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
REPORTS in the Court of EXCHEQUER Beginning in the third and ending in the ninth year of the Raign of the late KING JAMES By the Honourable RICHARD LANE Late of the Middle Temple an eminent Professor of the Law sometime Atturney Generall to the late PRINCE CHARLES Being the first Collections in that Court hitherto extant Containing severall Cases of Informations upon Intrusion touching the Kings Prerogative Revenue and Government with divers Incident Resolutions of Publique Concernment in Points of LAW With two exact Alphabeticall Tables the one of the Names of the Cases the other of the Principall Matters contained in this Book LONDON Printed for W. Lee D. Pakeman and G. Bedell and are to be sold at their Shops in Fleetstreet 1657. AN ALPHABETICALL TABLE of the names of the Cases contained in this BOOKE A. AIrie against Alcock p. 33 Arden against Darcie p. 68 Sir Anthony Ashleys case p. 83 B. BRet against Johnson p. 1 Bates in an information p. 22 Bently and others against Leigh p. 71 Brown Sir Henry p. 81 86 Bromleys case p. 90 Brockenburies case p. 91 Beckets case touching recâ—sancy p. 91 Bents case p. 96 Beckets case p. 118 C. CAtesbies case p. 3â— Cumberland the Earles case p. 39 Calvert against Kitchin and Parkingson in Simony p. 71 100 Carew against Broughton p. 79 Clare Sir Henry p. 96 Clerke against Rutland p. 113 Chamberlains case p. 117 D. DEnnis against Drake p. 20 Dimoek Sir Edward in an information for intrusion p. 31 35 60 Doille against Jolliffe p. 48 52 E. EWer against Moile p. 83 Edwards case p. 98 F. FOrtescue see Isabell p. 91 G. GIbsons Case p. 90 Gooches Case p. 99 H. HUddlestone and Hills case p. 16 Halseyes Case of Recusancy p. 104 I. INformation See Page p. 19 Information See Page p. 21 Information see Bates p. 22 Information see Dimock p. 31 Jacksons Case p. 60 Isabell Fortescues case p. 91 K. THe King against the Earle of Nottingham and others p. 42 Kent and Kelway p. 70 L. LIttleton Sir John p. 56 Levison against Kirke p. 65 Leazure Sir Stephen p. 100 M. MAior of Lincolnshirs Case p. 16 Mary Reps against Babham p. 17 N. NOrton Sir Daniel p. 74 O. OVerburies Sir Thomas p. 55 P. PAges Case an information p. 19 Phillips against Evans p. 33 Q. QUeens Colledge in Oxfords Case p. 15 33 R. RIchards against Williams p. 18 S. SKelton against the Lady Airie p. 17 St. Saviours in South warke in an information p. 21 Shstabey against Walker and Bromley p. 49 Sweet and Beale p. 56 Sawyer against East p. 74 108 Smith and Jennings Case p. 97 Scot and his Wife against Hilliar p. 98 T. TRollops Case p. 51 V. VAuxs against Austin others p. 59 W. WIkes case p. 54 Worslin Mannings Case p. 58 Wentworth and others against Stanley p. 93 Wickham against Wood p. 113 Y. YOrke and Allein p. 20 ERRATA In page first l. 31. for Nay 1. Noy 37 fol. 32. Hill left out in the Margent untill 37. fol 37. in the margent Tâ—â—th for Trin. 111. for 101. MICHAELMAS 3 Jac. in the EXCHEQVER Bret against Johnson IN an information for the King by the Attorney General against Sir Robert Iohnson for entrie into a house and Close in Buckingham Town called the Parsonage Close in February 4. Iac. upon not guiltie pleaded a special verdict was found to this effect that Queen Elizabeth was seised in fee in right of her Crown of the late Prebends of Sutton Buckingham Horton and Hordley in the Countie of Buck whereof the place where c. is parcel and she 20 Februarie 11. Eliz. granted to Henry Seymor Lord Seymor the said Prebends for life rendring 11. s. 4. for rent and the Iurors say that these Letters Patents by the command of the said Lord Seymor were restored to be cancelled and he being seised pro ut lex postulat Queen Eliz. 21. Mar. 37. Eliz. reciting the former Patent Quas quidem litteras patentes et totum jus statum titulum terminum et interesse de et in praemissis praefatus dominus Seymor modo habens et gaudens surfum rediddit et restituit cancellandum to this intention nevertheless that we should make to him another patent which surrender we accepted of by these presents she by her patent under the great Seal aswell in consideration of the said surrender as for other causes and considerations demised and granted to the said Lord Seymor the said foure Prebends for his life the remainder to Anthony Wingfield for life the remainder to Robert Iohnson for life rendring 90 l. 3 s. 3. d. for rent and they found that there was not any actual surrender or cancellation of the said Letters Patents of 11. Eliz. but restitut ad cancellandum as before the making and acceptance of the second Patent of 37. Eliz. and they found that there was not any Vacat made upon the inrolment of the Patent of 11. Eliz. and they found that 10. April 37. Eliz. Anthony Wingfield and Iohnson granted to the Lord Seymor for 90. years to commence after his death or forfeiture of his estate if Wingfield or Iohnson or one of them should so long live and 20. April the same year the Lord Henry Seymor granted to Sir Robert Iohnson for 60. years to begin after the death of the said Seymor rendring 400. l. rent to him his Executors or assignes the Lord Seymor died 4. Iac. and Sir Robert Iohnson entred upon which entrie this information was brought nay that the Defendant is guiltie and he divided the case into two points First if there be any actual surrender of the patent of 11. Eliz. because there is not any record thereof and the King cannot take by bargain or contract if there be not a record of it as appears by 5. E. 4. and 7. E. 4.6 and Plowden in the Dutchy of Lancasters case for as it is there said it agrees with the Majestie of the King to have a record of things made by him Mich. 3. Jac. in the Exchequer or to him and if a grant is pleaded to be made to the King it is good to say quod non habetur tale Recordum and here is no record but a memorandum made upon it for otherwise leases made by Abbots before the dissolution shall be said to be of record because after the dissolution they were all put in the Tower amongst the records but questionless those leases are not of record because there is not any Memorandum made upon them also in the Lord Latimers case 12. H. 7. in Kelloway where Baron and feme seised in right of the feme in fee granted to the King this is not good if the deed be not inrolled for there they of the other side would have concluded the Tenant to say the contrary but that the deed was inrolled and so by way of admittance confess that a grant to the King is not good if the deed be not inrolled 3. Eliz.
Slade and Morleys case a case was put which proves it to be according Snig Baron agreed that Iudgement ought to be given for the Plantiff and by Tanfield if I take your goods and detain them until I have caused you to pay me 10. l. a general Action of Trespass lieth and not an Action upon the case and it is cited 7. H. 4. or 7. E. 4. to be accordingly but yet he agreed that judgement should be entred and so it was appointed to be done but then Chibborn for the Defendant said that here is a mistrial for if this trust be not material because it is not effectually shewed in the Declaration as you have argued then the Venue shall come only from the parish where the Wares were laid upon the land and not from the parish also where the appointment or trust was made by the Plantiff and therefore the trial also being from both parishes is a mistrial and the Court agreed that this is a mistrial upon that reason for now the appointment or Trust is but an inducement and therefore needs not to be shewed within what parish it was made and therefore a new Venire facias was granted and upon that a new trial and damages more then before and judgement was given accordingly Arden against Darcie NOta a good case of Attornament which was decreed in the time of Baron Manwood betwixt Arden and Darcie and it was this one Arden was seised in fee of divers lands in the County of c. and made a lease for years and after made a feofment with words of Grant of those lands to A. and B. to the use of the feoffor and his wife for their lives the remainder to Arden his son in tail and after the feoffor said to the Lessee that he had conveyed his land which the Lessee held in lease to the uses aforesaid and the Lessee said I like it well and after he paid his rent to the feoffor generally and it was decreed in the Exchequer Chamber that this is no Attornament because the Attornament ought to be to the feoffees and it appeareth not that the Lessee had notice of the names of the feoffees and therefore it cannot be said to amount to an Attornament but notwithstanding that Decree Arden the same to whom the remainder was limited had his Action depending in the Kings Bench to trie the point again as he said to me also this Term a point concerning the said Decree was in question upon another Bill exhibited in the Exchequer Chamber by Sir Edward Darcie against Arden and the case was as followeth Sir Edward Darcie exhibited his Bill here in the nature of a scire facias against Arden to shew cause wherefore the said Edward Darcie should not have execution of a Decree made in the time of Baron Manwood and the Defendant shewed that Darcie in his first suit supposed by his Bill that he had a grant of the land then and now in question from Queen Elizabeth rendring rent as it appears by the letters Patents and in facto there was no rent reserved upon the Patent and that the Defendant gave answer to the said Bill and admitted the Iurisdiction of the Court and after a Decree was made against the Defendant and the Defendant now having shewed this special matter demurred upon this Bill in respect that by his pretence the Court had not jurisdiction to hold plea in the first suit and here it was shewed that the first decree was made upon a matter in Law not properly examinable by English Bill and that in facto the Law was therein mistaken and therefore the Defendant prayed that the decree may be re-examined Tanfield chief Baron it is usual in the office of Pleas that if an action be brought as a debtor of our Lord the King this is good although that de facto no suggestion be made thereof if it be not shewed on the other side and therefore a writ of Error for this falsity shall not cause the judgement to be reversed as it was resolved in a case in which I was of Councel and so here as it seemeth Altham Baron here we are in equity wherein we are not tied to so strickt a course as if it were in the office of pleas Brock of the Inner Temple for the Defendant in a Court of equity it is in the discretion of the Court to deny Execution of a decree if good cause be shewed and in 18. E. 4. fo 1. judgement was given against a married wife by the name of a feme sole and reversed although she did not shew in the first suit that she was married and in 8. E. 4. judgement was given in the Kings Bench in a suit and by writ of error was reversed although the Defendant had admitted the Iurisdiction of the Court and the chief Baron and all the Court inclined that Arden may exhibit a Bill to reverse this Decree made against him and may shew what point in Law the Iudges mistook in the Decree or otherwise we should not do as Law and Iustice requireth for it is not expedient to be examined by way of Bar to this Bill in the nature of a scire facias and after Arden according to the Decree of the Court and their direction did exhibit his Bill in the nature of a writ of error Comprising how the first decree was erroneously made and prayed that the said decree might be reversed and in his Bill he shewed the point in Law which was decreed and that upon divers long conveyances appears to be thus and so it was agreed by Councel on both parties that Arden the father was seised of the Mannor of Cudworth in the County of c. and was also seised of the Mannor of Parkhal in the same County and of Blackclose c. which was parcel of the Mannor of Cudworth but lying neer unto Parkhal and alwayes used and occupied with it and reputed parcel thereof but in truth it was parcel of Cudworth and that Arden the father made a Conveyance of the Mannor of Parkhal and of all the lands thereunto belonging and reputed as parcel thereof or occupied with it as part or parcel thereof and of all other his lands in England except the Mannor of Cudworth to the use of Arden his son that now is Plantiffe here and if Blackclose will pass to the son by this conveyance or if by intendment it shall be excepted by the exception made it was the question here and was decreed in the time of Baron Manwood that it is excepted by the exception but all the Barons now thought it to be a strong case that Blackclose is not excepted by the exception of the Mannor of Cudworth and so the first decree was upon a mistake out of the Law and Tanfield chief Baron said that the point is no other but that I infeoffe you of Blackacre parcel of the Mannor of D. exceyt my Mannor of D. this doth not except the King
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
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
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
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
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
of the 28. Eliz. according to this opinion there was a judgement now lately in the Common Pleas as the chief Baron Tanfield said but if a Recusant be not convicted of Recusancy an informer may have advantage against him according to the Statute of the 23. Eliz. notwithstanding any thing in the Statute of the 28. Eliz. Jacksons Case UPon a motion made by Sir John Jackson in a suit by English Bill between Jackson and another Tanfield said that it had been decreed in the Chancery betwixt one Gore and Wiglesworth that if A. agree with me to lease black-Acre for certain years to me and after before he makes my lease according to his promise he infeoffes B. of that Acre for a valuable consideration and B. had notice of this promise before the feofment made unto him now B. should be compelled in the Chancey to make this lease to me according to the promise and by reason of his notice and so the Court agreed upon a motion made in the like case by the said Jackson for as before the Statute of 27. H. 8. a feoffee upon valuable consideration should be compellable in the Chancery to Execute an use whereof he had notice so here Sir Edward Dimocks Case argued before BRomley the puisne Baron thought judgement should be given for Sir Edward Dimock against the King for the matter in Law he argued but three points First that the lease made to Queen Elizabeth in the year 26. is not good clearly without a matter of Record for although that he agreed that personal Chattels may be conveyed to the Queen without matter of Record yet Chattels real can not for they participate in divers qualities with inheritances and freeholds and therefore if a man possest of a Term for years demiseth it to A. for life the remainder over to B. that this is a good remainder adjudged now lately in the Common Pleas but otherwise it is of Chattels personal as it appears by 37. H. 6. the case of the devise of a Grail Secondly the acknowledgement of the lease before Commissioners and the prayer of the Bishop to have it inrolled makes it not a record before inrolment for it appears by the 21. H. 7. that if the Sheriff by vertue of a writ doth any thing yet it is no matter of Record until it be returned and so is the 9th of Ed. 4. fo 96. that if the Phillizer of a County enter Process of outlawry in the room of a Phillizer of another County this is not a Record in judgement of Law although that it be a thing recorded and so he conceived that it was no sufficient Record in regard the Commissioners have not certified this recognizance and the prayer of the Bishop Lessor in the life of the Lessee and Lessor whereby as he said he admitted that if this were certified by the Commissioners in the life of the Lessor and Lessee that then without inrolment this had been a sufficient record to intitle the Queen who was Lessee Thirdly he argued that the inrolment subsequent in this case in time of the King that now is maketh not the lease good which was made to the Queen for he thought that the interruptions hindred the operation of this lease by interruptions he meant the death of the Bishop Lessor and of the Queen Lessee as it seemeth and the lease in possession of Sir Edward Dimock by force thereof without inrolment and therefore he said it was adjudged if a man covenant to stand seised to the use of his wife which shall be and there he makes a lease of the land and then takes a wife this lease by him is such an interruption that the use shall not arise to the wife but in Wintors case in Banco Regis 4. Jac. and also in Russels case although it seemed to be there agreed that the lease for years should be good yet it was not resolved but that the wife may have freehold well enough by vertue of that Covenant and he also vouched and agreed to Bret and Rigdens case in Plowden Com. where the death of the devisce before that the devisor died did frustrate the operation of the will and so of the death of the Queen being Lessee also he vouched the Duke of Somersets case 19. Eliz. Dyer 355. First as to the exceptions taken to the Bar by the Attorney general which were two it seemed to him that notwithstanding them the Bar is good for whereas it was objected that the Bar is that the Commission and acknowledgement of the lease were not returned by Hamond and Porter who were the two Commissioners who returned it to that he answered that the information mentions the acknowledgement and the return before them two and therefore there needeth no answer to more then is within the information also it cannot be intended to be returned by the other two Commissioners in regard that they were only to the connizance Secondly as to the other exception viz. that where the information saith that May Bishop of Carlisle by his certain writing of demise had demised c. for the Bar is that the said Bishop made a certain writing purporting a demise c. that this shall not be intended the same writing mentioned in the information and 6. E. b. Dyer 70. Ishams case for Ilebrewers Park vouched in maintenance of this exception and he said that it cannot be intended but that the Bar intends the same demise mentioned in the information for here the lease mentioned in the information and the lease mentined in the Bar agree in eight several circumstances as it was observed by the Councel of Sir Edward Dimock see the argument of Bandrip and 1. H. 6. fo 6. where a scire facias was brought against I. S. the Sheriff returned that according as the writ required he had made known to I. S. and doth not say the within named I. S. Altham Baron accordingly as to the matters in Law there are five points to be considered in the case First he said that the making of the lease to the Queen without acknowledgement is not good nor matter sufficient to intitle the Queen and he vouched 5. E. 4. fo 7. and 7. E. 4. fo 16.4 H. 7. fo 16.21 H. 7. fo 18.1 H. 7.17 and 3. H. 7.3 the same Law when awardship is granted and so an use cannot be granted to the King without matter of Record 6. E. 6. Dyer 74. that the Kings Lessee for years cannot surrender without matter of Record Secondly it seemeth that the confirmation of the Dean and Chapter is good notwithstanding it wanteth inrolment and notwithstanding the confirmation made before the inrolment and so before the being of the lease for here is only an assentor the Dean and Chapter for the Bishop hath his land in right of his Bishoprick and an assent may be aswel before the lease as after insomuch no interest passâ—th so also may an attornement be good before a grant of the reversion