is punishable by sub poena as well as the Feoffee 11 E. 4. 8. sub poena 13. consc. 17. 28 A sub poena was sued against two sons and heirs of gavel land to compell them to make an Estate of the land of which the Complaintiff had infecffed their father and others to his use of whom their father was the Survivor the Defendant said that the common voice of the Country is that the Feofment was to the use of the Complaintiff and of his VVife and of the Heirs of their two Bodies begotten who have Issue therefore they prayed a VVrit to warn the Issue and upon the VVrit the issued appeared and shewed that he was under age and prayed that the matter might stay untill he came to age and the Chancellour by the advice of Laicon and Littleton Iustices awarded that the matter should not stay because he was not seized of the Land by a Discent wherefore the Issue by his next Cousin declared his Title 14 E. 4. Age 20. 30 Note that a sub poena doth lie against the Heir of the surviving Feoffees 14 E. 4. Sub. 14. 31 A sub poena was brought against three Feoffees upon trust to compell them to execute an Estate to the Complaintiff one of them said that the Complaintiff made a Feofment to the other two in his absence to the behoof of all three and he died never agreed to the Feofment and the Land is holden of him so that he cannot execute an Estate but that he shall extinguish his own Seigniority and therefore he disclaimed in the Land and it was allowed to be a good answer per curiam Cancellarii 16 E. 44. sub poena 18. 32 If I and another do submit our selves to an award and it is awarded that I shall cause my Feoffees in trust to release to the other being in possession I may compell my Feoffees by sub poena to fulfill the award per omner Iustic. in communi banco 17 E. 4. 4. 33 A VVoman made a Feofment upon confidence and afterwards took a Husband and in her Death-bed she made Testament that her Feoffees should make an Estate to her Husband and to his Heirs the VVoman died and the Husband sued a sub poena to compell the Feoffees to perform her Testament and it was ruled that the Testament was void and that the Feoffees were not compellable to perform the same for Law and Conscience do allow nothing to be good which is done by VVoman Covert concerning her Inheritance except it be by Fine leavied where she is openly examined in the Court for this Testament would be a Disinheritance inheritance to her Heir but she may make her Testamet of Goods and make Executions by consent of her Husband per Cancell omnes Justic. uno tantum excepto And Vavasor shewed to the Court that Anno 7 E. 4. a VVoman Covert having Feoffees upon trust she and her Husâ—and sold the Land and she received the money and afterwards the Husband died and she sued a sub poena and it was adjudged to be a good sute 18 E. 4. 118. consc. 28. b. Testament 13. 34 The custome of Kent is that an Infant of fifteen years may sell his Land and the case was that an Infant made Feoffees upon trust and afterwards being above fifteen years old he willed the Feoffeâ—s to make an Estate thereof to him and his VVife in tail and the question was whether they were compellable by sub poena to do it or no and it was holden that the Feoffees were not compellable because the Infant cannot will his Land by the custome for the custome is onely of Sale and is always to be construed strictly according to the very words also at the Common Law such a VVill made by the Infant of Lands is void and so it is in conscience per Littleton Jenney omnes socios Justic. 21 E. 4. b. Testament 17. 35 Note in Burgh English land where the youngest shall inherit if the Father make a Feofment upon trust the youngest son shall have the use and the sub poena and so it is of Gavel-kinde land where all the Brothers do inherit per Dig. App. 21 E. 4. 24. b. Testament 17. 36 Hussey chief Justice of England said that when he came first to the Court which was about thirty years past it was holden by all the Court that if one infeoffed another of trust which died seized so that his Heir were in by Discent no sub poena should lie against the Heir for the same reason a sub poena might be against the Heir after two Discents which were inconvenient but the Chancellor said that there are Presidents in the Chancery that a sub poena doth lie against the Heir in Cam. Scacc. 22 E. 4. 6. b. consc. 23. 37 If a ftoffee upon confidence make a feofment to one that hath knowledge of the confidence the feoffer shall be restored again in the Chancery otherwise it is if the purchasor had no knowledge of the confidence per Cancel 7 H. 7. 12. sub poena 18. 38 The Feoffees upon trust of an Infant may grant all ordinary Offices for term of life as Steward Bailiff and Receiver and they shall have allowance thereof in their Accounts when they are called to account in the Chancery but they cannot grant any fees for term of life without the assent of the Heir when he is of full age per Hussey Brian cap. Just Ang. But Keble Serjeant said that if the Feoffor were able and willing to be Bailiff or Receiver himself or if that there were need of any Steward Bailiff or Receiver then he might repeal the Grants by sub poena also it was agreed that the feoffees might defend the Land in all sutes with the profits thereof and should have allowance thereof in Counsel 8 H. 7. b. Ftofments al uses 12. 39 Note it was adjudged that a VVoman Covert Executrix might make sale of her lands to her Husband and that it is a good Bargain and the feoffees upon trust are bound to make a feofment accordingly and in this case because three feoffees did the contrary they were committed to the Fleet 10 H. 7. 20. This is to be understood where the Land was devised to the Woman being Executrix to the intent to be sold for the performance of the VVill of the Testator 40 Certain feoffees were seized to the case of Sir Richard Rooe for life and afterwards to the use of others and the feoffees made a feofment in fee to Sir Richard Rooe the question was whether Sir Richard Rooe had forfeited his Estate or no and Hussey and Brian chief Justices agreed that it was no forfeiture by the common Law for no mans Reversion is discontinued continued thereby otherwise it is if Tenant for life of land had made a feofment to a
6. Decree Parlament Error Brook Petition Iudgement Record 27 H. 8 Decree tho same Court Parlament Order good cause absolute decree definitive appellation 2 R. 3. patent scirefacias error the same court reform Revocation 2 R. 3. patent scire facias error the same court reform 18 E. 3. Stat. Merchant Kings Bench 13 Eliz. common Law 6 E. 4. Coparceners Covin. Doct. Sâ—ud Iointenant all the profit Conscience Law Doct. Stnd. eldest son Gravel-kinde all children Law Custome Present in Sect. Tent curâ—efie claim fee-simple Charters Dismission 3 H. 9. Rem of use use for life Release 31 H. 6. Revocation of will Revocation of use quid pro quo fall into poverty Special cause Son born Felon after feofment Felon 15 Eliz. 3 H. 6 use after feofment Enfeoff a stranger second Feoffee Damages bona fide trust 33 H. 6 Enfeoff strangers bona fide second feofment refuse to infeoff 33 H. 6. pet. in law Outlawed Clerk attainted outlawed of treason next heir 37 H. 6. Refuse to infâ—off Imprisonment 37 H. 6. Will 2 Feoffees Notice commandment 37 H. 6. 37 H. 6. refuse to take Remainder Refusall by Tenant for life Testament Dissâ—izin in assize â— E. 4. Obligation refuse to take 5 E. 4. Youngest son 5 E. 4. Mothers side heir of the fathers side 5 E. 4. Remainder Tenant in tail declare Testament Common Law 5 E. 4. Husband and Wife no consiâ— use not expressed 4 E. 4. Half bloud Take profits Possessio fratris 4 E 6. estate for life for years 5 E. 4. Attainder Felony Escheat 5 E. 4. 7 E. 4. King use void 7 E. 4. Husband and Wife Receive money cui in vita Coverture Prison satisfact. Feoffee Notice 7 E. 4. Plead Actions câ—â—ts Dilatories 8 E. 4. Heâ—â— Parlament 9 E. 4. Payment Tender Refuse to re-infeoff 11 E. 4. 8. 13. consc. 17 14 E. 4. Heirs gavel kinde common voice Age Discent Next Cousin 14 E. 4. Heir Agree Lord Extinguishment Disclaimes 17 E. 4. Award Release Testament Coverture Fine 20 E. 4. Custome Infant Sale Custome Strict 21 E. 4. Burgh English youngest son Gavel-kinde 22 E. 4. Heir Discent President 7 H. 7 Notice Feoffee 5 H. 7. Infant Offices Account Fees Assâ—nt Defence Sutes Allowance 10 H. 7. Coverture Executrix Sale Fleet 10 H. 7. use for life Forfeiture Discontinuance Reformation 10 H. 7. Injunction Infeoff Refeoff Die seized 4 H. 7. â—Refâ—off 15 H. 7. Testament sell Specialtie named Debts Creditors Distributed Executors refuse Administration Ordinary Administrator Testamentory Executors Executors Heirs 14 H. 7. Testament Specialty named second Feoffees 14 H. 8. Pleas refuse Voucher Action de case without Heir within age attainted Eschete Lord 14 H. 8. Office without Heir within age Lord Dower Stat. Merchant Notice Particeps criminis consentientur fraus 27 H. 8. Burgh English Gavel-kinde 14 H. 8. Common Law Creation Relief Desire of Feoffer 14 H. 8. Sâ—igatory Escheats Recovery in value 19 H. 8. Executor Executor of Executor Refnse Administ Ch. Iustice Resignation Heir â—R 3. H. 8. H. 8. Testament Revoke use Expressed upon Livery 30 H. 8. Covenant Notice Springing use Sale Temps H. 8 Fundamentum legum imperpetuum 34 H. 6. Pet. in Canc. Sale Profits Executor 32 H. 6. Put out Lord 22 E. 4. Statute Merchant Payment Release Witnesses Record 7 H. 7. Statute Merchant Recovery Termor Falsifie Covin. 7 H. 7. Recovery Receipts Termor In Prison Beyond Sea 3 Mâ— Use Lease Stat. 3 H. 7. Fraud Creditors 37 H. 6. Debts Obligation Things in Action No remedy 39 H. 6 Treason Attainder King No remedy Detinue Forfeiture Seisure Record Court Possession Things in Action Inventory Fleet 8 E. 4. 3. Procurator Save harmless Notice Oath Court Christian Affiance Damage Promise Folly 8 E. 4. Executors Answer One Executor Abate Bill Notice Ignorance 9 E. 4. Obligation Forreign County Action Pleas 9 E. 4. Obligation Receive part Longer day Discharge Election Respite Sute Payment by one 16 E. 4 Defraud Gift Sanctuary Husband and Wife 16 E. 4. Surety Goods Double charged Injunction 22 E. 4. Statute Merchant Witnesses Record Obligation Acquittance Common course Presidents 22 E. 4. Recovery Payment Release Acquittance Record 4 H. 7. One Executor Release Testament Sine remedia Common Law Chancery Consoience Gods Law Restitution Willing Damned Joint power Pro salute animoe Mispend Argue 7 H. 7. Obligation Acquittance Bar 7 H. 7 Simple Contract Debt Executors 20 H. 6. Petic in Canc. Goods Trust Promise Sale Detinue Wager of Law Damages Doct. Stud. Obligation Payment Acquittance Stat. 27 E. 3. Stat. 31 H. 6. Robbery Spoil Sea-ports Subject 2 E. 4. Obligation Sue 4 E. 4. Money Obligation Administrators 7 E. 4. Goods Trespasse Appeal of Robbery Oath Combate 7 E. 4. Stat. Staple One releaseth Notice Covin. Fraud Deceit Discharge Goods Notice Sale Purchase Policy Payment to one Stat. 27 E. 3. Merchant Robbery Sea Proof 2 R. 3. Chancellor alone Stat. 27 E. 3. Staple Debate Stat. 31 H. 6. Sea-port Amity League Truce Safe Conduct Attachment Robbery Delivery Restitution Justice Possessioneâ— Costs Expences Execution 2 R. 3. Assistant 13 E. 4. Star-chamber Felony Safe Conduct Law of Nature De â—oram hora Statutes Juris Naturae Law Merchant Safe Conduct Enrolment E. 4. Statutes Notice Forfeiture 13 E. 4. Denisen Sutes Alien 13 E. 4. Safe Conduct Robbery Waive Pursue the Law King 〈◊〉 In corpore In bonis Covenant 19 E. 4. League Common Law Real Actions Enemy Safe Conduct Open War 2 R. 3. Star-chamber Robbery Sea Possessions 27 E. 3. League Kings obedience Enemy Restitution 1 H. 5. Additions Clerk Fine Stat. 2 H. 5. Murthers Fly Stat. 8 H. 6. Certificate 33 H. 6. This granted by Pet. in Canc. English Bill 33 H. 6. 1. part Stat. 4 H. 7. Justice of Peace Stat. 11 H. 7. Poor People Stat. 18 Eliz. Rochester Bridge St. 21 H. 8 St. 14 H 8 Merchant Strangers Search Stat. 33 H. 8. Faâ—se token or letter 37 H. 8. Tithes in London Stat. 31 E. 3. Fish Wines Stat. 19 H. 7. Corporations Ordinances Stat. 14. H. 8. Aliens Stat. 22 H. 8. Scavage or Chevage Stat. 25 H. 8. Prises of Books 28 H. 8. Prices of Wines Stat. 34 H. 8. Banckerupts
Fleet-lane it is thus written Tot erant formulae Brev. quot sunt genera actionum quia non poterit quid sine bre agere praecipue de libero tento suo quia non tenetur quis respondere sine brevi nisi gratis voluerit cum hoc secerit quis ex hoc ei non injurabitur volenti enim scienti non fit injuria 13. By this it is to be collected that the right and possession of land may be decreed in the Chancery in a sute commenced by the parties consent as appeareth also by a President following 14. Agnis Lumbard being expulsed without proces out of Tenements in Beverley by Thomas Lumbard they submitted themselves to the Decree Order and Award of Michael De la Polle Earle of Suffolk Lord Chancellor who by writing under his Seal decreed that she should have the Tenements rents and arrerages thereof during her life and an Injunction Subpoena was awarded to the tenants to pay the rents and arrerages accordingly and to certain tenants unto whom Tho. Lumbard had leased against the will of Agnis that they should not meddle any more therewith or else they to shew cause to the contrary in decimaquinta pascha also it was then decreed by the advice of Robert Belknap chief Iustice of the Common-pleas and of John de Waltham Master of the Rolls and others that she should be put it full and peaceable seiz in thereof whereof a Writ Patent by warrant of the Counsell was directed to the Bailiffes Aldermen and Burgesses of Beverly to put her in seizin and possession and to defend her therein claus. Anno 9. R. 2. pro Agnet Lumbard CHAP VI Whether the Chancellor may intermixe his power absolute with the ordinary 1 IF an attachment of Privilege be sued against an Attorney in the Chancery this attachment is in the nature of an action at the common law and the Chancellor said that in that sute he had two powers one as a Iudg temporall another as a Iudge of Conscience for if it appear unto him upon the matter shewed in the sute that there is conscience he may judge thereof according to Conscience but all the Iudges said that he might not ludge aecording to Conscience because it is to be ruled according to common law and if there be Conscience in the matter then the party grieved may exhibite a bill thereof and in that the Chancellor may judg according to conscience 8. E. 4. 66. consc. 15. jurisd. 112. 2. One was bound unto I S. and I D. in a star staple and I S. released afterwards I S. not knowing thereof sued execution the Debtor sued an Audita querela and upon the scir. fac I S. and I D being demanded in the Chancery I D. made default and that was ruled to be a default in them both Yet this being the Court of Conscience we as well judge according to conscience as to law and it were against conscience that he which had no knowledge of the release should pay damages But Chock Iustice said that in this case they are and must be Iudges only according to Law and the Master of the Rolls said he would be advised 11. E. 4. 9. b. dammages 3. One traversed an office in the Chancery and being at issue was sent into the Kings Bench to be tryed the party came and shewed that the King had granted the Land before so he should have had a scir. â—ac against the Grantee wherefore he pursued not his Traverse and it was demanded of the Justices if he might have a scirâ— fac out of he Chancery upon the first Traverse and they all answered that he might because that in pleading a default of form should not in any case be prejudiciall in the Chancery for it cannot be called a Court of conscience if the act of a Clerke in pleading should cause the party to lose his sute and his expences 4. In Camera Scaccarij 14. E. 4. 76. traverse d' Office 39. 6. jurisdict. 76. Upon Petition made to the King and by him delivered over to the Chancellor to do right appeared that the Kings Tenant being Tenant in Taile had granted with warranty Lands and an advowson to a College and that the King had Presented by colour of the Wardship of the Heir contrary to the grant and the Incumbent pleaded for the King That the Heir had no Lands discended from his Father and that the Wardship was no Barre but because it appeared by divers Offices returnd into the Court that Lands to the value of 1000. markes were discended to the Heir Therefore the Court awarded in Conscience That the College should be restored to the Presentation without tryall by Jury that the same assetz did discend 43. ass p. 21. Agr. 75. Hereby it appeareth That although the Chancellor may not mix his absolute power with the ordinary concerning the right of the cause yet he may somewhat use the same in matters of expedition of proceedings CHAP. VII The form of the Pleadings ONe sold certain Wool to I S. and I D. for 3. l. and I S. had all the profit thereof and they were bound in severall Obligations Afterwards the Creditor sued I D. the surety upon one of the Obligations being 300l who sued a Subpoena and shewed in his Bill that the Creditor was satisfied of a great part and had given long day for the rest and exception was taken to the bill by Catesby Aâ—prentice because that the Complalntiffe alleged that a great part of the whole summe was paid and shewed not how much was paid and it may be that the money paid was for other obligations and not for this also he hath not shewen what day was given to I S. The Chancellor said that it did not lye in the notice of I. D what summe was paid or what day was appointed and therefore he cannot declare it but it must appear upon the examination of the Defendants confidence but he shall shew certainly such matter as lyeth in his knowledge Also in this Court it is not requisite that the Bill be all certaine according to the solempnity of the Common law for it is but a Petition 9. E. 4. 41. Subp. 12. et b. Conse. 3. 2. Note that the Chancellor said that a man shall not be prejudiced by mispleading or for default of form but according to the verity of his matter and the Chancellor must judge secundum conscientiam non secundum allegat For if the Complaintiffe suppose by his Bill that the Defendant hath done him wrong a d the Defendant answereth nothing yet if the Chancellor have knowledge that the Defendant did no wrong to the Complaintiffe the Complaintiffe shall not recover any thing 9. E. 4. 14 Snbp. 1â— jurisd. 51. Consc. 26. 3. Mispleading nor default of form shall not be prejudiciall to the Chancery omnes Justice in Camera Scacc. 14. E. 4.
Decree made in the Chancery by sub Poena the party may have a writ of error in the Parliament to recover the same if it be erroneous in such sort as he may have to reverse Judgements erroneously given in the Kings Bench per Chock Serjeant 37 H. 6. 3. Iurisd. 53. error 95. But note that Brook abridgeth the case that Prisot the chief Justice was of the contrary opinion which is not to be so collected by the book but by implication yet may it seem that no writ of error doth lie but a petition to the Parlament in the nature of a writ of error but Prisot said that Judgements in the Chancery upon scire facias to repeal Parents and pleas or persons priviledged are reversable by Parlament because they are Judgements but the decrees are not 2. Cholmly Serjeant said if a decree be made in the Chancery that the Chancellor hath not power to reverse that decree in the same Court but it must be redressed in the Parlament for Judgement given in the Kings Bench Common-place or Exchequer are not reversable in the same Court but in a higher Court But Knightley Serjeant said that a decree was but an Order taken by the Court for the time the which upon good causes shewed may be redressed in the same Court hut Devistall Serjeant said that if it might be so there would be an incessant confusion of all causes wherefore the Chancellor cannot reverse an absolute Decree but he may reverse a Decree which is made with a quousque for an absolute decree is much like a definitive sentence given in the spiritual Court which cannot be redressed in the same Court but by application into a higher Court and the Kings Secretary interrupted him to speak any further of the authority of the Chancery In Cancell 27 H. 8. 6. In a writ of error to reverse a Judgement of petition in Chancery the Defendant took exception that the Judgement given in the Chancery might not be reve sed in the Chancery being all one Court but in the Parlament Et non allocatur exception per Cur Cancell 42. asss. p. 22. b error 131. It seemeth that this was not properly a reversall of the petition but rather and is like to the case ensuing I the Lord Chancellor grant a patent of land and after make a patent to another of the same land the second patent is revocable in the Chancery by scire facias but not by writ of error for a Court may reform but not reverse their own Judgements 2 R 3. A statute Merchant was acknowledged in the Chancery the money payable Anno 16. and the party sued execution and his writ supposed the same to be payable Anno 14. and by this sute the Feoffee was put out of power and he sued a writ of error in the Kings Bench and it was awarded that he should be received to the sute 18 E. 3. 25. error p. 17. asss. p. 24. And Plowden reciting the case saith that if upon sutes in the Chancery according to the order of the common Law there be error that shall be reformed by a writ of error in the Kings Bench which is a higher Court 13 El. Com. 393. The Second Part of the Absolute Power CHAP. I. Of Lands IF two Copartners bring a Formidon and one of them by Covin between the Tenant and him will not joyn with the other in a true Declaration the other may compell her by such poeâ—a to joyn in the true Declaration for else the Action would abate per Mâ—â—le Iustice Ienâ—ey Serjeant in Co. Ba 6 E. 4. 10. b. consâ— 12. 2. If two men have a wood jointly and one of them felleth the wood and keepeth all the money to himself his fâ—llow hath â—o remedy by the Law for as when they took the wood joyntly they put each other in trust and were contented to occupy together so the Laâ— suffereth them to order the profitâ— thereof according to the trust that each did put in other and yet if one took all the profits he is bound in conscience to restore the half to his fellow for as the Law giveth him right onely to half the land so it giveth him right onely in conscience to the half profits and yet it cannot be said that the law is against conscience for the Law willeth not that one shall take all the profits but leaveth it to their conscience Lib. Doct Stud. cap. 19. 3. In many cases conscience shall be ruled after the Law as the eldest son shall have his fathers land by conscience as he shall in law and so he shall in law and so in Burgh English the youngest son shall enjoy the land both in law and conscience and in Gravel-kinde all the sons and daughters shall inherit together and there can be no other reason gives why it should be so in conscience but because law or custome is so lib. Doct. Stud. 2. c. 15. for divers good causes upon that ground 4. Tho. Parrick and Agnes his wife exhibited a bill conteining that one Beatrice whose heir Agnes is was seized and took to husband Thomas Bradley present in the Court and dyed Bradley continued as Tenant by the curtesie of England untill now of late he claimeth and publisheth that he hath fee-simple and withheld the Charters wherefore they prayed that he might he examined what estate he claimeth and to be recorded and to knowledge what Charters he hath to deliver them to the complainants defendant Dâ—smissum est à curia quietus sine die per consi cur co qd materia in hac supplicatione contenta non est sufficiens ad pâ—nendum ipsâ—m defend ad examinat super â—undem petition Pet. in Canc. 20 H. 6. the defendant hath authority by law to keep the Charters and although in words he claimeth fee-simple yet because it is not alleadged that he did not any act to the dis-inheritance of the complainants therefore it seemeth he was dismissed CHAP. II. Of Lands in use or trust LAnds in Lond. were devised to the devisors son and three others in fee and that one of them should have the profits during his life the devisor dyed the son and heir sued a sub p against the two others to compell them to release unto him because the use of the land ought to be in him after the death of the per â—or and it was thought reasonable per omnes Justic. in camera Scac. 3 H. 6. devise 22. 8 feofment al uses 49. So it is if the same had been done by Feofment 2. Onâ—â—made a Feofment upon confidence and afterwards declared his will to the Feoffee that one of the daughters should have the land after his decease and after that he came to the Feoffee and told him that his said daughter would not be
married by him and therefore he revoked his Will and willed that his other daughter should have the land by conscience Laicon when he made his first Will the first daughter had presently an interest in the land which he would not defeat as if one make a Feofment to the use of a stranger he cannot afterwards revoke that use Illingworth there appeareth not any cause why the first daughter should have the land and therefore seeing the Feoffor had not quid pro quo it is no bargain but of his meer will which he may by good conscience change as if the Feoffor had afterwards fallen into poverty he might with good conscience compell the Feoffee to re-feoff him again Prisot ch. Justice of the Common-pleas when the Re-feoffor had once declared his Will and willed the land to his daughter the Feoffee standeth presently subject to the will of the daughter and is discharged of the Feoffee and such a Will is as strong as a Feoffee which is annexed to a Livery of Seizin Fortescue chief Justice of England the Feoffor may have his will if there be special cause otherwise not as if after the first Will the Feoffor had a son born he might well have changed his Will and given it to his son and heir for there is a reasonable cause of his claim and so it is if the daughter had become a Felon 35 H. 6 sub poena 3. Stac consc. note that the better opinion is conceived to be that he may revoke the first Will 15 Eliz. Dyer 3. 25. 4. Note it was agreed if any infeoff another he may declare his Will unto him afterwards and appoint the use to whom he will 31 H. 6. sub poena 23. Stach consc. 5. If I infeoff one to perform my last Will and himself a stranger I have no cause of sub poena against the Feoffee but I may sue my first Feoffee and recover in damages for the value of the land per Yelverton Wilby Clericis Rotulorum and this is meant where the second Feofment is made bona fide in which cause I have no remedy for the land and so it was adjudged in the Cardinal of Winchesters case but if the second Feofment had been also upon trust then I might recover the land by sub poena against the second Feoffee 31 H. 6. sub poena 19. Stach sub poena 6. If I make a Feofment upon trust that the Feoffee shall infeoff my heir when he cometh to full age and the Feoffee infeoffeth a stranger bona fide to the intent to disinherit inherit my heir there the trust is deteined and the heir is without remedy against the second Feoffee by sub p. or otherwise but if the Feoffee had retâ—ined the land himself and refused to infeoff the heir at his full age he might have compelled him thereunto by sub poena per Dunby Just in com banco 33 H. 6. 15. 7. Richard Frank made Feoffees to the use of the last Will of him and Agnes his wife and they dyed having issue John and Izabel John was outlawed of murther and also delivered to the Abbot of Westminster as a Clerk attainted for robbing a boy called a Monstral out of the Church of the Prioress of Clerken-well and lastly was indicted and outlawed for Felonies and Treasons and during his life Isabel sued a sub poen against the Feoffees to be infeoffed of the land as next heir to the land the Feoffees upon their Oaths confessed the trust wherefore it was decreed by the Court by advise of John Fortescue Knight chief Justice of the K Bench and divers other Justices and Serj. that the Feoffees should execute an estate to Isabel and her heirs qâ— nota petic in Canc. Ann. 33 H. 6. 2 pts 8. It the Feoffee upon trust do refuse to perform the trust by denying to re-infeoff the Feoffer he shall be compelled thereunto by sub poena and decree and imprisonment per Liac Ser. 37 H. 6. 13. 9. One having four Feoffees seised to his use sold his land to J. S. and said to two of his Feoffees that his Will was that they four should make a Feofment unto J. S. accordingly which two Feoffees notified his Will unto the other two who refused to joyn in the Feofment whereupon the first two alone made a Feofment to J. S. of their parts and afterwards the Feoffer sold the lands to J. D. and required those two Feoffees which refused before to infeoff J. D. who did so accordingly and J. S. sued a sub poena against the two Feoffees which refused and because the two Feoffes did bur onely give notice to the other two Feoffees of the Feoffers Will and did not tell them that the Feoffer had commanded them to infeoff I. S. and without commandment they were not compellable to make the Feofment therefore the two Feoffees which so refused were dismissed per canc omnes Iust. 37 H 6. 35. sub poena b. consc. 5. 10. If the Feoffer do send his servant to his Feoffees commanding them to make estate according to his Will the Feoffees are not bound to make a Feofment without specialty proving his Will per plur. Instic 37 H. 6 35 sub poena 1 b. consc. 5. 11. One willed that his Feoffees should make an estate for life to I. S. the Remainders to I. D. in fee I. S. refused to make the Estate for life I. D. may compell the Feoffees by sub poena to limit an estate in rem unto him after the death of I. S. per Ienney Serj. Fincham apprentice and Fincham said that the Feoffees ought to make an Estate to the heir of the Feoff r during the life of I. S. if I. S. did â—â—fuse the rem to I. D. 12 And I. D. may compell the Feoffees by sub poena to grant the rem in the life of I. S. for else by the refusall of I. S. he should lose his rem otherwise it is if a man devise â—aâ—ds by his Testament to I. S. for life the rem to I. D. further if I. S. refuse yet there needeth 〈◊〉 sub poena because he may enter by the law bâ— force of the Testament 37 H. 6. 36. sub poena 6. consc. 5. 13 If any Feoffee in trust be dissâ—izâ—d I may have sub poena to compel him 〈◊〉 bring Assize against the Dissâ—â—sor per Mâ—â—le Danvers Iustice in communibance 2 E. 4. 2. b. consc. 5. 14 If If I be bound by obligation to I. S. to the use of I D. that I shall infecâ—s I. D. for certain lands if I do offer a Feofnient unto I. D. and do refuse â—o receive the obligation is thereby discharged but I. D. may â—ave a sub poena to compell me to infeoff him notwithstanding per Danby Capit. Iu stice de communi banco 2 E. 4. 3. 15