feise a mans lands into their hands for the Kings use also he said that this appears by the 11. E. 4. and 2. Eliz. Dyer if a man comes and saith that he surrenders his office and a Memorandum is recorded thereof but the Patent is not delivered up it seems this is not sufficient to make a surrender so on the other side if the Patentee make a deed purporting asmuch yet it appeareth by 19. of Eliz. Dyer if the deed be not inrolled it is a good surrender and he agreed to that which hath been objected against him that although that the Iury did not finde in what Court the restoring of the Patent was yet it ought to be intended to be made in Chancery but he said that the Iury did not finde any time when the surrender was made and that is a thing material to be found as it appears in Kemps Case and Mack Williams Case before Thirdly an actual surrender being in the King new letters Patents urged to be made shall be intended to be part of the consideration which moved the King to a new grant and he vouched 18. Eliz. Dyer 352 where a lease was recited which needed not and in facto the said lease was a void lease in Law And therefore the new lease made was also void à fortiori here where an actual surrender is recited to be made Fourthly he said that the sole reason in Harris and Wings case was that the first lease ought to have been recited for if the King makes a lease and after makes another lease of the same land to the same lessee the first lease is in being at the time of the acceptance of the new lease as appears by Fulmerstons case in Plowden and therefore if in such case there be not a good recital of the lease in being the second lease is not good and so the acceptance of it makes no surrender of the former lease and he said that the recital of the Queen in the principal Case is a shewing of a former lease destroyed and not in being and then no actual surrender being made the said former lease contrary to this recital is in being still and so the recital is false and consequently the second lease is a void lease and so this worketh no surrender in Law of the old lease and so he concluded the fourth point that here is no surrender in Law and he held that if there had been a good surrender in Law yet this had not made the Patent good and where it was objected that a consideration executed though valuable being false avoyds not a Patent he said it appears in 6. Ed. 2. tit pardon Brook 79. that a consideration of service in the Kings Patent ought to be alledged to have been performed nevertheless it appears in Sir Thomas Worths case in Plowden that such a particular service being alledged in the Patent to be executed needs not an averment that it was performed for the Patent is good although such consideration be false but he said that in this Case the precedent surrender is the material consideration and therefore there ought not to be any material variance in the form of the consideration and so is the difference betwixt this Case and Worths Case and therefore if the King make a grant to A. in consideration that he had released by deed inrolled and he had released by fine here is a failing of the consideration that he had released by deed inrolled when as he had released by fine and so the grant is void and he said that as it appears by the judgement given in Welshes Case cited in Altonwoods Case that no equitie ought to be observed in the Kings grant against his express words so here no equitie ought to be observed against the King otherwise then his plain words import and therefore here his words import and intend an actual surrender precedent which ought not to be satisfied with a surrender subsequent and after upon the motion of the Earl of Salisbury Lord Treasurer of England this Case was referred to the Lord Privy Seal and the Lord of Worcester who awarded to Sir Robert Johnson 200 l. per annum during his life and the life of his wife for all his interest but the Earl of Salisbury Lord Treasurer seemed that the matter in Law was against Sir Robert Johnson although that equitie was for him to which opinion Tanfield chief Baron also inclined in regard there was not here any surrender in the Case but an extinguishment only Hill 4. Jac. in the Exchequer IT was moved by one whether the Kings Patentee of Pirats goods seising some goods of Pirats should pay custome for them or not and it was holden by the Barons that he should pay none for in asmuch as they are goods given by Law unto the King no reason that he should have custome for his own goods The Case of Queens Colledge in Oxford of Minosmer UPon a special verdict the Iury found that Queens Colledge in Oxford was incorporated by the name of Provost and Schollers of the Hall of the Queens Colledge of Oxford and they were seised in fee of an advowson whereof the place is parcel the Church being void the Provost and Schollers aforesaid did by the name of Provost of Queens Colledge in the Universitie of Oxford and the fellows and Scholers of the same present one A. to the same avoydance who after admission c. made a lease for years yet to come to the Defendant which was confirmed by the Patron and Ordinary and that afterwards A. died and the Plautiff was presented admitted instituted and inducted and the Defendant entring claiming his lease the Plantiff had brought this Action Harris Junior Serjeant for the Plantiff seemed that the presentation of the lessor of the Defendant was not by the true name of the Patrons and so the lease void and therefore the Defendant a Trespasser as to the Plantiff and he said that the name of a Corporation is not like to a mans surname which groweth by nature but is like to a name of Baptisme which groweth by politie and therefore ought to be truly observed in their grants and presentations as appears by 35. H. 6. fo 5. and it is there said if a man be baptized by the name of Posthumus if this addition of Posthumus be omitted this abates the writ but yet he agreed that variance of the name of a Corporation in some manner of Surplusage hindreth not as in Plowden Crofts and Howels Case and it was in Fisher and Boys Case ruled that Custos for gardianus was not any material variance but he said that in Mich. 29. 30. Eliz. in Banco Regis in Merton Colledge Case where the title was that the said Colledge was incorporated by the name of the Colledge of Scholers of the house of Merton Colledge and in a lease by them this word Scholers was omitted and holden void for that cause and so it was betwixt one Wingate
an actual surrender before made for the consideration but whereas it hath been objected of the other part that the word modo doth often signifie the time past and some instances according to Grammatical construction were given in proof thereof and thereupon they would infer that the Queen by these words modo habens did intend no other but lately having or injoying to that he gave a double answer to the first he said that there was no cause shewed or instance given That modo habens joyned together will signifie a time past though taken â—everally that may signifie so much which makes a plain difference betwixt those instances and this present case Secondly admitting in a Grammatical construction they did signifie as the other side would have it yet the judges ought to adjudge thereof according to the most natural sence of these words in Common understanding and that so it may be done he vouched one Talbots Case in 32 Eliz. in Banco Regis in which after the Iudges had conferred in the Court with divers learned Schollers touching the Grammatical construction of a word used in a Convey ance they afterwards notwithstanding did wave the Grammatical construction and adjudged the word to signifie in Law according to the Common received sense of the word and according to this he vouched 12. H. 8. where the word uterque received the like construction also he vouched the 20. Eliz. Dyer fol. 262. where it is admitted that the word modo is to be taken in the present Tense and to this purpose he also vouched Billings Case in 38. H. 6. and Bozuns Case Coo. lib. 4. and then he concluded that in asmuch as the special verdict had definitively found no consideration but generally for the consideration above exprest he held that the second Patent was good for a Patent cannot be void because there is no consideration to move the King to grant but a Patent may be void as is pretended for a false consideration which is not in this case and therefore c. Fourthly admitting that the consideration in this Case was for an actual surrender before made and that in this case no such actual surrender was before made yet he held that in this Case the second lease is good notwithstanding the false consideration for it appears by 37. H. 8. Brook title patents 100. that a Patent shall never be void for a false consideration but by reason of a false surmise it may but he confessed this difference was generally denied because a Patent shall be void by reason of a false consideration but he said that the differences were infinite also upon this ground for some take a difference where a consideration is real and where it is personal and they hold that a real consideration being false shall not avoid the grant but otherwise of a personal and so they take the Book of 37. H. 8. before cited to be good Law and upon this difference others also have taken a difference where the consideration is to come to the King himself and where it is to come to a stranger others also have taken a difference where the consideration is of a thing valuable and where it is not of value yet they take a difference where that is past and executed and where it is to come or Executorie but he said that although divers of these differences seemed to be good with great reasons and were backed with some Authorities yet he needed not to take advantage of any of them for the maintenance of this Case and for that he took this general difference for the maintenance of this Patent viz. that if the consideration be such which brings a benefit or commonditie to the King and this is false that this avoyds the grant but if it bring no commoditie to the King although it be false yet the grant is good and to prove this diversitie he cited Harris and Wings Case to be adjudged in Banco Regis and Barwicks Case Cook lib. 5. and Sir Hugh Cholmleys Case Cook lib. 2. to be adjudged accordingly of a false recital and he said although it be admitted that the consideration which the King intended to have was an actual surrender yet in asmuch as this cannot be intended a thing more to his advantage then a surrender in Law the which plainly appears to be in this case that the Patent is good and for that he held that the second lease shall not be avoided for such a falsitie and also he said that this Case is more strong of his side then any Case which may be cited in asmuch as the King had no discommoditie or loss by the falsitie of the consideration but in this Case also he should be at a loss if the second lease were not good for the second lease reserveth a greater rent to the King then was reserved by the first and therefore it is for his benefit that the Law should allow of the second lease to the intent it may make a surrender of the former lease for the Kings advantage and if the King granteth probis hominibus de O. rendring rent they are by this grant impliedly made a corporation for the benefit of the King to render him the rent whereas otherwise the grant would be void and so he took it in the principal case although the grant should be void by reason of the false consideration yet it should be good to this purpose for the Kings benefit and after Termino Mich. Anno Sexto Jacobi Regis this Case was argued again and Nicholas Serjeant for the Defendant said that the sole point of the Case is if the consideration of the lease made in 27. Eliz. be good or not and this is exprest to be Tam in consideratione sursum reddditionis praedict quam pro aliis Causiis et Considerationibus c. then it is to be considered if here be such a surrender as is meant to be within the intent of the Consideration of the Queen and he said that in this Case here was a good surrender in law clearly by the Book of 37. H. 6. for in all Cases where a Teimer for years accepts a lease of him in Reversion as here the Lord Seymor did then this is a surrender in Law of his first interest but the Earl of Salisbury Lord Treasurer said that this is not properly a surrender of this Antient Term but an extinguishment thereof to which the Lord chief Baron Tanfield agreed and Serjeant Nichols further said that the Consideration which moved the Queen to her grant was only the sufficient surrendring of the precedent estate of the Lord Seymor and not the restoring of the letters Patents and therefore although it be admitted that here was not a sufficient restoring of the letters Patents nor an actual surrender by this means yet here is an effectual surrender by the operation of Law and then this being the sole Consideration which moved the Queen to her grant the not sufficient restoring of
the said resolution and he said that the case concerning parcel of the land contained in S. the Deed come in question in Parliament in the 43. Eliz. and it was then commanded that the Deed should be inrolled and also he compared it to a case put in Shelleys Case that the heir shall have land as by discent from his father although that the conveyance be not inrolled in the life of the father also he said that the Queen dieth not as to her body politick to the third point he said that the confirmation need not to be inrolled for it passeth nothing and is but a bare assent and therefore differeth from the case of Patron and Ordinary and of a disseissee for the disseisee hath right to grant end the Patron and Ordinary have interest in R. but Bishops are seised in their own right and therefore their lease wants the approbation only of the Dean and Chapter and he vouched Cook lib. 3. the Dean and Chapter of Norwiches Case and the writ of Sine Assensu Capituli in the Register proveth it for the tit confirmation pl. 30. observes and Littleton in the end of his chap. of discontinuance saith that a parson may charge the Gleab by the assent of the Patron and Ordinary and the opinion of Brook in the case of the 33. of H. 8. tit confirmation pl. 30. agreeth to this opinion and so are some opinions in the 7. H 4. fo 15. 16. and he said that this point was adjudged accordingly in the first of Ma. but he had not the record thereof and therefore he would not insist upon it and he vouched 1. and 2. of Ma. Dyer fo 106. and Cook lib 6. fo 15. Hodges Case that the acceptance of the Patron is good enough to make a confirmation to the fourth point he said that the confirmation was good notwithstanding it be before the inrolment of the lease for the lease shall stay his operation until all the Ceremonies be used for the perfection of the estate and he vouched Littleton fo 122. and 6. E. 6. Dyer fo 69. where a parson made a lease to commence after his death the Patron and Ordinary in the life of the parson confirmed it and this is good and he vouched also Anne Maiowes Case Cook lib. 1. where the father confirmed the sons grant when he had but a possibilitie and yet good and he vouched Dyer 2. 3. Eliz. fo 194. where a grant was incertain and the inception was before the confirmation after makes it good and therefore he said if disseissor and disseissee bargain land although it be but a confirmation of the disseisee which may be well enough without inrolment of the Deed by a bare delivery yet this shall hinder the operation until the inrolment of the Deed which should pass the estate from the disseisor and by Cook lib. 5. Fitz. Case it appeareth that one part of the assurance shall stay his operation until another part hath his perfection and therefore he concluded that here the confirmation in judgement of Law should stay his operation until the lease be inrolled which passed the estate see the argument of Serjeant Nichols to the contrary and also the argument of Thomas Crew in Easter Term and Trin. 7. Jac. Pasch 7. Jac. in the Exchequer Catesbies Case Pasch 7. Jac. in the Exchequer TAnfield chief Baron said that in the year 31. Eliz it was adjudged in Goar and Peers Case if Tenant for life infeoffe A. and his heirs to the use of the feoffee and his heirs during the life of the feoffor that this is a forfeiture because these words during the life of the feoffor shall be but to the use limited and he put the case which Serjeant Nichols put at the Bar of the Lady Catesby which was that a man suffered a recovery to the use of William Catesby and Anne his wife and of the longer liver of them and of the Executors of William for forty years if one Elizabeth Catesby should so long live William Catesby dies and the reversion came to the King by forfeiture and he pretended that Elizabeth Catesby being dead the estate is also determined in regard that these words if Elizabeth shall so long live refer to all the estate but Curia avisari vult It was said by the chief Baron that if a man plead a deed in writing and the other partie do not pray Oyer the same Term he shall not have Oyer in another Term in the Common Pleas but in the Kings Bench Oyer shall be granted in another Term. It was found by office that Elizabeth Bowes was convicted of Recusancy in 35. Eliz. and that a lease for years was made unto her in the year 36. Eliz. in trust and that she had conveyed this lease over according to the trust and a question was demanded if the King shall have this term or not for her Recusancy and it seemed that he shall because she is not capable nor lyable of any trust and therefore the conveyance made by the Recusant was as if it had been without any compulsion by reason of the trust If a Coppiholder of the Kings Mannor pretendeth prescription for a Modus decimandi against the Parson the right of Tithes shall be tried in the Exchequer and a prohibition was granted to the Ecclesiastical Court in this Case Owen Ratliff was lessee for years of the King rendring rent and he assigned his Term to Sir Thomas Chichley in trust for payment of the debts of the said Owen Ratliff and after the Debts were paid Chichley resigned it but in the interim between the assignment and the resignment divers rents incurred to the King and the Barons agreed that these arretages in Law may be levied upon the land of Chichley notwithstanding the trust but because the Court was informed that the Executors of Ratliff had assets and continued farmer of the farm at that time they compelled him to pay it and being present in Court they imprisoned him untill payment made and allowed him his remedy by English Bill against Chichley and that by the agreement Chichley was to have paid the rents to the King The Earl of Cumberlands Case IT was found by diem clausit extremum after the death of G. Eearl of Cumberland that King E. 2. gave to the Lord Clifford inter alia the Mannor of Skipton in Craven to him and to the heirs of his body and found further the discent in a direct line until the time of H. 6. and that the first Donee and all others to whom it descended were seised prout lex postulat without determining any estate in certain in the Donee and they found that H. 6. by sufficient conveyance concessit Revertionem nec non manerium de Skipton in Craven to Thomas Lord Clifford to whom the estate given by E. 2. was descended and his heirs by force whereof the said Thomas was seised prout lex postulat and found the discent to the
Earl of C. now dead and found that by fine and recovery he conveyed an estate in this land to the use of his brother that now is Earl of C. in tail the remainder over to c. and died having a daughter now Countess of Dorset who moved by Dodderidge the Kings Serjeant in the Court of wards that this office was insufficient for by the pretence of the said Countess the first estate given to the Cliffords by E. 2. was a general tail and then the fine levied and the recovery suffered by the last Earl her father is no Bar but that it may discend to this Countess as his heir in tail and therefore Serjeant Dodderidge said to the Lord Treasurer then present in Court that if this should be allowed that Iurors may finde generally a grant made and shew no quallitie of the conveyance nor any place or time but if this were a grant of reversion or of a possession he said that many men by such offices should have their lands given away whereunto they had no means for uncertainties to take a Traverse and as to insufficiency of this office he said that the insufficiency therein consisted first in matter Secondly in form for the insufficiency of the matter is two fold First because that the office findes only that King H. 6. by sufficient conveyance not limited any manner of conveyances nor any qualitie thereof which ought to be shewed and it is material because we may give a different answer thereunto for against letters Patents we may plead one thing and against an other conveyance we may plead another thing and so our answer differeth according to the qualitie of the conveyance Secondly it is insuffient in matter because it is found that H. 6. granted the possession and that he granted the reversion nec non manerium which is repugnant for if the King grant a reversion then no possession passeth and if he pass a possession then no reversion passeth and therefore it is repuguant to say that he granted Reversionem nec non manerium which implieth a possession also he said that his exceptions to the office as to the Mannor of it are two-fold First the office doth finde any time of the grant made by H. 6. and this is material for the grants upon Record take their force from the time of their date as appears by Ludfords Case in Plowdens Commentaries and he said that at this time the case is material to be exprest in respect that H. 6. was for part of his reign deposed and after restored and it might be in the time that he was deposed by Edward the fourth but unto that it was answered by the attorney of the wards that the office found that H. 6. granted c. that it was not in the time when he was deposed the second insufficiency in the Mannor is because it is not found at what place H. 6. made the said grant and that this is material to be found by office he vouched 36. H. 6.32 and he said that it is very requisite that in such offices all circumstances ought to be expressed in as ample certaintie as in a declaration so that the partie prejudiced by the office may know where to search for the conveyance but the Attorney general said that there needs no such express finding of all circumstances by a Iury as it ought to be in pleading for it shall be taken by intendment in divers cases but yet he said that it appears by 1. Eliz. Dyer 174. it is a good plea to say that A. granted a reversion c. to the King without shewing how much more in office which is the Act of the Iurors and therefore Serjeant Harris cited the Book of 14 15. H. 7.22 where an office found an estate tail without mention of the Donor and yet good and the Attorney general said also that it appears by the finding of the Iury in Fulwoods Case Cook lib. 4. that the Iury need not precisely to finde all circumstances for if there be convenient certaintie the residue shall be supplied by intendment as it is there said and the Attorney said that whereas it hath been objected that the issue is evil because it is found that H. 6. granted the reversion and also the Mannor and Castle aforesaid and doth not limit incertaintie that the King granted a reversion or that he granted a Mannor in possession to that he said that it is clear that the King may after recital of a particular estate grant the reversion nec non terras sive manerium and then be the land in lease or be the lease void in Law yet the land shall pass and this is his course alwayes in granting the Kings lands to others and therefore the Iury did well to finde the truth without determining what should pass for admit that there were no estate precedent in being yet by this finding it appears plainly that the Mannor and Castle should pass by the grant in the time of H. 6. to which the Lord Cook agreed for Law and so he said it was his use when he was Attorney general to which also the Lord Treasurer Flemming chief Justice and Tanfield chief Baron agreed and the Attorney general said that his use was if A. had a lease from the King of B. acre which by effluction is to determine in Anno. 1612. and the said A. doubting that this lease was not good in Law prayed to have a new lease that in this case he recited the first lease in the new letters Patents and thereby granted the land for twentie years from c. which shall be in Anno 1612. or from the sooner determination of the former lease and the Iudges allowed it to be good and Dodderidge Serjeant said that after the difference taken between the pleading and the finding of the Iury it seemed to him that there is a great difference between them but after the finding of the Iury upon an office as our case is and a pleading there is no difference for the office is a thing to which an answer may be made but a verdict given upon issue joyned between the parties hath no other proceeding but to judgement immediately and therefore such a verdict shall be divers times supplied by the construction of the Iudges but a verdict upon an office ought to be as certain as an indictment because the partie may Traverse and to prove that upon such uncertain offices there is no remedy by Traverse he vouched the case of 3. H. 4 5. upon an insufficient office after the outlawry of A. and no time is found of the outlawry and he observed out of the said book that the partie outed by the said insufficient office had no remedy by Traverse but was compelled to make a motion to the Court and after this case for difficultie was referred to the two chief Iustices and the chief Baron to consider upon who the said Term at Serjeants Inne appointed it to be
and therefore he vouched a case between Scockwood and Sear where a man devised part of his land to his wife for life and another part of his land until Michaelmas next ensuing his death and further by the said will he devised to his younger son all his lands not devised to his wife and adjudged that by the said words the younger son shall have only that parcel which was devised to the wife for life and not that which was devised unto her till Michaelmas and yet by Popham it appeareth that his intent was otherwise viz. that all that should go to his younger son so there ought not to be a strained construction made against the heir and so in our case the words being that if he die without issue c. that then it shall go to his wife herein as much as he had issue at the time of his death it cannot be said that he died without issue but that he is dead without issue and this appeareth by the pleading in the Lord Bartleys case in Plowden and he vouched also a case in the Kings Bench 4. Jac. between Miller and Robinson where a man devised to Thomas his son and if he die without issue having no son there it was holden that if the devisee had issue a son yet if he had none at the time of his death the devisee in the remainder shall have it yet he was once a person having a son and so in our case there was a person who did not die without issue and he vouched also the case of Bold and Mollineux in 28. H. 8. Dyer fo 15.3 when a man deviseth to his wife for life paying a yearly rent to his sister and that if the rent be not paid that the sister may distrain it seems to me that this is a conditional estate in the wife notwithstanding the limitation of the distress and he vouched 18. Eliz. in Dyer 348. which as he said proved the case expresly for there in such a case it is adjudged that the devisee of the rent may after demand thereof distrain and yet the heir may enter for the not payment of the rent although it were never demanded so that the subsequent words of distraining do not qualifie the force of the condition although there be there an express condition and in our case but a condition implyed and he said that it seemed reasonable that such a construction for the distress and condition also shall stand as appeareth by divers cases that upon such words the Law will allow a double remedy and therefore he vouched Gravenors case in the Common Pleas Hill 36. Eliz. Rot. 1322. where a lease was made by Magdalen Colledge to husband and wife so that if the husband alien that the lease shall be void and provided that they do not make any under-tenants and to this purpose he vouched the case of the Earl of Pembrook cited in the Lord Cromwels case Cook lib. 2. where the words amounted to a covenant and a coudition and if this word paying should not be construed to be a condition then it were altogether void and idle and such a construction ought not to be made in a will and he conceived that this rent ought to be paid by the wife without any demand upon the pain of the condition and therefore he vouched 22. H. 6. fo 57.14 E. 4 21. E. 4. by Hussey and 18. Eliz. Dyer 348. vouched before and so it was resolved as he said in the Court of Wards in Somings case where a man made a devise paying a rent to a stranger this ought to be paid without demand and he said that the Common case is proved when a feofment is made upon condition that the feoffee shall do an act to a stranger this ought to be done in convenient time without request by the stranger and so here it seemeth although a demand ought to be made by the sister yet the wife ought to give notice to the sister of the Legacy so that she may make a demand and therefore he vouched Warder and Downings case where a man devised that his eldest son upon entry should pay to the younger son such a summe of money here the eldes brother ought to give notice at what time he will enter to the intent that the younger brother may be provided to make a demand Edwards of the Inner Temple contrary First it seemeth that by this limitation the wife ought to retain the land until the issue of the devisor should have come to the age of 18. years for this a time certain and as it is construed upon such words in Borastons case Cook lib. 3. that the Executors there have an interest certain so it should be construed here to refer to a certainty which is until the time by computation that the issue should have attained to 18. years and the rather in this case in respect the devisor had otherwise disposed of the land until the son should have accomplished the said age Secondly it seemeth that the wife hath an estate for life not conditional in so much as the words are not joyned in the case the 18. Eliz. Dyer hath been vouched but that was upon an express condition but here it is by implication and then the clause of distress taketh away the force of the implication which otherwise might be thereupon inferred and therefore in 5. Eliz. Dyer it appeareth that the word Proviso annexed to other words makes it no condition in judgement of Law and so in 14. Eliz. Dyer 311. and he vouched also 18. Eliz. Dyer Greens case that if a man deviseth lands to his friends paying to his wife with a clause of distress this is no condition as it is adjudged Thirdly it seemeth that this summe to be paid to the sister is a rent and therefore ought to be demanded or otherwise in judgement of Law the condition shall not be broken and the 21. E. 4. the case of an obligation to perform covenants c. and a case between Wentworth and Wentworth 37. Eliz. that a demand ought to be made for a rent which is granted in liew of Dower for the wife brought a writ of Dower for the land of her husband the Tenant pleaded that she accepted a rent out of the land in liew of her Dower and the wife replied that the said rent was granted upon condition that if it were not paid at certain dayes that it should be void and that she should have Dower of the land and she said that the rent was not paid at the dayes c. but shewed not in her pleading any demand to be made and therefore it was holden evil pleading for such a rent ought to be demanded or otherwise the condition is not broken and so here Nota that this case was appointed to be argued again but after as I heard the Barons amongst themselves resolved to give judgement for the Defendant upon one point only which was that the estate
the Mannor of Caversfield rendring rent and that this rent was arrear and thereupon an Inquisition returned and a scire facias issued to Moil who occupied the land to shew cause wherefore the King should not have this land whereupon he pleaded as Ter-tenant and upon this plea the Kings Attorney demurred but it was misentred as see hereafter but for divers great imperfections aswell in the Kings Commission as otherwise the Defendant ought to have judgement as all the Barons agreed as by the arguments of every Baron upon mature deltheration appeareth but for the reasons of the Barons to the exceptions taken by the Councel see after for they are very good Bromley Puisue Baron whereas the Inquisition purporteth that the Iurors in the County of Bucks have found a foundation of a Priory in the County of Oxon. that is not good by course of Law for if a thing be local the Iurors of another County cannot finde it and here the Commission giveth power only to inquire of things in the County of Bucks and he vouched Plowden in the Earl of Leicesters case upon a Commission directed to White Lord and Maior c. also the Inquisition is that Thomas Banbury Nuper Prior was seised and made a conveyance as is affirmed that is not good also the word Nuper may be intended a 100. years before and so no certainty as appears in Wrothesly and Adams case in Plowden Altham 2d Baron there are three faults in the Commission First is to inquire of a Mannor and lands of the late Priory of Bister in Caversfield in the County of Bucks and by these words no power is given to inquire of any thing concerning the Priory which is in the County of Oxon. and the words in the County of Bucks do defer to all the sentence precedent and not to the word Caversfield only 19 E. 4. fo 16 7. H. 6. fo 8. if A. B. and C. be insula de D. it shall be construed that the word insula hath reference to all the three Towas but if it were in A. B. and C. insula and not in insula then it is otherwise a Commission to inquire of lands of the Prior of Bister is evil without question where Bister is and he said that this may be proved by Pages case Cook lib. 5. also the Commission doth not propose any end wherefore the Iury should be but generally to inquire of the lands of the Priory at the time of the dissolution so that it may be certified to the King by the Inquisition the first fault which is found is that the Priory was founded by the name of the Church of Saint Mary and Saint Egbert without saying the Prior and Covent of c. and without finding of the place of the foundation viz. Bister and this cannot be without assignmend of the place of the foundation viz. Bister also the finding is that one Thomas Banbury then Prior as is affirmed made a feofment c. and this is not good because it ought to be absolutely found or otherwise it is not material also the intent of the feofment is found to be made by the Prior but no livery is found thereupon as it ought although that livery shall be intended in the case of a feofment pleaded by a common person yet it ought to be found expresly in the case of a Corporation and the finding here and that by vertue whereof he was seised as the Law requireth doth not aide the case Snig Baron it seems to me that this Commission was only to inform if the matter had been sufficient to us to give judgement to the King but here being to intitle c. it is not good the Commission is to inquire for the King of the lands of the Prior and this meerly incertain without saying certainly of what Prior and therefore they have no power to inquire of the lands of the Priory also the Iury of the County of Bucks cannot inquire of the name of the foundation of a Corporation in the County of Oxon. for the foundation is matter Local but it seems to me here that the finding by vertue whereof he was seised prout c. shall be intended that livery was made being by a verdict Tanfield chief Baron here is not any demurrer being mis-entred and therefore we have power to proceed to any matter in Law for the purpose in this case was that whereas the Statute of the 27. H. 8. of lesser Monasteries under the yearly value of 200. l. giveth them to the King and this Mannor of Caversfield within this Statute is to be seised as is pretended in this case whereupon this Commission issued to inform the King of this Mannor as parcel of these Revenues for I deny that it is an office of intitling it is only an office of instruction for the Statute of 27. H. 8. dissolves the smaller Monasteries and vests them actually in the King and this is the difference from the Statute of the 31. H. 8. for this Statute is only an Act to Abolish the lands of dissolved Monasteries and therefore this Statute is only to inform for the Statute of 27. H. 8. had intitled the King and he said that the land shall be in the King without office so that it being but an office of instruction this may be good notwithstanding divers incertainties therein contained but the plain and apparant fault herein is because it is not to inquire what lands the Prior had at the time of the dissolution as it ought to be for the words are to inquire what lands the late Prior had but it seems to me in this case that the Iurors of the County of Bucks may inquire of the foundation in another County without doubt this being but to inform and not to intitle and this is not alike mischief to the party for otherwise all Commissions to inform would be quashed and I have seen a Record in this Court where a man of a good family was found to be the Kings Villain regardant to a Mannor in Norfolk and this was done by a Iury in Suffolk and therefore in such cases God defend but that a Iury may finde a matter local in another County also a gross defect is in the Inquisition viz. because it doth not mention that the Mannor of Caversfield came to the King by the Statute of the 27. H. 8. but that the Priory came to the King by that Statute and doth not say that this Mannor was part of the possessions of the Priory at the time of dissolution and for these last matters it is apparent that the Inquisition and Commission are vitious although it be not proper for us as the case is to adjudge it for here is no demurrer joyned for the demurrer is joyned as if it were upon an Information of intrusion and here is no intrusion laid to the charge of the Defendant and yet after the plea pleaded by Moil the Attorney prayed that he may be
last matter it seems that the Statute of 1. Jac. cap. 4 hath discharged this Land admitting that it was not discharged before wherein the words are and if any Recusant shall hereafter die his Heir being no Recusant That in every such Case every such Heire shall be freed and discharged of all and singular the penalties charges and incumbrances happening upon him or her in respect or by reason of his or her Ancestors recusancy and as to Walter de Chirtons Case who being an Accomptant to the Ring purchased Lands of A. with the Kings money by Covin and took the profits neverthelesse upon Inquisition it was adjudged that they should be seised into the Kings hands for his debt I agree that to be good Law because A. when he received the said money of Walter de Chirton that being the Kings monie A. immediately thereby became a Debtor and an Accemptent to the King and then into whose hands soever these Lands do after come they are still chargable for that money and therefore c. Sawyer against East AN Ejectione firme was brought by Sawyer against East for certain Mills in East-Smithfield in the County of Middlesex the Case upon a speciall Verdict was this Queen Eliz. 28. of her raign demised two Mills one Messuage and one Curtilage to Potter for 40. years Potter makes Mary his Wife Executrix and dies Mary marries one Burhill who in 33. Eliz. did demise one Messuage and one Curtilage to Wilkenson for 20. years and dies and Mary intermarries one Hitchmore who by deed inrolled in Chancery 20. Marcii 44. Eliz. reciting the originall Lease and that he had the whole Right State and Interest and term of years which Potter had and that he surrendred the estate and term of years aforesaid to the Queen reciting the matter mentioned in the surrender and that the Interest and Term which Potter had is come to Hitchmore and that Hitchmore had surrendred the whole right aswell for 30. l. as for that that Hitchmore did assume at his proper charges to repaire and new build the said Mills being in great decay and to give security for the same did demise the Mills Messuage and Curtilage for 40 years to the said Hitchmore rendring rent with a Covenant to be void for not payment c. and after the King demised the premisses to Ferrers and Philips two contractors who enter and demise to Sawyer who was possessed untill ejected by East who claimed under the lease to Hitchmore and the Iury found that in the Letters Patents to Hitchmore were contained ordinary Covenants to repaire the Mills and to leave them in good repair and the Iury also found that Hitchmore had not given any security for the building and repairing of the Mills and that the Mills were not new built nor repaired and that Hitchmore had pulled down one of the Mills and that the Term of twenty years is yet in being and if upon the whole matter c. Bromley the Puisne Baron saies that it seemed to him that judgement ought to be given for the Plaintiff First the suggestion or surmise in the Patent being false in matter of value and in such a thing which is proper for the information of the Lessee causeth the Lease to be void as in 18. Eliz. Dyer 352. An Abbot makes a Lease for 60. years the Lessee demiseth to I. S. for 80. years the reversion comes to the Queen the 60. years expire the second Lessee surrenders to the Queen his Term and Interest which was nothing in substance to the intention that the Queen should re-grant to him for 20. years this falsitie avoids the Lease and yet it is no such Lease which of necessity ought to be recited and so is 8. H. 7. fo 3. by Vavisor if the King at the suit of I. S. grants the Mannor of D. of the value of 50. marks and this is of the value of 100. marks and this upon the information of the party in this case the grant is void and so is 8. H. 6.28 by Juine if the King be informed by petition that such Land is but of the value of 8. l. a year which in truth is of greater value the patent is void 11. Ed. 4.1 The Patentee suggests that a surrender was made whereas in deed there was no Surrender at all there also the Patent is void and so is 3. H. 7. the Prior of Norwich his case but there it is expressed in the Patent that the party had informed the Queen of a thing which is false and this is not expressed in our case yet it seems to me that there is no diversitie between that case and the case in question for it is plaine that in our case that the surrender and consideration are the information of the party which was the motive to induce the Queen to her grant for the suggestion is grounded upon the surrender the which surrender is fraudulent and deceptive and therefore the Patent is void Altonwoods case Cooke Lib. 1.40 The King grants the Mannor of Riton and Condor where in truth they were two Manners there neither of them passe Fitzh Grants 58. and so here the suggestion is grounded upon the words of the Surrender which are false and deceptive and therefore the Patent is void also it seems that when the Queen grants in consideration that the Grancee did assume to repair and it is found that he had not repaired this not performing of the consideration avoids the Patent and this is proved by Barwicks case Cook lib. 5. if the King will make a Patent for a consideration which is for the Kings benefit be it Executory or executed of Record or not if it be not true or duly performed the Patent is thereby void And here the Covenant or assumption not being performed according to the Queens intention and the consideration of the Grant will also make void the Patent And it may be construed as a Proviso in an Indenture within some Cases doth amount to a Covenant and condition also as it was in the case of Simpson and Titterell and also in the case of the Earl of Pembrook vouched in Cook lib. 2. in the Lord Cromwels case and therefore I conceive that the words super se Assumpsit aedificare is parcell of the consideration aswell as if it had been pro eo quod aedificabit and so avoids the Patent by the not performance thereof Altham Second Baron saies it seems to me that the Iudgement ought to be given for the Planthere are three things considerable in the Case First whether the Lease made to Hitchmore were ever good or not in respect of a false suggestion Secondly whether in that the consideration that he did assume upon himself to repair and the Queen indeed never had any precedent information made of the want thereof do avoid the Patent in the foundation Thirdly admit it be good in the foundation whether the Lease become void afterwards for not repasting And first I
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