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
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
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
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
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
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
come ceo only of foure Bullaries if this fine and the use of the estate passed thereby shall be directed by the covenant it was the question and it was moved for a doubt what Bullarie that shall be intended whereof the fine is not levied by reason of the incertaintie quaere and it was adjourned Nota that an estreate of divers fines imposed upon several indictments at the Quarter Sessions for several Riots was sent into this Court and the estreat here being mentioned not for what offences the fines were imposed and the records of the indictments were in the Crown office by a Certiorari and the chief Baron Tanfield said that the estreat was insufficient and we ought not to send out Proces upon them because they do not mention the quality of the offence for which the fines were imposed and therefore it may be discharged by Plea yet if the estreat be not warranted by the indictment so that the indictment is discharged for insufficiency in the Kings Bench the Record thereof may be certified into the Chancery and by mittimus transferred hither and we may discharge the estreat and Altham Baron agreed that the partie grieved by such fine upon an insufficient indictment may plead all this matter and spare to remove the Record and if the Kings Attorney will confess the plea to be true it is as good as if the Record had been removed which was not denied An Amercement for a by Law IT was moved for the King upon a lease holden for him that I.S. was amerced 10. l. because he received a poor man to be his Tenant who was chargable to the parish contrary to a pain made by the Township and thereupon Proces issued out of this Court and the Baily distrained and I. S. brought Trespas and it was said by the Barons and ordered that if I. S. will bring an action for the distraining for this amercement be it lawfully imposed or not yet I. S. shall be restrained to sue in any other Court but in this and here he shall sue in the office of Pleas if he will for the Bailiff levied it as an officer of this Court and for the matter Snig said that if I. S. received a poor man into his house against a by Law made in the Township there is good cause of amercement but by Tanfield it is nothing to us that they have a custome to make by-Lawes herein against a by Law made by us also a leet of it self hath no authority to make by Lawes or such an order but by custome it is good Snig and Altham Barons it is good policy to make an order with a pain in a Leet that no person shall receive any such Tenant as shall be chargable to the parish but clearly the Steward cannot amerce one for such a cause without an order with a pain made before Sir John Littletons case SIr Iohn Littletons case was that all the lands of a Monastery were granted unto one Dudley reserving 28. l. rent yearly for a Tenth of all the laid land according to the Statute and after Dudley granted the greater part of this land to Littleton and that he had used upon the agreement made between Dudley and him to pay 20. l. yearly for the Tenth of his part and Dudley had used to pay 8. l. yearly for that which he retained and after Dudley was attainted whereupon his part of the said land came to the King and now the Auditor would impose the charge for all the Tenth upon Littleton but by the Court although the Tenth was Originally chargable and leviable upon all and every part of the land yet it being apparant to them that part thereof came to the Kings hands it was ordered that the land of Sir Iohn Littleton should be discharged before the Auditor prorata and so it was and Littleton to pay only 20. l. yearly Sweet and Beal NOta that in Michaelmas Term 6. Iac. upon a special verdict this case was depending in the Exchequer viz. Anthony Brown devised a term to his wife until the issue of the body of the Devisor accomplish the age of 18. years bringing up the said child Provided that if the devisor die without issue that then the land shall go to the said wife for term of her life paying to the sister of the Devisor 6. l. 13. s. 4. d. yearly which he willed to be paid at two feasts half yearly and that if it be arrear then it shall be lawful for the sister to distrain and to detain the distress until it be paid and the Iury found that the devisor had issue at the time of his death but that the said issue died before he accomplished the age of 18. years and they found also that the rent of 6. l. 13. s. 4. d. payable to the sister was not paid at one day in which it was payable and that no demand was made for it and that Moil Beal who was the right heir entred for the condition broken and made a lease to the Plantiff who being outed by the wife brought an Ejectione firme and Chibborn of Lincolns Inne argued that the entrie of the heir is lawful first he said when he devised to his wife until his heir come to the age of 18. years bringing up the said heir if in this case the heir die within the said age the state of the wife is determined by reason that the education was the cause the land should continue to the wife and the cause being determined by the death of the heir before the said age therefore the estate is also determined and upon that he bouched a case in Mich. 3. Iac. one Collins devised that one Carpenter should have the over-sight and managing of his land until his son should attain the age of 5. years and the son died before he attained the said age and it was agreed admitting that Carpenter had by that devise an interest that it is now determined by the death of the heir to the second matter viz. when it is limited that if the devisor die without issue that then the wife shall have it by that it seems to me that the wife shall not have an estate for life by these words as our case for at the time of the death of the devisor he had issue so that it cannot be said that he died without issue although now we may say that he is dead without issue but in regard that the words of the will are not performed according to the proper intendment of them the Iudges ought not to make another construction then according to the litteral sence the litteral construction being properly the words to bear such a meaning and this as he said may be proved by Wildes case in Cook lib. 6. but more strong is our case because in a case which carrieth the land from the heir there ought to be a strong and strickt and not a favourable construction made to the prejudice of the heir
and therefore he vouched a case between Scockwood and Sear where a man devised part of his land to his wife for life and another part of his land until Michaelmas next ensuing his death and further by the said will he devised to his younger son all his lands not devised to his wife and adjudged that by the said words the younger son shall have only that parcel which was devised to the wife for life and not that which was devised unto her till Michaelmas and yet by Popham it appeareth that his intent was otherwise viz. that all that should go to his younger son so there ought not to be a strained construction made against the heir and so in our case the words being that if he die without issue c. that then it shall go to his wife herein as much as he had issue at the time of his death it cannot be said that he died without issue but that he is dead without issue and this appeareth by the pleading in the Lord Bartleys case in Plowden and he vouched also a case in the Kings Bench 4. Jac. between Miller and Robinson where a man devised to Thomas his son and if he die without issue having no son there it was holden that if the devisee had issue a son yet if he had none at the time of his death the devisee in the remainder shall have it yet he was once a person having a son and so in our case there was a person who did not die without issue and he vouched also the case of Bold and Mollineux in 28. H. 8. Dyer fo 15.3 when a man deviseth to his wife for life paying a yearly rent to his sister and that if the rent be not paid that the sister may distrain it seems to me that this is a conditional estate in the wife notwithstanding the limitation of the distress and he vouched 18. Eliz. in Dyer 348. which as he said proved the case expresly for there in such a case it is adjudged that the devisee of the rent may after demand thereof distrain and yet the heir may enter for the not payment of the rent although it were never demanded so that the subsequent words of distraining do not qualifie the force of the condition although there be there an express condition and in our case but a condition implyed and he said that it seemed reasonable that such a construction for the distress and condition also shall stand as appeareth by divers cases that upon such words the Law will allow a double remedy and therefore he vouched Gravenors case in the Common Pleas Hill 36. Eliz. Rot. 1322. where a lease was made by Magdalen Colledge to husband and wife so that if the husband alien that the lease shall be void and provided that they do not make any under-tenants and to this purpose he vouched the case of the Earl of Pembrook cited in the Lord Cromwels case Cook lib. 2. where the words amounted to a covenant and a coudition and if this word paying should not be construed to be a condition then it were altogether void and idle and such a construction ought not to be made in a will and he conceived that this rent ought to be paid by the wife without any demand upon the pain of the condition and therefore he vouched 22. H. 6. fo 57.14 E. 4 21. E. 4. by Hussey and 18. Eliz. Dyer 348. vouched before and so it was resolved as he said in the Court of Wards in Somings case where a man made a devise paying a rent to a stranger this ought to be paid without demand and he said that the Common case is proved when a feofment is made upon condition that the feoffee shall do an act to a stranger this ought to be done in convenient time without request by the stranger and so here it seemeth although a demand ought to be made by the sister yet the wife ought to give notice to the sister of the Legacy so that she may make a demand and therefore he vouched Warder and Downings case where a man devised that his eldest son upon entry should pay to the younger son such a summe of money here the eldes brother ought to give notice at what time he will enter to the intent that the younger brother may be provided to make a demand Edwards of the Inner Temple contrary First it seemeth that by this limitation the wife ought to retain the land until the issue of the devisor should have come to the age of 18. years for this a time certain and as it is construed upon such words in Borastons case Cook lib. 3. that the Executors there have an interest certain so it should be construed here to refer to a certainty which is until the time by computation that the issue should have attained to 18. years and the rather in this case in respect the devisor had otherwise disposed of the land until the son should have accomplished the said age Secondly it seemeth that the wife hath an estate for life not conditional in so much as the words are not joyned in the case the 18. Eliz. Dyer hath been vouched but that was upon an express condition but here it is by implication and then the clause of distress taketh away the force of the implication which otherwise might be thereupon inferred and therefore in 5. Eliz. Dyer it appeareth that the word Proviso annexed to other words makes it no condition in judgement of Law and so in 14. Eliz. Dyer 311. and he vouched also 18. Eliz. Dyer Greens case that if a man deviseth lands to his friends paying to his wife with a clause of distress this is no condition as it is adjudged Thirdly it seemeth that this summe to be paid to the sister is a rent and therefore ought to be demanded or otherwise in judgement of Law the condition shall not be broken and the 21. E. 4. the case of an obligation to perform covenants c. and a case between Wentworth and Wentworth 37. Eliz. that a demand ought to be made for a rent which is granted in liew of Dower for the wife brought a writ of Dower for the land of her husband the Tenant pleaded that she accepted a rent out of the land in liew of her Dower and the wife replied that the said rent was granted upon condition that if it were not paid at certain dayes that it should be void and that she should have Dower of the land and she said that the rent was not paid at the dayes c. but shewed not in her pleading any demand to be made and therefore it was holden evil pleading for such a rent ought to be demanded or otherwise the condition is not broken and so here Nota that this case was appointed to be argued again but after as I heard the Barons amongst themselves resolved to give judgement for the Defendant upon one point only which was that the estate
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
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
Rot. 906. in the Common Pleas and this was upon a new and Collateral matter as our case is Trin. 20. H. 8. Rot. 247. or 2447. upon an Arbitrament pleaded and he vouched divers other precedents upon the same point Trin. 3. H. 8. 446. or 466. and 14 H. 8. Rot. and 11. H. 8. Rot. 446. and Mich. 31. H. 6. Rot. 141. and. Hill 33. H. 6. Nota that here it was admitted without any doubt that an Ejectione firmae lyeth of a Mannor although it was said at the Bar that Williams Iustice was of opinion to the contrary the last assises at Norwich and so by all Iudgement was entred for the Plaintiff immediately and a Writ of Error was brought but never prosecuted for the Countesse of Pembrook had day given to remove her goods out of the Mansion House and so she relinquished the possession of all the premisses as I heard Trespasse against Gibson and others VPon evidence to a Iury an Action of Trespass against Gibson and others it appears that the Defendant was Deputy to the Duke of Lenox upon his Patent of Vlnage and that by vertue thereof he pretended to make search of certaine Stuffs called new Drapery which the Plaintiff were carrying to London and at the Town of Ware two or three strangers affirming themselves to be servants of the said Gibson did unpack the said Drapery and laid it in the dirt whereby the Plaintifs were hindred of the sale c. And in this case it was agreed if they as Servants to Gibson without his precedent appointment doe seise the Plaintifs goods and the said Gibson approve them to be seised although his Servants without his consent abuse the goods yet Gibson shall be Trespasser ab initio Also they agreed without any scruple although that the first seisure of these goods be admitted to be lawfull as by the pretence or licence in Law yet the abusing of them makes the originall seisure to be wrongfull and trespass lyeth and therefore in this case although it were not proved that Gibson himself appointed or was privy to the misusing aforesaid yet he shall be charged in dammages and so he was for severall seisures in an Action to 32. pounds viz. 30. l. for one seisure and 2. l. for another seisure and so severall dammages for severall Trespasses in one Action and although that by the abusing of an Authority or licence in facto a man shall not be a Trespassor ab initio but an Action upon the Case lyeth yet for misusing of an Authority in Law Trespass lyeth ab initio for if he who hath power to seise Estrayes will labour the Estray a Trespas lyeth for the seising thereof Bagshews case Hill 4. Jacobi in the Kings Bench. Bromleys Case Hill 8. Jacobi in the Exchequer HUtton Serjeant came to the Bar and shewed that one Bromley had before this time made a Lease for years in County Palatine of Durham of certaine Cole-mines in that County rendring rent 100. l. per annum which rent is arreare for divers years and that Bromley became outlawed here in the Common Pleas for debt at the Suit of Cullamour a Merchant and that the King had granted this debt due upon this Lease for years as forfeited for outlawry unto him And Hutton for the Bishop said that it belongs to him because he had all the goods of men outlawed within his County and if this debt belongs to the King or the Bishop it was the doubt the party being outlawed in the County of Northumberland which is out of the County Palatine of Durham Tanfield chief Baron said that the debt shall follow the person and he said that in 21. Eliz. Vere and Jefferies case it was a question if debt upon a Bond shall be forfeited to him who had such a priviledge where the Bond is and he said that in this case it was resolved that he shall have the Bond and debt who had Bona utlagatorum where the Bond is and so it was resolved as he said in a Case referred out of the Realm of Ireland but here is a bebt which accrueth by reason of a reall contract of goods in the County Palatine and he who is Debtor is the party outlawed but not in the County Palatine of Durham And Hutton Serjeant said that he dad the Rolle of a Case in this Court in the time of E. 3 that the Bishop of Durham was allowed a debt in a more strong case then this is for there a Creditor was outlawed in London and his Bond was also in London and the Creditor was only an Inhabitant within the County Palatine yet the Bishop was allowed this debt Curia put in your Claime and we will allow that which is reasonable and it was adjourned Isabell Fortescues case VPon a motion it was shewed by Coventry that upon a penalty imposed upon Isabell Fortescue for her Recusancy and Inquisition issued and it was found by the Iury that the said Isabell was seised of no Lands but those mentioned in a Schedule to the Inquisition annexed and then expresseth divers particulars in the Schedule without expresse finding that she was seised of them this is no good Inquisition nor finding of any seisin by the whole Court And so by the Court where an Inquisition or Schedule saith that the said Isabell was seised of the Mannor of D. as by information this is not good cleerely for it may be she is seised without information but where it was shewed that upon this insufficient Inquisition divers summes of money were levied and paid into the Kings Coffers that this may be restored The Court answered it doth not appear but that the King may by a new Inquisition have this money justly therefore it shall not be delivered out of the Kings Coffers but if you mone good matter in equity to be discharged in your English Bill you shall have restitution c. Brockenburies case THe Kings Debtor suffered A. to manure his Land and therefore the Sheriff seised the goods of A. for this debt whereupon A. to the intent to have his goods again paid the Fees to the Sheriff and made a Bond to the King to pay the Summe due And now upon a motion and Affidavit that the Debtor himself had sufficient to satisfie the debt due it was ordered by the Court that the Fees taken by the Sheriff shall be restored to A. and that the Bond remaine in the Office here and if this debt can be levied of the lands or goods of the Debtor the Bond shall be delivered to A. but if it fall out that it cannot be levied of the Debtor then the King shall resort to A. upon this Bond and he shall have the assistance of this Court for his reliefe against the said Brokenbury the Debtor Robert Beckets case touching Recusancy RObert Backet seised of divers Lands in Fee in the County of Cornwall upon an Indictment in 28. Eliz. was convicted of Recusancy for 10. moneths next before and died
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