sufficiently he said that if a Provost present himself this is void meerly and he cited Heckers Case it is not found here that Doctor Airie entred post inductionem for it is said that he entred ante praedictum tempus quo c. but not that he entred after induction and therefore it may be he entred before and then it is not good but for the matter of Misnosmer it seemeth that this avoids the lease contrary to Baron Herns opinion wherefore the chief Baron Tanfield advised the parties to agree to have the true case rightfully found by a new special verdict for he said to Doctor Airie that no judgement can be given for him what opinion soever himself and Baron Snig should hold the which they would not deliver for Snig Baron said that by 40. Assise that if a man be indebted to the King and deviseth all his goods to A. and the Executor assenteth and after this debt is demanded the Legatee in this Case shall be charged for this debt and so was it ordered by him and Tanfield as reasonable and equal but Hern and Altham contrary for it was the folly of the Executor to assent to the Legacie and they said that it was so adjudged and resolved in Sir William Fitzwilliams Case in the Exchequer Chamber by an English Bill Upon a motion made by Walter it was shewed by him out of a Record in the Tower that in the 31. E. 1. a Statute was made to discharge Merchants strangers from the payment of Prisage of Wine and allowed by the Court that no Merchant shall be chargable for the prisage of Wines see more of this Case in the Tit. of Doublin in Ireland An Information against Sir Edward Dimock THe Case of the Information against Sir Edward Dimock which was the fast Term was now argued again by Thomas Crew for the King but his argument I have not written Walter for the Defendant said that the Commission for taking of the acknowledgement of the lease was not returned in the life of the Queen nor the case was not put in this case in the Queens life time as it was in divers of the cales cited of the other side and therefore it differs from them in this case he observed foure points First if this lease should be good if it were never inrolled Secondly admitting that it cannot if here be such an inrolment as is requisite Thirdly admitting that the fease is good without inrolment or with this inrolment then if this can avoid the lease made in the Interim Fourthly if no lease be good until inrolment then if the confirmation being made before the inrolment can be a good confirmation And as to the first he conceived that the Cases put of personal Chattels vested in the King without Record are good Law but here it is of a real Chattel and he said that there are three reasons to prove that personal Chattels are in the King without Record First they are in judgement of Law trivyal Secondly they are perishing and of no continuance Thirdly the Records would be infinite if they should be of Record but there are no such reasons to prove that real Chattels should not be of Record for in the judgement of Law they are of greater value and are also more permanent and therefore Thrope saith in the 18. E. 3. that it had been adjudged that Livery ought to be made upon a lease for 100. years also lessee for years shall have aid but lessee at will shall not also it appears by Cook lib. 4. in Sir Andrew Corbets Case that a Gardian shall not avoid a lease for years also the Statutes regard leases for years and it was holden in Gravenors Case in the 23. Eliz. in the Court of Wards that a woman shall forfeit her joynture for making of a lease for 40. years by acceptance of a fine and reservation of a rent also lessee for years may falsifie a recovery also it is agreed of the other part that the King cannot take an use without Record and 6. E. 6. Dyer Bourchers Case the King cannot take an use without record also he said that in every case where a Deed or Record is requisite for a freehold the same conveyance is also requisite for a lease for years and therefore if a freehold be conveyed to a body politick it ought to be by Deed the same Law if a lease for years be conveyed to them and so if a lease for years be made of a hundred or rent this ought to be by Deed by 15. H. 6. fo 38. also in Bayes and Norwoods Case 41. Eliz. it was adjudged that a lease for years cannot be made to a corporation without Deed 2. E. 6. Brook Tit. Recognizance 19. a man cannot make a surrender to the King without Record the second point he said that the inrolment being made after the death of the Bishop Lessor or of the Queen Lessee is no sufficient matter of record for in judgement of Law nothing shall pass out of the Lessor until the inrolment and therefore the inrolment is the thing which maketh the estate and not only which perfecteth it and in all cases as appears in Say and Fullers Case the thing which maketh the estate or which perfecteth it ought to be in the life of the Lessor and therefore if a reversion be granted attornament ought to be made in the life of the grantor 40. Assises pla 19. 16. Assises pla 15. and Cook lib. 2. in Tookers Case and to prove further that the thing which ought to perfect the estate ought to be in the life of the grantor or feoffor he vouched 31. E. 3. tit abbe 10. and 41. E. 3. and temps H. 8. tit feofments if a feoffe enter not by force of a livery within the View this is not good and if a Bishop make a lease and the Chapter do not confirm it until after his death it is not good by 31. E. 3. tit Abbe 10. also here to prove that in respect of the Queen Lessee died before inrolment that the lease is not good for this purpose he vouched 24. E. 3. and the 11. E. 4. and the 7. H. 4. and 21. E. 4. that Chattels granted to the King shall go to the successor and not to the Executor and
because nothing vested in the Queen nothing can vest in the King as successor for a thing cannot be vested in one as heir or successor which was never vested in the Ancestor and he vouched Bullocks case in 10. Eliz. Dyer 21. Ed. 4. of election also it cannot vest in the King Primarily because he was never partie to the Iudenture of lease and he cited a case to be adjudged accordingly betwixt Founds and 29. Eliz. 11. H. 7. that he who is not partie to the Indenture shall not be primarily bound nor shall primarily take by the same Indenture and it is inconvenient that this should be a good inrolment and where it was said of the other part that a bargain and sale is good enough although it be not inrolled in the life of the parties so that it be inrolled within 6. moneths to that he well agreed for by the bargain and sale an use passeth at the Common Law without help of the Statute and this without inrolment and the Statute of inrolments restraineth it not but that it may pass well enough at this day and so the Statute perfects it so that it be within 6. moneths indifferently and therefore it is good notwithstanding the death of the parties and he concluded with the Book of the 19. Eliz. Dyer fol. and wheras it was said to be resolved contrary in an authoritie not printed he said that he believed the printed Book and vouched also the case cited before in Butlers and Bakers Case Cook lib. 3. to the third point it seemed to him that although the inrolment be good yet that should not avoid the estate by relation for a relation is not good to avoid mean conveyances without an antient right as if the Kings Villein purchase lands the King now hath right and therefore an office found after shall relate to avoid all mean conveyances and he said that relations are not so certain wherefore a man may make a ground for every case hath his particular reason and therefore to some purposes an attornament ought to relate but to other purposes it ought not to relate and therefore an attornament cannot relate to intitle a grantee to rents due between the grant and the attornament and so in this case if the inrolment had been in the life of the Bishop and of the Queen yet it could not have given to her the mean profits between the grant and the inrolment and he vouched a case in Butlers and Bakers case and the 11. H. 7. that a relation shall never be prejudicial to a stranger for his estate lawfully executed and therefore if a feofment be made to a husband and wife and to a third person and after the husband and wife are divorced for a precontract yet they shall take but a Moitie as if they were married also it is a rule that an estate vested cannnot be made Tortious by relation see Butlers and Bakers Case and he vouched a case to be adjudged betwixt Wind gate and Hall in the Kings Bench Mich. 31. 32. Eliz. that if a Statute be acknowledged to a Common person and another Statute to the King by the same Conusor and after the Statute acknowledged to the common person is extended and the Conusee in possession and also the King sues execution of his Statute he shall not avoid the estate lawfully executed in the first Conusee as it was there holden but the Barons said una voce that if such a case should come in question before them they would hold the contrary for the King and for the fourth point viz. if the confirmation were good being made before inrolment of the lease and so upon the matter before any lease in being to which the Counsel of the one part nor of the other were provided to speak Walter said that the confirmation was not good for Littleton saith that a thing or estate which is not in being cannot be confirmed and Tanfield chief Baron said and others also that this was the principal point of the case and the great doubt is of the other part viz. that this is not good and therefore advised them to argue it at another day and Walter said that the confirmation is not good in regard it is not of record nor inrolled and he vouched the 26. of E. 3. fo 20. that the King cannot take notice of any thing without record the next Term upon the first Tuesday it was appointed to be argued again and Doddridge the Kings Serjeant observed foure points First if any inrolment be necessary in the case Secondly admitting that the inrolment be requisite if here be a good inrolment being made after the Kings death Thirdly if the confirmation of the Dean and Chapter be of necessitie to be inrolled Fourthly admit that the confirmation need not to be inrolled and that the lease ought to be inrolled then if this confirmation be good because it was before the inrolment of the lease as to the first he conceived that aswel a Chattel real as a thing personal may vest in the King without Record for it should be inconvenient that Chattels should be inrolled First for the infinitness Secondly for the small value of them in the judgement of Law and he vouched 40. Assises pla 35. of a Legacy devised to the King and 37. H. 6. fo 10. if a Chattel be given to the King there needeth no record and the 28. E. 3. fo 23. the King brings a quare impedit upon a grant of the next presentation without record and yet it was good 21. H. 7. fo 19. an obligation may be granted to the King without record 35. H. 8. Brook prerogative and 33. H. 6. the Baily shall have aid of the King and he vouched also 2. E. 6. Brook prerogative and 35. H. 6. fo 3. Fitz. villinage and Brook prerogative and the 21. H. 7. fo 8. if a man possest of a Term be outlawed this Term is in the King by outlawry without Record to the second point he thought that the inrolment was good after the Queens death for the inrolment ought to relate as it appears by 1. H. 7. fo 28. and this relation disaffirmeth the mean estate and gives also the mean profits and as to the point of relation he vouched Nichols Case Plowden where the entrie of the heir once lawful was made unlawful by relation and he vouched also 14. H. 8. fo 18. in the end of Wheelers Case and by the 4. H. 7. fo 10. a man seised of land is attainted of Treason the King grants this land to A. the person attainted commits a Trespass and is restored by Parliament the Patentee shall never have an action of Trespass because this restitution takes away the cause of action and to prove that the inrolment may be well enough after the Queens death he said that the said case put to be resolved in the 19th of Eliz. Dyer fo 355. concerning the Duke of Somerset was after adjudged contrary to
the said resolution and he said that the case concerning parcel of the land contained in S. the Deed come in question in Parliament in the 43. Eliz. and it was then commanded that the Deed should be inrolled and also he compared it to a case put in Shelleys Case that the heir shall have land as by discent from his father although that the conveyance be not inrolled in the life of the father also he said that the Queen dieth not as to her body politick to the third point he said that the confirmation need not to be inrolled for it passeth nothing and is but a bare assent and therefore differeth from the case of Patron and Ordinary and of a disseissee for the disseisee hath right to grant end the Patron and Ordinary have interest in R. but Bishops are seised in their own right and therefore their lease wants the approbation only of the Dean and Chapter and he vouched Cook lib. 3. the Dean and Chapter of Norwiches Case and the writ of Sine Assensu Capituli in the Register proveth it for the tit confirmation pl. 30. observes and Littleton in the end of his chap. of discontinuance saith that a parson may charge the Gleab by the assent of the Patron and Ordinary and the opinion of Brook in the case of the 33. of H. 8. tit confirmation pl. 30. agreeth to this opinion and so are some opinions in the 7. H 4. fo 15. 16. and he said that this point was adjudged accordingly in the first of Ma. but he had not the record thereof and therefore he would not insist upon it and he vouched 1. and 2. of Ma. Dyer fo 106. and Cook lib 6. fo 15. Hodges Case that the acceptance of the Patron is good enough to make a confirmation to the fourth point he said that the confirmation was good notwithstanding it be before the inrolment of the lease for the lease shall stay his operation until all the Ceremonies be used for the perfection of the estate and he vouched Littleton fo 122. and 6. E. 6. Dyer fo 69. where a parson made a lease to commence after his death the Patron and Ordinary in the life of the parson confirmed it and this is good and he vouched also Anne Maiowes Case Cook lib. 1. where the father confirmed the sons grant when he had but a possibilitie and yet good and he vouched Dyer 2. 3. Eliz. fo 194. where a grant was incertain and the inception was before the confirmation after makes it good and therefore he said if disseissor and disseissee bargain land although it be but a confirmation of the disseisee which may be well enough without inrolment of the Deed by a bare delivery yet this shall hinder the operation until the inrolment of the Deed which should pass the estate from the disseisor and by Cook lib. 5. Fitz. Case it appeareth that one part of the assurance shall stay his operation until another part hath his perfection and therefore he concluded that here the confirmation in judgement of Law should stay his operation until the lease be inrolled which passed the estate see the argument of Serjeant Nichols to the contrary and also the argument of Thomas Crew in Easter Term and Trin. 7. Jac. Pasch 7. Jac. in the Exchequer Catesbies Case Pasch 7. Jac. in the Exchequer TAnfield chief Baron said that in the year 31. Eliz it was adjudged in Goar and Peers Case if Tenant for life infeoffe A. and his heirs to the use of the feoffee and his heirs during the life of the feoffor that this is a forfeiture because these words during the life of the feoffor shall be but to the use limited and he put the case which Serjeant Nichols put at the Bar of the Lady Catesby which was that a man suffered a recovery to the use of William Catesby and Anne his wife and of the longer liver of them and of the Executors of William for forty years if one Elizabeth Catesby should so long live William Catesby dies and the reversion came to the King by forfeiture and he pretended that Elizabeth Catesby being dead the estate is also determined in regard that these words if Elizabeth shall so long live refer to all the estate but Curia avisari vult It was said by the chief Baron that if a man plead a deed in writing and the other partie do not pray Oyer the same Term he shall not have Oyer in another Term in the Common Pleas but in the Kings Bench Oyer shall be granted in another Term. It was found by office that Elizabeth Bowes was convicted of Recusancy in 35. Eliz. and that a lease for years was made unto her in the year 36. Eliz. in trust and that she had conveyed this lease over according to the trust and a question was demanded if the King shall have this term or not for her Recusancy and it seemed that he shall because she is not capable nor lyable of any trust and therefore the conveyance made by the Recusant was as if it had been without any compulsion by reason of the trust If a Coppiholder of the Kings Mannor pretendeth prescription for a Modus decimandi against the Parson the right of Tithes shall be tried in the Exchequer and a prohibition was granted to the Ecclesiastical Court in this Case Owen Ratliff was lessee for years of the King rendring rent and he assigned his Term to Sir Thomas Chichley in trust for payment of the debts of the said Owen Ratliff and after the Debts were paid Chichley resigned it but in the interim between the assignment and the resignment divers rents incurred to the King and the Barons agreed that these arretages in Law may be levied upon the land of Chichley notwithstanding the trust but because the Court was informed that the Executors of Ratliff had assets and continued farmer of the farm at that time they compelled him to pay it and being present in Court they imprisoned him untill payment made and allowed him his remedy by English Bill against Chichley and that by the agreement Chichley was to have paid the rents to the King The Earl of Cumberlands Case IT was found by diem clausit extremum after the death of G. Eearl of Cumberland that King E. 2. gave to the Lord Clifford inter alia the Mannor of Skipton in Craven to him and to the heirs of his body and found further the discent in a direct line until the time of H. 6. and that the first Donee and all others to whom it descended were seised prout lex postulat without determining any estate in certain in the Donee and they found that H. 6. by sufficient conveyance concessit Revertionem nec non manerium de Skipton in Craven to Thomas Lord Clifford to whom the estate given by E. 2. was descended and his heirs by force whereof the said Thomas was seised prout lex postulat and found the discent to the
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
and therefore he vouched a case between Scockwood and Sear where a man devised part of his land to his wife for life and another part of his land until Michaelmas next ensuing his death and further by the said will he devised to his younger son all his lands not devised to his wife and adjudged that by the said words the younger son shall have only that parcel which was devised to the wife for life and not that which was devised unto her till Michaelmas and yet by Popham it appeareth that his intent was otherwise viz. that all that should go to his younger son so there ought not to be a strained construction made against the heir and so in our case the words being that if he die without issue c. that then it shall go to his wife herein as much as he had issue at the time of his death it cannot be said that he died without issue but that he is dead without issue and this appeareth by the pleading in the Lord Bartleys case in Plowden and he vouched also a case in the Kings Bench 4. Jac. between Miller and Robinson where a man devised to Thomas his son and if he die without issue having no son there it was holden that if the devisee had issue a son yet if he had none at the time of his death the devisee in the remainder shall have it yet he was once a person having a son and so in our case there was a person who did not die without issue and he vouched also the case of Bold and Mollineux in 28. H. 8. Dyer fo 15.3 when a man deviseth to his wife for life paying a yearly rent to his sister and that if the rent be not paid that the sister may distrain it seems to me that this is a conditional estate in the wife notwithstanding the limitation of the distress and he vouched 18. Eliz. in Dyer 348. which as he said proved the case expresly for there in such a case it is adjudged that the devisee of the rent may after demand thereof distrain and yet the heir may enter for the not payment of the rent although it were never demanded so that the subsequent words of distraining do not qualifie the force of the condition although there be there an express condition and in our case but a condition implyed and he said that it seemed reasonable that such a construction for the distress and condition also shall stand as appeareth by divers cases that upon such words the Law will allow a double remedy and therefore he vouched Gravenors case in the Common Pleas Hill 36. Eliz. Rot. 1322. where a lease was made by Magdalen Colledge to husband and wife so that if the husband alien that the lease shall be void and provided that they do not make any under-tenants and to this purpose he vouched the case of the Earl of Pembrook cited in the Lord Cromwels case Cook lib. 2. where the words amounted to a covenant and a coudition and if this word paying should not be construed to be a condition then it were altogether void and idle and such a construction ought not to be made in a will and he conceived that this rent ought to be paid by the wife without any demand upon the pain of the condition and therefore he vouched 22. H. 6. fo 57.14 E. 4 21. E. 4. by Hussey and 18. Eliz. Dyer 348. vouched before and so it was resolved as he said in the Court of Wards in Somings case where a man made a devise paying a rent to a stranger this ought to be paid without demand and he said that the Common case is proved when a feofment is made upon condition that the feoffee shall do an act to a stranger this ought to be done in convenient time without request by the stranger and so here it seemeth although a demand ought to be made by the sister yet the wife ought to give notice to the sister of the Legacy so that she may make a demand and therefore he vouched Warder and Downings case where a man devised that his eldest son upon entry should pay to the younger son such a summe of money here the eldes brother ought to give notice at what time he will enter to the intent that the younger brother may be provided to make a demand Edwards of the Inner Temple contrary First it seemeth that by this limitation the wife ought to retain the land until the issue of the devisor should have come to the age of 18. years for this a time certain and as it is construed upon such words in Borastons case Cook lib. 3. that the Executors there have an interest certain so it should be construed here to refer to a certainty which is until the time by computation that the issue should have attained to 18. years and the rather in this case in respect the devisor had otherwise disposed of the land until the son should have accomplished the said age Secondly it seemeth that the wife hath an estate for life not conditional in so much as the words are not joyned in the case the 18. Eliz. Dyer hath been vouched but that was upon an express condition but here it is by implication and then the clause of distress taketh away the force of the implication which otherwise might be thereupon inferred and therefore in 5. Eliz. Dyer it appeareth that the word Proviso annexed to other words makes it no condition in judgement of Law and so in 14. Eliz. Dyer 311. and he vouched also 18. Eliz. Dyer Greens case that if a man deviseth lands to his friends paying to his wife with a clause of distress this is no condition as it is adjudged Thirdly it seemeth that this summe to be paid to the sister is a rent and therefore ought to be demanded or otherwise in judgement of Law the condition shall not be broken and the 21. E. 4. the case of an obligation to perform covenants c. and a case between Wentworth and Wentworth 37. Eliz. that a demand ought to be made for a rent which is granted in liew of Dower for the wife brought a writ of Dower for the land of her husband the Tenant pleaded that she accepted a rent out of the land in liew of her Dower and the wife replied that the said rent was granted upon condition that if it were not paid at certain dayes that it should be void and that she should have Dower of the land and she said that the rent was not paid at the dayes c. but shewed not in her pleading any demand to be made and therefore it was holden evil pleading for such a rent ought to be demanded or otherwise the condition is not broken and so here Nota that this case was appointed to be argued again but after as I heard the Barons amongst themselves resolved to give judgement for the Defendant upon one point only which was that the estate
but otherwise it should be if an express confirmation was requisite in the case for then it had not been good and this difference is where the parties who confirm have an interest and where they have only an assenting power and this is well proved by 29. H. 8. Dyer 40. the Dean of Sarums case and by Cook lib. 5. 81. and 33. H. 8. tit confirmation Thirdly it seemeth that the bare returning of the Commission without an express inrolment is no sufficient matter of Record to intitle the King to the lease for it is without inrolment no more but an acknowledgement and the Deed ought to be of Record to pass the estate 7. E. 4. fo 16. but he agreed that if the Commissioners return an acknowledgement of a debt this is sufficient to make a debt upon Record 2. H. 7.10 but if Commissioners by a dedimus potestatem to take Conizance of a fine receive the Conizance of the fine and return it yet it is not a fine until the final Concord be recorded Cook lib. 5. Tayes case and so here it is no record until the inrolment Fourthly in regard there is no inrolment in the lâ—fe of the Bishop and so no perfect leale in his life this can never be good for this circumstance of inrolment is as requisire to the essence is the attornament is to the grant of a reversion and is causa sine qua non for the successor of the Bishop comes in paramount the Lessor as the issue in tail comes in partly by form of the guift and this is proved by the writ of de ingressu sine assensu Capituli in the. Register and therefore if the Bishop make a lease and dieth this leale cannot be affirmed after his death by the Chapter 33. E. 3. entry Congeable 79.11 H. 7. and yet a lease made by the Bishop is not altogether void by his death as it appears in Cook lib. 3. in Pennants case and he compared this case to the case of Smith and Fuller in Plowden where if a lease be made for so many years as A. shall name the years ought to be named certainty in the life of the Lessor for otherwise it is not good clearly and so here the Lessee ought to come in by the Bishop who was Lessor or otherwise this is no good lease and it cannot be so in our case because it wanteth inrolment to make it a lease in the life of the Bishop Fifthly he said the inrolment after the death of the Lessor shall not have relation to make the lease good for the Queen takes nothing until the inrolment made and therefore all is but words until the inrolment and it differeth much from the case of a bargain and sale for in such case an use passeth at the Common Law before any inrolment and this may relate well enough if the Deed be inrolled after within 6. moneths for the Statute of the 27. H. 8 of inrolments doth not hinder the relation for the words are that nothing shall pals by the bargain except the Deed be inrolled c. so that if the Deed be inrolled in due time it passeth from the beginning well enough but otherwise it is in our case see the 12. H. 4. fo 12. so a fine cannot relate but from the recording thereof for nothing passeth but by the Record and it doth not relate as a bargain and sale c. and as to the exceptions taken to the Bar he said that notwithstanding them the plea is good for it shall be intended the same writing which the information mentions and it is not like to Mary Dickensons case Cook lib. 4. fo 18. where the Plantiff alledged that the Defendant published a forged writing in discredit of the Plantiffs utle and the Defendant said quod talis Indentura qualis c. this doth not answer the Declaration for no like is the same but in our case the Bar cannot be better for the information is that by writing he demised c. and the Bar is that well and true it is that the Bishop by his certain writing made purporting a demise which he pretended to be no demise in fact and if he should say in express words as the information ought to be then he should confess the thing which is matter in law and ought not to take a Traverse to the demise alledged because it is a matter in Law if it be a demise or not to the second exception he said that he needs but to answer the express surmise of the information which is that two Commissioners c. and the Bat is expressy that they did not c. without speaking any thing that the other Commissioners did do any thing as if an action of accompt be brought and the Plantiff saith that the Defendant accompted before A. it is a good plea that the Desendant did not accompt before A. for though peradventure he accompted before another but this shall not be incended so the Bar is good He accepted to the information First it doth not mention within what time the first lease was intolled for the words are modo irrotulat Secondly the information saith not that the deed of confirmation was ever sealed but that the Chapter with their seal c. and saith not sealed and then it is not good wherefore upon all the matter it seemeth that judgement ought to be given against the King Snig Baron that the Bar is good and also the information first it seemeth that here is no Record to intitle the King to this land by the lease from the Bishop for if this deed which purporteth a lease made by the Bishop were found by inquisition to be acknowledged yet it is no sufficient Record 7. E. 4. and 5. E. 4. for the title of the King ought to be by the Record immediately from the party who makes the estate and Mr. Stamford is to be considered that if the King hath an antient right he may peradventure be in actual possession without Record but if he cometh in as a purchaser he shall not have without a Record and this is proved by the case of the Duke of Somerset in 19. Eliz. Dyer and Mackwilliams case in 3. Eliz. and be said that as to the relation if a man seised of a Mannor bargaineth it to me and rent incurreth before the inrolment I shall not have the rent although the Deed be inrolled within 6. monehts after and so of a condition and if a reversion be granted and before attornament of the Tenant the rent incurreth the grantee shall not have the rent notwithstanding any relation as to the point of confirmation he vouched the case of Patrick Arch-Bishop of Dublin in Ireland cited in Dyer also he vouched Dyer fo 105. and by these books it seemed that in this case a confirmation is required to be made and a bare assent is not sufficient and therefore if an incumbent make a lease for years and the Patron grants the next
avoidance and after confirms the lease here the lease is not good in respect the next avoidance interrupts it for his life but after the death c. the term will be good as it was here lately adjudged and so he thought that in this case the confirmation is not good and also that the Commission not being returned is not good and after one of the Commissioners die before the return it cannot be recurned and by the inrolment here made the lease cannot take his effect with any relation and so be concluded that judgement ought to be given against the King Tanfield chief Baron the Commission for the acceptance of the acknowledgement of the Bishop touching that it is to be known whether this makes it the Deed of the Bishop and that the Commissioners should return c. the confirmation in this case was made in the life of the Bishop Lessor and of the Queen Lessee although that some of my brethren conceive the Record to be otherwise also in this case Dimock entred by vertue of his lease before the inrolment of the lease made to the Queen as the Record purporteth to the points First I conceive that nothing resteth in the Queen without inrolment but if Lessee for years be outlawed the King shall have this lease by the outlawry for the outlawry is intended to be upon Record but of a wardship for land that is not in the Queen by the death of the Queens Tenant without an office because there is no matter of Record if an Alien hath a lease of land this is forfeited yet he shall have personal Chattels and as to the Book of 18. E. 3. cited on the other side where the King brought a quare impedit c. this may be well agreed for the Prior of Durham confessed by Record that he had made a grant and this is a sufficient Record and as to the book of 20. E. 4. where the Patron was outlawed and before the outlawry the Church became void that the King shall present it may be well agreed although that no office be found for this presentation is but a thing personal and transitory and therefore those Books prove nothing in this case Secondly he said that when this lease was acknowledged before Commissioners yet that was not sufficient to make a record to intitle the King and it is here expresly denied in the Bar that this lease was certified into the Chancery in the life of the Queen and therefore he thought that here was no Record to intitle the Queen and to this purpose he cited a case in 19. Eliz. Robins and Greshams case if a Recognizance were acknowledged before a Master of the Chancery and not inrolled this is no Recoâ—d and an Action of debt lieth not thereupon and the 34. Eliz. in Brock and Bainhams case in this Court a Recognizance was taken before a Baron of this Court yet this was no Record without inrolment and therefore the bare acknowledgement in our case is no Record also he denied the opinion of Davers in 37. H. 6. to be Law but only for personal Chattels and the 12. Eliz. Brook and Latimers case was adjudged against the opinion of Davers for land or leases Thirdly he said that the successor of the Bishop comes in paramount the lease made to the Queen and the new Lessee entring before any inrolment hath made the successor of the Bishop as in his remitter and when an antient right comes this prevents the relation which otherwise might be by the inrolment and he said that the first lease here made to the Queen is meerly dead until inrolment and he vouched the 11. E. 4. fo 1. Vactons case the discontinuor enters upon the discontinuee after the discontinuee dieth his heir within age the discontinuor dieth this causeth a remitter and so by him if the disseissee enter upon the heir of the disseissor being an infant and dieth this avoids the descent by reason of the antient right which the disseissee had and by 7. H. 7. and 11. H. 7. Eriches case it appears that an Act of Parliament will not revive a thing that is meerly dead by reason of any inrolment and much more here an inrolment cannot revive this lease which is meerly void by the death of the Lessor and the entrance of the Lessee of the Bishops successor and there is a great difference betwixt the inrolment in this case and the inrolment of a bargain and sale in regard that the sale is dead before the inrolment and yet in the case of bargain and sale it was adjudged in the Common Pleas Pasch 2. Jac. in Sir Thomas Lees case called Bellinghams case that if a man bargain land to A. and before inrolment of the Deed A. bargaines the land to B. which second bargain is inrolled this inrolment makes not the bargain good to B. for the relation of the first is only to perfect and make good the conveyance to A. from all incumbrances after his bargain but not to make the second Deed good which was void before also in 36. Eliz. in Sir Thomas Smiths case if the Bargainee suffer a recovery before the Deed inrolled yet that doth not make the recovers good and he said that in this case until an inrolment of the lease made to the Queen there is no Lessee and a lease cannot be without a Lessor and Lessee and before an inrolment of the lease the Lessor is dead so that there never was a Lessor and Lessee in life together and therefore the inception of this lease was altogether imperfect before the consummation came and so it leemeth by him that the death of the Bishop Lessor intervening before the inrolment is the principal cause that the first lease is not good as to the 4 th point of confirmation it seems to me in regard that the Bishop was seised in right of his Bishoprick and the Dean and Chapter have no interest in the land so that an assent is only sufficient in this case it seems to me that the confirmation as you call it is good enough for it is clear that an assent may be aswell before the lease as after for it passeth no interest no more then an Attornment Cook lib. 5. Foords case proveth this diversity plainly and by the same reason also it seems to me that this assent of parties who have no interest is good enough without inrolment but otherwise it should be if a confirmation were required in the case and as to the pleading I think the Bar is good and as to the exceptions which have been made viz. if the lease supposed to be made to the Queen be answered and he said it was good enough for the purpose of the Defendant is to bring the matter in Law before the Iudges and the matter in Law is if it were any lease or not as the information supposeth and therefore the Defendant ought not to agree with the information for the matter in Law and
in 1. Jacobi and no other conviction ever was and yet de facto he continued a Recusant untill his death and his Land viz. two parts thereof were seised in his life and the King answered of 200. l. thereof which incurred in the moneths contained in the Indictment and now a Writ is issued which supposeth the said Robert to be indebted to the King in 20. l. for every moneth be lived after 28. Eliz. untill 1. Jacobi for his Recusancy which amounted to 4000. l. which Writ also commands to enquire what Lands the said Robert Becket had at the time of his death and thereupon it was found that he had divers Lands c. and upon a Scire facias to the Terretenants to shew cause wherefore two parts of the Lands of the said Robert Becket should not now be seised for the debt of the Recusant aforesaid one Henry Becket as Terretenant or Tenant of the Premisses pleaded that the King is satiefied of all the 20. l. and for all the moneths that the said Robert was convicted to be a Recusant and he vouched the Constat thereof under the hand of the Deputy of the Pipe Office and for the residue he said that by 28. Eliz. cap. 6. it is amongst other things enacted that if any person which hath not repaired or shall not repaire to some Church Chappell or usuall place of Common Prayer but hath forborne or shall forbeat the same contrary to the Tenor of the Statute of 23. Eliz. cap. 1. and hath been heretofore convicted for such offence shall forfeit c. provided that it he hath made submission and been conformable according to the true meaning of the said Statute or shall fortune to dye that then no forfeiture of 20. l. for any moneth or for seisure of the Lands of the same offender from and after such submission and conformity or death and full satisfaction of all the arrerages of 20 l. monethly before such seisure due or payable shall ensue or be continued against such Offendor and traverseth without that that there is any Record besides this Writ to charge the said Robert Becket deceased of or for the summe of 4000. l. towards our said Lord the King c. and so prayeth to be discharged thereof Vpon which Plea the Kings Atturney Generall demurred and Coventry argued that the Plea is good he said that there are three Points to be considered First that if a man be convicted of Recusancy in 28. Eliz. for 10. moneths then passed and de facto continueth a Recusant untill his death in 1. Jac. without other conviction if now the King can claim 20. l. a moneth for more moueths then are contained in the Indictment whereupon he is convicted Secondly admit that the King may have the forfeiture for every moneth whereof no conviction was as well as if a conviction had been then if the King can seise the Lands for the payment thereof after his death no seisure being had for it in his life by the Stat. of the 28. Eliz. or if the power of seisure be altogether gone by the death of the Recusant Thirdly admitting that the King shall have more then is contained within the Indictment if the Debt it self be not gone by the death of the Recusant To the first Point there is no President to be found that any man convicted before 28. Eliz. was charged to the Payment of more then that which was within the Indictment and the words of the Statute of 28. Eliz. contained within this Clause which provides for the payment due since the Conviction do not inforce any construction to the contrary and in this Clause the words being do yet remain unpaid are not proper words but for a thing payable before this Statute for so many moneths whereof he was convicted of Recusancy and the words without any other conviction are to be understood for so much as was unpaid of that contained in the Indictment and the last Clause of this Branch of the Statute hath not the words without any conviction and the other Clause provides that by expresse words for the future time every person who shall be once convicted shall forfeit c without other conviction and it was resolved Hill 4. Jacobi in the Kings Bench between Grinstone and Oliver that the Statute of 28. Eliz. alters and adds three things to the Statute of 23. Eliz. 1. That all the money due for Recusancy shall be paid into the Exchequer 2. This limits a time for payment thereof yearly viz. in the four Terms of the year 3. This giveth a penalty viz. power to seise all the goods and two parts for non-payment but all that is only for that which was payable before the conviction and therefoâ—e the words in the Branch which contains our Case have apt words of construction that he shall pay all due for the paine of seisure for 23. Eliz. gives no seisure but imprisonment if payment be not made within three moneths after judgement and so in our case Conviction ought to precede the duty To the second Point it seemeth that the power of seisure within this Statute is gone by the death of the Recusant for before the Statute of 1. Jacobi the power for seisure was but a penalty that if the party fail in payment of 20. l. a moneth then c. and in all cases upon penall Laws if the party die before the penalty inflicted this shall not be inflicted at all and that this is but a penalty he vouched one Grayes case in 1. and 2. Jacobi to be adjudged accordingly Also the words in this Statute which give the seisure of Land appointeth a levying to be of the 3. part for the maintenance of the Offendor his Wife Children and Family and after his death he hath no Wife so that if it be demanded when the seisin must be the answer is then when a third part may be left for his use which cannot be but in the life of the Recusant Also it appoints that the seisure ought to be by Processe which ought to be in the life of the party by intendment Also the Proviso of the Statute of 28. Eli. saith that if any person shall dye no seisure shall insue or be continued aâ—d out case is within those words for in regard there hath been no seisure in his life therefore after his death no seisure ought to insue and the words which purport another semblance of construction viz. and satisfaction of all arrerages are to be understood only in case where there was a former seisure that is in the life of the party and have reference to the words to be continued and that the intent is so he said that the words are so that the Heir shall pay no more but so much as the Land was seised for To the third it seemeth that in this case the debt it self is gone by the death of the party At the Common Law a penalty shall never be recovered against the
was in a Formedon in remainder and it was moved now by Serjeant Harris if the partie against whom it was given may sue in the Exchequer Chamber by Bill or petition to the King in the nature of a writ of false judgement for the Reversal of that judgement Tanfield seemed that it is proper so to do for by 13. Rich. 2. if a false judgement be given in a base Court the partie grieved ought first to sue to the Lord of the Mannor by petition to reverse this judgement and here the King being Lord of the Mannor it is very proper to sue here in the Exchequer Chamber by petition for in regard that it concerneth the Kings Mannor the suit ought not to be in the Chancery as in case a Common person were Lord and for that very cause it was dismissed out of the Chancery as Serjeant Harris said and Tanfield said that he was of Councel in Pettishals case in the time of the Lord Bromley where it was debated at large if such a judgement ought to be reversed by petition in the Chancery in case where a Common person was Lord and at last it was decreed that it should be as in that case of Patshal and for the same reason here the King being Lord and therefore day was given till the next Term to shew their errours and Serjeant Harris said that the errors are in effect no others then were in the case 9. Eliz. Dyer fo 262. and in Godmanchesters case and it was adjourned Scot and his wife against Hilliar SCot and his wife Plantiffs against Hilliar for these words spoken of the wife viz. she would have cut her husbands throat and did attempt to do it Hutton Serjeant in arrest of judgement said that these words are not actionable for the will or attempt is not punishable by our Lawe and he vouched Cockains case Cook lib. 4. cited in Eaten and Allens case but by the Court an Action lies for the attempt is a cause for which the husband may be divorced if it were true and it is a very great slander and Baron Snig said that in the same Term a judgement was given in the Kings Bench and was affirmed in the Exchequer Chamber upon a writ of error for these words He lay in the high way to rob me and therefore let judgement be entred for the Plan̄tiffe but it was adjudged in the principal case that for the words she would have cut her husbands throat no Action would lie Gooches Case A Coppyholder surrenders into the hands of the Customary Tenants to the use of Anne his Wife and after before any Court the said Coppyholder surrenders the Land into the hands of other Customary Tenants to the use of the said Anne for her life the remainder to Percie in Fee upon condition that he in remainder his Heirs should pay 20. s. per annum at Michaelmas for ever the first payment to commence immediacely after the death of the said Anne viz. at the next feast of St. Michael and this to be paid in the Church Porch or D. to the Church Wardens of D. in the presence of four discreet Parishioners or otherwise that a stranger should re-enter and at the next Court both these surrenders were present and the Steward admitted the said A. according to the second surrender and she dyed and now upon pretence that the rent of 20. s. was not paid by the Heirs of him in remainder the Heir of Gooch who made the surrender had entred and thereupon an Action was brought and upon the evidence the Jury to the County of Bedford now at the Bar These matters were moved by Serjeant Nichols That a surrender into the hands of Customary Tenants cannot be Countermanded and therefore the second surrender void and the admittance shall work to such uses as the first surrender was made as in Anne Westwicks Case Cook Lib. 4. And to prove that a surrender into the hands of Customary Tenants is not countermandable he said that it is not countermandable by death nor surrender Cooke lib. 4. in his Coppyhold Cases That a presentment in the Court may be after the death of the surrenderer and the admittance thereupon is good and he compared it to the Case of the delivery of a Deed as an Escroll which may be delivered as his Deed after the death of the Maker as it is in Jennings and Braggs case Cook lib. 3. which was not denyed by the Court Serjeant Dodderidge said that when a surrender is made upon condition that he shall pay a summe of money to a stranger these words make an estate conditionall and give power implyedly to the Heirs of the party who did surrender to re-enter for non-payment and the words which give power to a stranger to re-enter are meerely void neverthelesse the precedent words shall stand and make the estate conditionall Tanfield Littleton saies that such a re-entry is void for a re-entry cannot be limited to a Stranger Nichols Serjeant said that if a surrender be made that he shall pay so much money that this makes the estate conditionall and gives a re-entry to the Heirs of him who did surrender But when it goes further and doth not leave the condition to be carried by the Law in such case all the words should be void because it cannot be according to the intent as in the case of a reservation of rent the Law will carry it to the Reversion but if it be particularly reserved then it will go according to the reservation or otherwise will be void and so here Tanfield Admit that here was a conditionall estate by vertue of the Surrender last made and this condition is also to be performed to a stranger which generally ought to be taken strictly yet as it is here he who will take advantage thereof ought to prove a voluntary neglect in the party in the not performance of the Condition and inasmuch as there is no certain time appointed when the payment of this Annuall rent should be made but generally at Michaelmas next after the death of the said Anne thereby in this case the Chuch-wardens ought to notifie the death of the said Anne before the first day of payment by reasonable space or otherwise the condition is not broken and also it is appointed here to be paid in the presence of four discreet Parishioners by the party who should perform the condition yet by intendment he hath no notice who are discreet or who are not especially he being an Infant as in our case he is and therefore although the condition is to be performed to a stranger which generally ought to be performed strictly according to 12. E. 3. Yet this is to be intended only in such cases where the party had certain notice of all circumstances requisite for payment thereof and therefore he directed the Iury that for want of knowledge of such circumstances they should give a Verdict that the condition was not broken And Dodderidge
Serjeant moved that this matter might be specially found Tanfield said the Iury knows our opinion and therefore leave it to them and the Verdict was given that the condition was not broken See Term Pasch that proofes by deposition taken here in a former suite shall be allowed in this notwithstanding all the parties be alive and it was adjourned Note that in Staffords case in the Court of Wards this Term Flemming and Cook were of opinion with Tanfield here viz. That notice ought to be given to the Infant in the Case above-said I. S. was Parson of D. as appropriate and A. is Vicar and the King is Patron of the said Vicaridge and debate was between the Parson and the Vicar this Suite ought to be in the Exchequer for these Tithes and by the Court it may be commenced accordingly by English Bill in the Exchequer or by Action to the Office of Pleas for it is apparant that the King is Supreme Ordinary this was Pasch 9. Jacobi Sir Stephen Leazures case IN Sir Stephen Leazures case upon a charge upon Sir Thomas Gresham deceased Process issued to the Sheriffs of London to inquire what Lands the said Sir Thomas had in London at the time of the debt accrewed and to whose hands c. And the Inquisition found that the said Sir Thomas was seised of divers Messuages in London in four severall Parishes viz. in c. And now the Maior and Comminaltie of London came as Tenants of the premisses and demanded Oyer of the Inquisition and then demurred thereupon and by the Court the Inquisition is insufficient for the words of divers c. are so generall that no exception thereupon may be made nor the party can give no answer thereunto so of an Office found in the Court of Wards as it hath been divers times here used see Carters case Pasch 8. Jac. in the Court of Wards Kitchin against Calvert SEe the Case before fo many Arguments therein at the Bar by Bridgeman Ireland Serjeant Hutton and the Atturney Generall in Michaelmas and Hilalry Jac. And now the Barons argued and first Bromley Puisne Baron argued for the first matter which is when a Church being void the Patron contracts with Parkinson for money to be given to present Kitchin the money to be given by Parkinson and Kitchin not knowing of this Symonie is presented instituted and inducted thereunto whether this be void or not The 2d Matter is admitting that this is void that the Queen presented Covell who died before Institution or admission if this presentation be good to Calvert without a Repeal of the Presentation made by the Queen and it seems to be in both points for the Plaintiff To the first point be said That the intent of the Statute was to cradicate all manner of Symonies and therefore the words are not if any man give money to be presented but they are if any present for money and the Iutors here found 20. l. to be given and nothing for what it was given or to whom it was given for if money be the meede a Presentation is void and therefore if I. S. be Patron of the Church of D. which is void and a stranger saith to me procure the Presentation for A. and you shall have 100. l. and he procured A. to be presented here if the Patron had notice of the money given to me this Presentation is void but otherwise not and in our case without notice of the Parson the Admissor and all which ensued thereupon is void by reason of the Symonie in the Patron and it is void as to the Parson also and if in this Case we are not within the words of the Statute yet we are within the intent cleerely as upon 1. Ed. 6. of Chanteries an estate made for years or for life to Superstitious uses shall be within the intent although not within the words of that Statute as it appears in Adams and Lamberts case Cooke lib. 4. So the Statute of 11. H. 7. should be construed to meet with Cases of like mischief as it appears in Sir George Browns case Cooke Lib. 3. and Panormitane saith that Simonia est Studiosa voluntas emendi vel vendendi aliquid Spirituale vel Spirituali annexum cum opere subsequente To the second Point it seems that the Presentation made by the King to Calvert is good without aid of the Statute of 6. H. 8. cap. 15. for Covell who were the Presentee of the Queeen had nor interest no estate and yet if he had it would be void by the death of the Queen for the presentation is but a commendation and therefore if the Patron present his Villaine this maketh no infranchisement and so if Lessee for years of a Patronage be presented this doth not extinguish his Term. And whereas it hath been said that the Kings Grant cannot be construed to two intents true it is if it be to the Kings prejudice but otherwise it is if it be for his benefit as plainly appears in Englefieldss case Cook lib. 7. See 17. Ed. 3. fo 29. Also it is without question that the King may actually revoke his Presentation as it appears by 28. Ed. 3.47 And this implied Revocation is as good being for the Kings benefit as an actuall or expresse Revocation Dyer 18. Eliz. 348. And it was adjudged in Pasch 3. Jac. in the Common Pleas Rot 1722. one Williams case that an Actuall Revocation or Repeale is not necessary And so it was adjudged Trin. 8. Jac. Rot. 1811. in the Bishop of Chichesters case and therefore the King may make a Presentation to a Church which belongs to him by reason of Wardship under the Seale of the Court of Wards because the presentation is only a Commendation as it was there said and so it was agreed also Trin. 8. Jac. at Serjeants June by Flemming Cook and Tanfield in the Lord Windsors case referred unto them out of the Court of Wards and there it was said by Cook that the King may present by Parol as it appears by 17. Eliz. Dyer and that a Second Administration may be well granted without Repeal of the first and also it seemes that the Statute of 6. H. 8. cap. 15. doth not extend to a Chaplain for he is not a Servant within that Statute nor a Presentation is not a thing within that Statute and moreover in this Case Covel who was the Queens Presentee is not in life and therefore this Case cleerely is out of the Clause of the Statute of 6 H. 8. and so he concluded on the whole matter that Iudgement ought to be given for the Plaintiff Altham the second Baron accordingly The Presentation made to Kitchin is void and the Admission and all subsequent thereupon is void also for the words of the Statute are that if a Presentation be made for monie it shall be void and that the King may present that Turne and therefore the want of privity in the Incumbent is nothing to the
purpose as to the avoiding of the Benefice but his want of privitie availeth to excuse him of being Simoniacus yet because he is Simoniace Promotus the presentation is void and the King shall have it by the expresse words of the Statute and therefore as it seems if in this Statute there had been an expresse saving of the interest of the Incumbent by reason of his innocency yet such a saving of Interest had been void and repugnant in respect that it was expresly given to the King before as it is in Nichols case in Plowden upon the Stat. of 1. H. 7. See 1. Mar. Dyer and 7. Eliz. Dyer 231. such a saving doubted if it be void and in Cook lib. 1. Altonwoods case a saving Repugnant to the expresse words of the Premisses is void and so in our Case the Presentation is given to the King expressely and therefore if there were a saving in the words subsequent this were void much more in our Case where there is no saving And to prove that by the Symonie in the Patron that the Patron shall be prejudiced he vouched 42. E. 3. fo 2. It goods be given to B. by A. this is by fraud in A. to the intent that he may defraud another although B. is not knowing of this friend yet the gift is void as to him 34. E. 1. Title Garranty accordingly and Burrells case Cook lib. 6. upon the Statute of 27 Eliz cap. 4. to the same purpose To the second matter it seems that by the Queens death her Presentation is determined cleerely and so in case of a common person for if an Admission c. should follow after the death of the Presentor this is without any Authority of the instrument of Presentation for although there were no Admission there is no Presentation and he said that the Presentation passeth no interest but is as a Commendation and therefore he compared it to the Case of Say and Fuller in Plowden Com. If a Lease be made for so many years as a stranger shall name there ought to be certainty of years appointed in the life of the parties or otherwise it will be void and in 38. E. 3.3 If a Bishop present and die before c. Now the King shall present anew and also there it appears that the King may present by Paroll well enough and so it is said in 34. E. 3.8 tit Quare impedit 11. That a Presentment made by the Bishop becometh null and void by his death and therefore it appeareth in Fitzh Office of Court 29. that licence to alien granted to the King is void by the Kings death there needeth no actual Repeal or recital of the new presentation yet I agree that the King may make an actual repeal if he will as it appears by divers cases which have been cited before but that is of necessity to be done and as it seems the words of the Statute 6. H. 8. prove that before this Statute a second Grant made the first void without actual repeal in case where the thing passed by the Grant and by 38. E. 3. fo 3.4 it appears that a second Presentation made by the King was good without a repeal of the first and by Gascoigne 7. H. 4.32 if the King make a Presentation to one and then presents another without recitall or repeal of the first yet the Bishop ought to receive the latter Presentee for it is good without actual repeal wherefore judgement ought to be given for the Plaintiff Snig Baron said that as the Action is brought judgement ought to be given for the Plaintiff but if the Plaintiff had brought a Quare impedit peradventure I should have been of another opinion And as to the point of Symonie by the Civill Law it was punishable by deprivation and the guilt of the Patron should prejudice the Parson as to matter of Commodity in the Parsonage and at the Common Law if the Parson will pleade such Presentment he should be prejudiced as appears by our Books and hereby the incumbency the words of the Statute will not be satisfied for then the Queen should not Present if an usurper present and the Presentee is in by six moneths this gives Title of Presentation to the King against the rightfull Patron also it seemeth That if I. S. hath an Advowson and A. purchase the next avoidance to the intent to present B. and the Church becomes void and A. presents B. this is Symonie by averment as by good pleading the Presentation of B. shall be adjudged void To the second Point in respect that the Plaintiff had the possession by induction it is no question but he may retaine a possessorie Action for the Titles But if it were in a Quare impedit it would be materiall whether a Repeal should be in the case or not according to the Presidents in the Booke of Entries fo 303 304 305. for if a Licence be Granted to purchase in Mortmaine this may well be executed after the death of the Queene as it appeareth by Fitzherberts natura brevium expresly and so in Dyer a license of Transportation doth not cease by the Kings death 7. H. 4. in the Countess of Kents case it appears when the King makes a grant which is void yet there shall be no new grant without an actual repeal but it seems we are out of the intent of the Statute of 6. H. 8. because the words during his pleasure are not in the grant or Patent and so upon the whole matter judgement shall be given for the Plantiffe Tanfield accordingly the case is that the Defendant had prioritie of the possession of the Corn for which the action is brought and yet it seems judgement ought to be given for the Plantiffe and first as this case is here is Simonie by the Civil Law and the partie had his benefice by Simonie although he be not conusant thereof Secondly admit that here was not Simonie by the intendment of the Civil Law yet the Statute hath made an avoidance of the benifice in this case although it be not Simonie for the Statute speaks not one word of Simonie throughout the Act and yet by express words it doth avoid such presentations as this is and as to the Civil Law such benefice is to be made void by sentence declaratorie but it is not void ipso facto as it seems in the case where a common person was consenting to the Simonie but the text of the Civil Law sayes expresly that the Church ought not to be filled Corruptivè or by corruption and the Civil Law expresseth such a person as is in our case by Simoniace promotus and calls him who is particeps criminis Simoniacus and he who is Simoniacus is by the Civil Law deprived not only of the benefice ipso facto but also is deprived to be a Minister and adjudged guiltie in Culpa et poena Petrus Benefieldus a late writer of good authoritie saith that if a friend
by seisure of two parts of the land c. then when a Statute gives a new thing which was not at the Common Law and limits a course and means whereby it shall be levied that course ought to be pursued and it cannot be done in any other manner the Statute of 8. H. 6. cap. 12. makes the imbesting of a Record Felony and that this shall be inquired by Iury whereof one halfe shall be Clarks of some of the same Courts and that the Iudges of the one Bench or of the other shall hear and determine it and the case was that part of the offence was done in Middlesex and part in London so that the offence could not have such proceeding as the Statute appointed and therefore it was holden that it should not be punished at all Mich. 41. et 42. Eliz. Betwixt Aggard and Standish the Statute of 8. Ed. 4. cap. 2. inflicts a penaltie upon him that makes a retainer by parol and moreover it is thereby ordained that before the King in his Bench before the Iustices of the Common Pleas Iustices of the Peace Dyer and Terminer every man that will may complain against such person or persons doing against the form of this ordinance shall be admitted to give information for the King and it was holden that the informer could not sue for himself and the Queen upon this Statute for an offence done in any Court not mentioned in that Statute the Statute of 35 Eliz. cap. 1. appoints that for the better and spedier levying and Recovering for and by the Queens Majestie of all and singular the pains duties forfeitures and payments which at any time hereafter shall grow due or be payable by vertue of this Act and of the Act made in the 23 d. year of her Majesties Raign concerning Recusants that all and every the said pains duties c. may be recovered to her use by Action of debt Bill plaint or information or otherwise in any of her Courts of her Benth Common Pleas or Exchequer in such sort in all respects as by the ordinary course of the Common Lawes of this Realm any other debt due by any such person in any other case should or may be recovered wherein no essoin c. Note that this Statute extends not to any penaltie upon the Statute of 28. Eliz. cap. 6. also the Common Law doth not give any means to levie a debt upon a trust and as to the general point it seems that no land can be seised after the death of the Recusant 23. Eliz. cap. 1. enacteth that every person of the age of 16. years which shall not repaire to some Church c. but forbear the same contrary to the Tenor of the Statute made in the first year of her raign for uniformity of common prayer and being thereof lawfully convicted shall forfeit to the Queen for every moneth which he or she shall so forbear 20. l. And that statute doth give no forfeiture at all for Lands And also it giveth no penaltie without conviction so that the death of the party before conviction dischargeth all and so without question it was at that day This last Point seems to be remedied in part by the Statute of 28. Eliz. cap. 6. for thereby if the party be once convicted he shall alwaies pay after without other conviction and this Statute gives also a Seisure but before any seisure Three things ought to concur 1. Recusancy 2. Conviction 3. Default of payment And the last of these was the tâ—ue cause of the seisure viz. That is the contempt of not payment Therefore it was adjudged in Sir William Greenes case that this seisure shall not go in satisfaction of such debt but the King shall hold it as a penalty for the contempt untill the debt be paid so that when a Statute imposeth a penaltie for a contempt as the contempt is personall so is the penalty And therefore the death of the party before that it be excuted or turned in rem judicatam dischargeth all and I shall prove it by the different plea in an Action upon a penall Statute and other common Actions and therefore in debt not guilty is no plea but in debt upon a penall Law it is a good Plea for in truth untill it be adjudged it is no debt but a contempt Michaelmas 41 42. Eliz. betwixt Car and Jones and in debt upon the Statute of 2. Ed. 6. not guilty was adjudged a good plea Trin. 42. Eli between Morley Edwards 2. It may be proved by the different forms of judgment for in common actions the judgment is Quod quaerens recuperet c. But in informations the usuall form is Quod defendens foris faciet 41. Ass which implies that it is not perfect untill the Iudgement and before it is only a contempt and if so then by the death of the party it is discharged Thirdly I shall prove it by Authority that the death of the parties before Iudgement dischargeth aswell the contempt as the penaltie of a penall Law 40. Ed 3. Executor 74. debt lies not against the Executors of a Iaylor who suffers Prisoners to escape 15. Eliz. Dyer 322. in the like Case the opinion of the Court was that an Action did not lye against the Executors of the Warden of the Fleet. but there ought to have been a Iudgement against him in his life time for the Offence is but a Trespass by negligence which dies with the Person 18. Eliz. Dyer An Action brought against the Heire and ruled that it doth not lie for it is a Maxime that no Law or Statute chargeth the Heir for the wrong or trespasse of his Father Also it is to be observed in the Principall Case that the Statute limits the seisure to be by Proces out of the Exchequer so no seisure can be without Proces as it may be upon some other Statute But a judiciall course is hereby prescribed whereupon the Partie may plead with the King for his Land and therefore if that course be not pursued in the life of the party it is too late to pursue it after his death Also the words are that he shall seise all the goods and two parts of the Lands of such Offendors But after his death the goods are not his but his Executors and the Lands are not his but his Heirs and a seisure by way of penalty relateth no higher then to the time of the seisure also the words of the subsequent Proviso explame it further for it it be demanded when the King shall seise two parts it is answered at the same time when he leaveth the third part and when must be leave the third part it is auswered in the life of the Recusant That it may be for the maintenance of his Wife Children and Family and after his death he hath neither Wife Children nor Family for in a Writ of Dower the Demandant shall say that she was Wife and not that she is Wife As to the
Greyhound and è conversò and this was ruled to be an imployment for it was whereby or wherewith a Priest was maintained although it was not whereof and Mich. 21. Eliz. the Kings head in Breadstreet now Fishstreet was given to finde a Priest and a rent-charge granted in performance of the Will and this was adjudged an imployment of the house and so where the assignment is good a small thing will make an imployment And it seems that the Liverie is good and as to that that no Livery can be made without ousting of the Lessor and by his consent and therefore 9. Eliz. It is ruled that a Feoffement with a Letter of Atturney to the Lessee to make livery is good and no surrender and Eides and Knotsfords case 41. Eliz. Lessee for years remainder for life remainder in fee he in remainder in fee makes a Feoffement to the Lessee for years and makes Livery and it was adjudged a good Feoffement because it was not a surrender in respect of the meane estate for life and no ouster nor consent will serve for then it would be a disseisin which cannot be upon the possession of the Lessee for years for his possession is also of him in the remainder for life and I put these Cases that there ought to be a consent or ouster but I agree that the Queens possession cannot be defeated by entry or ouster as it is 4. Mar. Dyer 139.8 Ass 21.18 H. 8.16 But the Kings Ward may make an estate 1. H. 7. But if the King be not in possession but a remainder only in him and the Lessor makes a Feoffement rendring 12. d. rent this estate in the King doth not priviledge any other in possession and so judgement was given for the Plaintiff against the opinion of Altham Mrs Chamberlains case IN 22. Eliz. York recovered by Indicement in the Kings Bench against Allen upon an Assumpsit York being thus interessed of the debt after that is in May 26. Eliz. was outlawed upon a mean Proces at the suit of I. S. and in the same year and moneth was outlawed after judgement at the suit of the same I. S. and after a generall pardon came 27. Eliz. in which pardon after the pardon of all contempts for outlawrie there are words also purporting a Grant bounty and liberality whereby the Queen granted all montes forfeited or come unto her hands by reason of any such outlawry with other words in the same pardon and Provisoes therein contained necessary to be observed And after in 28. El. York was outlawed again after judgement at the suit of I. S. and then Yorke died but he lived a full year after the pardon 27. Eliz. and did not sue any Scire facias against the party at whose suit he was outlawed after Iudgement and after the death of Yorke another pardon came 29. Eliz. to the same effect with the pardon in 27. And after the Queen grants this debt to Anger for the benefit of Mrs Chamberlain who was the Wife of Yorke and Anger sued in the Queens name to have an extent out of this Court against Allen who was the party against whom Iudgement was given and all this was drawn into a Case and delivered to the Barons of the Exchequer to consider upon viz. If execution may be sued in the Queens name against Allen and this case was argued at the Barre at which I was present And now it was argued at the Bench by Bromley Puisne Baron and concluded that Anger may well sue execution in the Queens name but he had almost made an end of his Argument before I came into the Court and three points seemed to be considered of in the Case The 1. was unanimously resolved and agreed by all the Barons that either of the pardons will advantage Allen who was debtor to the party outlawed for although that the words of the pardon unport a pardon of all debts and sums of money accrued to the Queen by reason of the outlawry yet comparing all the parts of the pardons together it will plainly appear that the intent of the pardon was only for the advantage of him who had committed the forfeiture by the contempt and extends only to him by way of restitution And another construction would be repugnant to all the Causes contained in the Act By Tanfield as a Will ought to receive construction by due consideration of the intention of the Testator collected out of all the parts thereof so the meaning of an Act of Parliament ought to be expounded by an examination of the intention of the makers thereof collected out of all the causes thes therein so that there be no repugnancy but a concordancy in all the parts thereof and therefore if a man by will devise Bacre to A. and his heirs and by another cause in the same Will he devises B acre to B. and his assignes it shall not be void in any part insomuch that if both had been placed together A. and B. should be Ioyntenants and therefore the Law will make such a construction and so if a man devise B. acre to A. and after he devises a Rent out of it to another both shall stand Brett and Rigdens case Plowden Also this Debt was due by Allen 2. It was resolved by Tanfield and Bromley that Yorke should take no advantage by the Pardon in 27. Eliz. to have his goods restored which were forfeited by the outlawry after judgement for by them all the Statute for the pardon of the outlawry after judgement was penued in such a form as it is but conditionall for it is in effect provided that the pardon shall not extend to the party outlawed after judgement untill he shall pay or agree with the party at whose suit he was outlawed and this payment ought to be in the Court or in such manner that the Court may be satisfied by the suing of a Scire facias and an acknowledgement of the party at whose suit c. for a bare payment in the Country is not sufficient But when the party outlawed hath once lawfully satisfied the party at whose suit he was outlawed then the pardon will relate ab initio to avoid all intervenient matters if the satisfaction be made in convenient time and therefore if the King had granted the goods forfeited by outlawry after judgment meane between the pardon and the suing of the Scire facias yet if the party outlawed sue this Scire facias within convenient time the pardon shall have such relation as it shall defeat the grant of the goods and therefore Tanfield compared the words in the pardon of the outlawry after judgement to the words in the Statute of 27. H. 8. of intolments for there it is provided that nothing shall passe by bargaine and Sale except the Deed be inrolled within six moneths after but if it be not inrolled otherwise it is Beckets case R. B. seised of Lands in fee 36. Eliz. levies a fine c. and
come ceo only of foure Bullaries if this fine and the use of the estate passed thereby shall be directed by the covenant it was the question and it was moved for a doubt what Bullarie that shall be intended whereof the fine is not levied by reason of the incertaintie quaere and it was adjourned Nota that an estreate of divers fines imposed upon several indictments at the Quarter Sessions for several Riots was sent into this Court and the estreat here being mentioned not for what offences the fines were imposed and the records of the indictments were in the Crown office by a Certiorari and the chief Baron Tanfield said that the estreat was insufficient and we ought not to send out Proces upon them because they do not mention the quality of the offence for which the fines were imposed and therefore it may be discharged by Plea yet if the estreat be not warranted by the indictment so that the indictment is discharged for insufficiency in the Kings Bench the Record thereof may be certified into the Chancery and by mittimus transferred hither and we may discharge the estreat and Altham Baron agreed that the partie grieved by such fine upon an insufficient indictment may plead all this matter and spare to remove the Record and if the Kings Attorney will confess the plea to be true it is as good as if the Record had been removed which was not denied An Amercement for a by Law IT was moved for the King upon a lease holden for him that I.S. was amerced 10. l. because he received a poor man to be his Tenant who was chargable to the parish contrary to a pain made by the Township and thereupon Proces issued out of this Court and the Baily distrained and I. S. brought Trespas and it was said by the Barons and ordered that if I. S. will bring an action for the distraining for this amercement be it lawfully imposed or not yet I. S. shall be restrained to sue in any other Court but in this and here he shall sue in the office of Pleas if he will for the Bailiff levied it as an officer of this Court and for the matter Snig said that if I. S. received a poor man into his house against a by Law made in the Township there is good cause of amercement but by Tanfield it is nothing to us that they have a custome to make by-Lawes herein against a by Law made by us also a leet of it self hath no authority to make by Lawes or such an order but by custome it is good Snig and Altham Barons it is good policy to make an order with a pain in a Leet that no person shall receive any such Tenant as shall be chargable to the parish but clearly the Steward cannot amerce one for such a cause without an order with a pain made before Sir John Littletons case SIr Iohn Littletons case was that all the lands of a Monastery were granted unto one Dudley reserving 28. l. rent yearly for a Tenth of all the laid land according to the Statute and after Dudley granted the greater part of this land to Littleton and that he had used upon the agreement made between Dudley and him to pay 20. l. yearly for the Tenth of his part and Dudley had used to pay 8. l. yearly for that which he retained and after Dudley was attainted whereupon his part of the said land came to the King and now the Auditor would impose the charge for all the Tenth upon Littleton but by the Court although the Tenth was Originally chargable and leviable upon all and every part of the land yet it being apparant to them that part thereof came to the Kings hands it was ordered that the land of Sir Iohn Littleton should be discharged before the Auditor prorata and so it was and Littleton to pay only 20. l. yearly Sweet and Beal NOta that in Michaelmas Term 6. Iac. upon a special verdict this case was depending in the Exchequer viz. Anthony Brown devised a term to his wife until the issue of the body of the Devisor accomplish the age of 18. years bringing up the said child Provided that if the devisor die without issue that then the land shall go to the said wife for term of her life paying to the sister of the Devisor 6. l. 13. s. 4. d. yearly which he willed to be paid at two feasts half yearly and that if it be arrear then it shall be lawful for the sister to distrain and to detain the distress until it be paid and the Iury found that the devisor had issue at the time of his death but that the said issue died before he accomplished the age of 18. years and they found also that the rent of 6. l. 13. s. 4. d. payable to the sister was not paid at one day in which it was payable and that no demand was made for it and that Moil Beal who was the right heir entred for the condition broken and made a lease to the Plantiff who being outed by the wife brought an Ejectione firme and Chibborn of Lincolns Inne argued that the entrie of the heir is lawful first he said when he devised to his wife until his heir come to the age of 18. years bringing up the said heir if in this case the heir die within the said age the state of the wife is determined by reason that the education was the cause the land should continue to the wife and the cause being determined by the death of the heir before the said age therefore the estate is also determined and upon that he bouched a case in Mich. 3. Iac. one Collins devised that one Carpenter should have the over-sight and managing of his land until his son should attain the age of 5. years and the son died before he attained the said age and it was agreed admitting that Carpenter had by that devise an interest that it is now determined by the death of the heir to the second matter viz. when it is limited that if the devisor die without issue that then the wife shall have it by that it seems to me that the wife shall not have an estate for life by these words as our case for at the time of the death of the devisor he had issue so that it cannot be said that he died without issue although now we may say that he is dead without issue but in regard that the words of the will are not performed according to the proper intendment of them the Iudges ought not to make another construction then according to the litteral sence the litteral construction being properly the words to bear such a meaning and this as he said may be proved by Wildes case in Cook lib. 6. but more strong is our case because in a case which carrieth the land from the heir there ought to be a strong and strickt and not a favourable construction made to the prejudice of the heir
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
to be paid before induction 20 Forfeiture by Tenant for life by what Acts 38 Forfeiture by a contempt for not returning upon a command by Privy Seale and what and how long the forfeiture continueth an excellent Case 42 43 False imprisonment see Action Fine if void for uncertainty 55 Where it shall be directed by the Covenant ibid G. GRant of the King what shall be a good surrender thereof 1 And what shall be a good consideration therein 4 Where such a Grant is aided by 43. Eliz. cap. 1. ibid Grant by the King of a reversion nec non manerium de Skipton 39 I. INformation upon 3. 4. E. 6. for buying of Butter against two and one found guilty 19 An information against one for refusing to pay Impost for Currants a famous Case 23 An information for ingrossing 1000. quarters of Corne one Defendant found of 700. only 59 Informer where he shall have a moity upon 23. Eliz. but not upon 28. Eliz. against a Recusant 60 Judgement must be paid before a debt to the King 65 Judges if bound to take notice of a generall pardon 71 Injunction to enjoy possession no hindrance to him that claimeth Common therein 96 Information of intrusiion into a Close and for asportation of 9. Cart loads of wheat between the 24. of March and 1. of October the Jury found him guilty of 3. loads the 24. of March and dammages taxed for all no judgement can be given for any part 97 98 Indentures severall with severall powers therein to declare uses how to be expounded 118 119 K. THE King where he may extend for outlawry after alienation 20 The King where he may take without inrolment and what Acts amounts to an inrolment 31 35 60 The King where he shall have his rent of the Assignee in trust in the Interim before a reassignment made 39 The King where he may extend a Term conveyed in trust 50 51 The King shall not charge the successors of a Bishop for a subsidie but the Executor or the heire 51 The King where he shall be ordered in equity to perform a trust by an English Bill 54 King see Judgement 65 King what interest he hath by an outlawry 83 King where he shall have his debt of his Debtor or Trustee 91 King cannot distrain the Cattell of one Tenant in Common for the debt of the other 96 97 King may charge the debtor of his debtors Debtor 112 113 L. LIvery and seifin of Lands in 2. Towns by Letter of Atturney countermanded by livery in one by the Lessor himself 97 Livery if it can be made upon the Queens Lessee 114 M. A Memorandum in the Exchequer and the operation thereof 5 Misnomer of a Corporation where it voids a Grant 15 33 Mistriall and a venire facias de novo awarded 68 Misnomer of a Corporation 35 N. NOtice of an use or promise maketh a man lyable to execute the same 60 Notice see Judges 71 Notice of payment upon a condition ought to be givea to an infant 100 101 O. OYer of a Deed must be demanded the same Term in the Common Pleas but otherwise in the Kings Bench note the diversity 39 Outlawry in Northumberland for a debt in Durham if the King or the Bishop be intitled 90 P. PAtent of Denization what words therein make it conditionall 58 59 Patent where void for false recitall or want of consideration 75 76 and 108 109 Pleas before a Justice of Nisi prius what allowable and what not 81 82 86 Plea discontinued for want of a day given 89 A Parliament pardon the debt being agreed withall relates ab initio 118 R. A Remainder where contingent 22 Rent where it must be demanded and where not 56 57 Record what makes a double matter of Record to make the party sue by Petition 58 59 Recusancie see S. Remitter in what cases 93 94 c. Recusant if chargable for lands bought in trust and if seisible after his death and if liable by 1. Jacobi 104 105 S. THe Statute of 43. Eliz. cap. 1. well expounded 5 c. The Statute of 33. H. 8. cap. 39. well explained 51 Simony in what Cases and excellent matter thereof 71 72 100 Statutes of 23.28 Eliz. and 1. Iacobi expounded concerning Recusants 91 92 Surrender where countermandable 99 Statute of 1. Ed. 6. of Chantries and the meaning thereof amplie debated by the Barons 113 114 T. TIthes where due for Head-land 16 Tithes where discharged by unity of possession 17 Traverse where good 18 Trust where a Recusant convict is capable thereof 39 Tithes a prescription therein for the Kings Coppyholder it must be tried in the Exchequer 39 Trust where forfeitable 54 55 The tenth according to the Statute leviable only upon part of the lands out of which c 56 Tenorem platiti or Tenorem recordi as good as Recordum praedictum 83 A trust in a Term by the Wife belongs not to the Husband after her decease 113 V. USes where fraudulent against a Purchasor 22 Venire facias de Vicineto of a forrest 33 Vses see Indentures 118 119 A Catalogue of LAVV BOOKES and such as appertain to the LAVV. AShes Tables 2. Volumes Folio Ashes Tables to Cooks Reports Epeciea or table of equity Fasiculus Florum Arguments on the Writ of Habeas Corpus Assise of Bread Atturnies Guide Atturney of the Common Pleas. BRooks Abridgement Readings on Magna Charta Cases Reading on the Stat. of Limitations Boultons Justice Bulstrodes Reports Bracton Brownlows Reports 2. parts Pleadings in 2. parts Judiciall Writs Lord Bacons Elements of the Law Cases of Treason Ordinances Reading of the Statute of Uses Britton Book of Oaths Bollewes Reports of R. the 2d Blunts Glossographia expounding Terms of the Law Boones Examen Legum Angliae Cooks Reports 11 parts French 12th Report English Entries on Littleton the first part of his Institutes 1. on Magna Charta 2. Pleas of the Crown 3d. Jurisdiction of Courts 4th Compleat Coppyholder of Baile and Mainprise Cragge de Feudis Customes of Normandie Mr Cooks Vindication of the Law Pooremans Case City Law Cromptons Justice Iurisdiction of Courts Cowells Interpreter Institutes Callis Readings on Sewers Ignoramus Crook and Hultons Arguments on Ship-money Compleat Clerk and Scriveners Guide Calthrops Relation of Mannors and Coppyhold Cases about the customes of London Conference about the liberty of the Subject Clerks Vade Mecum Presidents Clerks Guide in 2. parts Collins Summary of the Statutes Compleat Justice Caries Reports in Chancery Claytons Reports Topick of the Law Compleat Atturney 2. parts Charter of Rumney Marsh Chancery Orders Court Leet DAvis Reports of Impositions abridgement of Lord Cooks Reports Daltons Justice Office of a Sherif Abridged Dyers Reports Abridgement in French Abridgement in English Doderidges English Lawer Principality of Wales Compleat Parson Deggs proposals Declarations and Orders 4º Dr and Student in Lattin idem in English Abridged Davenports Abridgement of Cook on Littleton Deerehams Mannuall Dallison