to Prison within the Statute The Admirals Jurisdiction is limitted by the Statute of 13 R. 2. cap. 5. that they shall not meddle with things done within the Realm scil this Realm 15 R. 2. cap. 3. de South les points 2 H. 4. cap. 11. gives an aection and double damages There was a Case in the Common Pleas. I take it the Admiral hath no Jurisdiction to hold Plea of a thing done upon the Land in Ireland for he is Admiral both of England and Ireland so the King hath his Justices there for to give justice for trespasses and offences there done first for that these Statutes are in force in Ireland as all other are which were made before 1 H. 7. And a Prohibition will lie here in the Kings Bench if they hold Plea of a thing whereof they have no jurisdiction although they cannot hold Plea thereof themselves as we see in the Orphans Case in Coke li. 5. and these Courts ought to respect them of Ireland as subordinate to them for 34 Assises Errors here upon a Judgment there 31 H. 8. Bro. Prohibition 17. A Prohibition lies against the Admiral when he supposeth a thing to be done upon the Sea which was done upon the Land 8. The Parishioners detain their Tythes The Question is A man is presented by Simony the Statute is the Presentation the Institution and Induction are all void But it is to give title to the King to present But to the Parishioner he is dominus pro tempore as if he had been meer laicus yet Sacraments ministred by him are of force The Church and the Minister are compared to the Husband and Wife A woman is married to one Husband and in facie Ecclesice she is afterwards married to another as the Priest is actually in facie of the Country inducted 17 Ass 32 H. 6. The Feme with her second Husband levy a Fine none can avoid this Fine but the right Husband no more can any displace the Simonist but the King And a Prohibition hath been awarded against a Parson supposing he was a Simonist and upon advice and consultation the Parson Closes B. ver Simony in the Exchequer another presented by the King and yet all one for the mean profits 9. The Grantee presents to the first Benefice question whether I grant one Primam advocationem proximam he presents and his Clerk is instituted and dies before induction whether his turn be served It is 38 E. 3.36.6 vide lib. 10. That Commissioners here may sell a Bankrupts Goods in Ireland and Irishmen may sue the Commission 11. The first is within the express words of the Law scil being also a Subject born The second is proved by the Case of the Merchants of Waterford 2 R. 3.11 An Act of Parliament in England shall not bind men of Ireland for their Lands but for things transitory it shall as the Case was there for shipping of Wools from Waterford to carry to other places than Callis Also a man attainted here of Felony or Treason shall lose his Lands in Ireland My Lord of Essex and Ororkes Case 12. An action of debt upon the Statute by the Statute of primo Jac. which gives not only all things in Action but also gives an Action to the Assignee in his own name but he must declare specially 1. A. makes a Lease of a Rectory to the King for another mans life and grants the reversion to B. a Merchant to the use of B. and C. the King grants his Estate to D. E. enters and marries with the Merchant C. dies D. releases to B. who being non solvent keeps his House the Tythes are sequestred for not repairing of the Quire the Creditors grant a Letter of License to B. for six months E. dies D. enters he for whose life dies B. renders himself to Prison for a Fine assessed before the High Commissioners six months past B. Is a Bankrupt within this division and the Moiety of the Rectory shall be sold and all the goods sequestred 1. The King tenant pur auter vie the lessor grants the reversion if good without Atturnment It is good 2. A grants to B. to the use of him and C. if they are Jointenants or Tenants in Common they are Tenants in Common 3. Tenant for life is disseised by a Feme sole she marries him in the reversion the disseisee releases to the Husband it is good to extinguish his right 4. What is wrought by the occupancy nothing 1. If a Bankrupt procures a Letter of License for six months and within the time is a Bankrupt again if he shall be a Bankrupt ab initio He shall be 2. If Imprisonment by the High Commissioners is within the Statute It is 3. If the Goods of a Bankrupt sequestred shall be sold They shall 2. A. Devises 20 l. to B. and C. and 200 Acres of Land to D. and E. his Executors D. proves the Will E. wastes the assets and dies D. a Merchant makes a Feoffment of 99 Acres to F. D. is non solvent and outlawed in Ireland B. and C. joyn with the Creditors in suing a Commission D. Is a Bankrupt within this Division and 101. Acres shall be sold and B. and C. shall be relieved 3. Tenant of the King makes a gift in tail and dies having issue two Daughters within age the Donee makes a Feoffment to Coparceners office is found and the Land being seised for the King he grants it to H. a Merchant as long as it shall be in our hands H. marries the younger and is non solvent and suffers himself to be arrested at the sute of a Son born the other Daughter dies H. confesseth the action and is imprisoned in execution for the damages the Commissioners sell the Interest of H. All this is found by another office H. Is a Bankrupt within this Division and the Vendee shall have an Ouster le main 1. Discontinuee makes a Feoffment to issues in tail within age if they are remitted for they are not Tenants in Common but Jointenants 2. Tenant of the King makes a gift in tail and dies his Heir within age the Discontinuee infeoffs the Infant if he shall be in Ward because a Purchasor notwithstanding the Remitter 3. Tenant in tail discontinues hath issue a Daughter within age and his Wife with Child with a Son and dies the Discontinuee infeoffs the Daughter the Son is born if he shall have the benefit of Remitter 4. If the Interest of the King by an office shall be devested by another office without Petition or monstrance de droit 5. If a Merchant being a Discontinuee confess an action of trespass at the sute of the issue in tail and is taken in execution if it make him a Bankrupt 4. Grantee of a next avoidance presents A. by parol to a Benefice of 5 l. value per Annum he is Instituted B. a Merchant and Farmer in Ireland and Indebted there by agreement with the Grantor pays 10 l. to the
die after the sale of the Lands and distribution what remedy hath the Bankrupt for the rest against the Executors of the Commissioners or against the Survivor of them After the Sale and before distribution all the Commissioners die but two what shall be done A new Commission shall be awarded to other Commissioners not to them and they shall be called before the new Commissioners as they who have the Estate of the Bankrupt in their hands 15. What shall be said a concealment of the Estate of a Bankrupt or of his Person or a fraudulent claim or demand or detaining of his Estate and what remedy for the Forfeiture or Fine 16. What damage is it to be out of the Kings Protection by this Statute 17. Who shall be said a Creditor within this Statute A sole Creditor if he can sue the Commission A Mortgage of Lands or Goods if they can sell them Conusee of a Statute-Merchant or Recognizance The Plaintiff who hath the Body of the Defendant in Execution upon a Judgment at the Common Law He who hath the Bankrupt in Execution upon a Statute-Merchant A Merchant is taken in Execution and after becomes indebted to A. and remains six Months in Execution and so is a Bankrupt if A. shall be a Creditor that is if he be a Bankrupt from the beginning of his Imprisonment by relation or only after the six Months A Merchant is imprisoned for Debt the Gaoler Credits him for Victuals for a Year if he shall be a Creditor for part for all or for none A Bankrupt is Convicted for keeping of Inmates or erecting Cottages the Statute gives an Action of Debt to the Lord of the Leet he is no Creditor 18. What Conveyance the Commissioners may make after the Death of the Bankrupt A Feme Covert sole Merchant within Age the Baron and Feme levy a Fine of the Land of the Feme a Commission is awarded the Fine is reversed for Non-age of the Feme with a Cessation of Execution during the Life of the Baron they have Issue the Feme dies the Commissioners sell the Issue enters The First Division Who shall be said to be a Merchant or other Person using or exercising the Trade of Merchandizes by way of Bargaining Exchange Bartry Chevisance or otherwise in gross or by Retail or seek his or their Trade of Living by Buying and Selling. 1. A Makes a Lease for Years to B. and grants the reversion to C. in Tail B. attorn and enters A. grants the reversion of C. to D. being a Denizen of Ireland C. commits Treason and attorns D. becomes an Adventurer to the East Indies C. is attainted D. is Non solvent and having no House keeps himself on Ship-board C. Dies without Issue a Commission is awarded and after supers the Commissioners sells the Land by Deed Inrolled in the Mayor's Court in London D. is a Bankrupt within the Statute and the Sale by the Commissioners is good 2. Tenant for Years of an Inn makes a Feoffment in Fee to Baron and Feme an Alien makes livery within the view to the Feme who enters the Baron is made King the Lessor being an Adventurer of Virginia Releases to the King by Deed Inrolled an Office is found the Queen waives the Lessor enters and keeps the Inn and being Non-solvent is made Keeper of a Castle in the Isle of Man where he was Born and there remains The Lessor is a Bankrupt within this Division of the Statute and the Commissioners may sell the Land 3. A Disseisor makes a Lease for Life to a Feme sole the remainder to the right Heirs of I. S. she makes a Feoffment in Fee upon condition and enters for the condition broken and grants a Rend charge to A. a Goldsmith of London Naturalized by Parliament the Disseisee Releases to the Feme she Marries A. the Disseisor enters and makes a Feoffment to a Stranger I. S. dies the Feme hath Issue and dies A. enters and being Non-solvent surrenders to the Issue and departeth the Realm to Merchandize the Commissioners sell the Rent the right Heir of I. S. enters A. is a Bankrupt within this Division of the Statute and the Vendee may presently Distrain for the Rent 4. R. Tenant in tail makes a Gift in tail to M. hath Issue and dies M. makes a Feoffment to C. and dies without Issue his Wife the Issue of R. enters a Son is Born who enters the Feoffee enters and being a Grasier buyes lean Cattel and feeds them upon the Land and Sells them when they are fat and sells his own House and after being Non-solvent keeps his Neighbours House C. is no Bankrupt within this Statute and the Issue of R. recovers the Land by Formedon and the Son Born hath no right 5. A Man hath Issue A. and B. two Daughters they Disseise I. S. and infeoff their Father A. Marries C. and by his leave becomes a Sempster in the Exchange London the Father dies I. S. releases to the Husband B. brings a Neuper Obiit against A. and C. C. makes default after default A. is received and being indebted to divers Creditors disclaims in the Blood the Husband keeps the House The Husband is a Bankrupt within this Statute and the Moiety of the Land is liable to the sale of the Commissioners during the Coverture 6. One makes a Lease for Years to A. the remainder to B. for the Life of A. the remainder to the right Heirs of A. B. dies A. having Issue a Daughter his Wife with Child with a Son devises the Land to I. S. for the Life of M. for payment of his Debts and makes I. S. his Executor and dies I. S. enters the Daughter being a Feme Covert sole Merchant in London enters M. dies the Daughter is Non solvent and elopes the Son born enters The Daughter is a Bankrupt within this Statute and the Commissioners may sell the Land 7. One devises his Land to A. B. and C. baeredibus A. paying 10 li. they enter and A. being an Exchanger enters into Religion B. releases to C. the Bills of A. are protested C. dies the Creditors of A. brings Action against his Executors and before Judgment A. is deraigned the Commissioners sell all the Land A. is a Bankrupt within this Statute but the sale is good only for a third part 8. M. and F. joyn Tenants of a Horse Mortgage him to E. a Feme sole who intermarries with M. F. being a Horsecourser performs the condition and takes the Horse E. by commandment 〈◊〉 her Husband Steals the Horse M. and E. are Divorced causa praecontractus M. dies E. is indicted for Felony the Horsecourser becomes a Bankrupt the Commissioners sell the Horse F. is a Bankrupt within the Statute and the sale is good 9. The King makes a Lease for Years rendring Rent of the Pre-emption of Tynn in Cornwall to I. S. one of the Grooms of the Privy Chamber who becomes indebted to divers Persons for Tynn bought of
married B. being a poor Maid releases to A. and his Heirs to the use of B. and his Heirs Females of his Body they have Issue a Son and a Daughter B. dies the Daughter makes a Lease to C. for one and twenty years rendring the ancient Rent and dies having Issue E. a sole Merchant born upon the Coast of Flanders and is married to F. a Citizen of London born in the Port of Deep A. makes a Feoffment to F. who is outlawed for Debt The Feme is a Bankrupt within this Division and the Land shall be sold but subject to the Lease made to C. 2. One hath a House of Gavelkind and purchases Estovers to this House out of Land in Borough English and dies having two Elder Brothers they make partition of the House the Younger is Executed for Felony the Lord enters into a Moiety the Elder Brother born in Virginia and using to give Gold for Silver contrary to the Statute and for that is condemned in 100 l. in an Action upon the Statute at the sute of the Informer and the King and remains in Execution at the King's sute for six Months the Informer and I. S. a Creditor sue forth a Commission The Elder Brother is a Bankrupt within this Division but no part of the Land shall be sold by this Commission 3. The Lessor when the King was absent in Scotland enters upon the Lessee for life and die seised his Heir for Money paid by a Merchant Naturalized makes a Feoffment to him and to a Feme sole an Alien the Merchant and the Feme inter marry the Lessee and the Stranger make Livery by Letter of Attorney the Baron is made Church-warden and being non-solvent keeps the Church Office is found The Baron is a Bankrupt within this Division and all the Land shall be sold 4. White-Acre is given to A. and B. Baron and Feme and to the Heirs of the Baron for the Joynture of the Feme a Disseisor enters and levies a Fine to C. who marries D. an Alien A. dies five years pass D. is sole Merchant and made Denizen upon condition that she shall not depart the Realm without her Husband's leave B. brings Dower of Black-Acre the Heir of A. enters into White-Acre D. being non-solvent Elopes into Scotland C. enters The Feme is a Bankrupt within the Statute and White-Acre shall be sold 5. A Tenant for life and B. an Infant in reversion born in Greenland they levie a fine to C. B. uses his stock in the Muscovia Company and reverses the fine A. surrenders to the King by Deed B. being of full age and indebted to the Company procures himself to be arrested and after he grants the reversion to the King by Deed inrolled and after the first Deed is inrolled the Company sues a Commission B. is a Bankrupt within the Statute and the Commission is well awarded and the Land shall be sold 6. A. and B. a Merchant-Stranger enter upon C. the Heir of a Disseisor B. is made Denizen for seven years the Disseisee releases to A. who makes a Lease for years rendring Rent upon condition to re-enter for non-payment the Heir releases to B. the Land is extended for the Debt of A. B. is non solvent the extender enters for non-payment B. keeps his House seven years pass Office is found A. dies B. is a Bankrupt within this Division and the Land shall be sold subject to the Lease but not to the Extent 7. A Lord hath the Goods of Outlaws within his Mannor and M. his Tenant who was born in Gernsey is a Meal-man and outlawed and for redemption of his Goods enters into an Obligation to the Lord to pay 100 li. B. recovers 10 li. against him for Battery the Lord leases to him a Wind-mill M. reverses the Outlawry and being in Debt to a Scotch-man an Irish man and a Dutch man for Corn before his day of payment ceases to be a Meal-man and becomes a Miller and being non-solvent keeps himself in the Mill. He is a Bankrupt within the Statute but the Debts are not remedied by this Statute 8. An Accountant to the King hath a Seigniory and dies his Son being a Merchant and born upon the River of Canada releases to the Tenant all the services for the life of the Tenant who dies without Heir a Stranger abates the Son being non solvent goes to Barmudas a Commission is awarded for the King upon the Statute of 39 Eliz. cap. 7. and another Commission is upon the Statute of Bankrupts the Commissioners for the King sell the Tenancy to A. the Commissioners of Bankrupts sell the Seigniory to B. The Son is a Bankrupt within this Statute and B. shall recover the Land against the abator by Writ of Escheat 9. A. makes a Lease of years to B. a Merchant-Stranger Denizen of Ireland upon condition to have for life if he pay 10 li. at M. and to have in fee if he repair a High-way before Christmas rendring Rent upon condition to re-enter for non-payment the first condition is performed B. being non-solvent returns to Ireland and there stays in his House the Rent is due at the Feast of All Saints and is demanded and Arrear B. performs the second condition B. is a Denizen within the intent of this Statute but the King shall have the Land during his life Vpon the Second Division The Points of the First Case 1. IF one may release to one to the use of another 2. Two Disseisors are and they intermarry and the Disseisee releases to the Husband to the use of the Wife in tail where the Fee-simple is 3. If Marriage of a poor Maid be a good consideration to raise an use to the Maid or to A. 4. Lands are given to a Feme Covert and to her Heirs Females in tail she takes Husband hath Issue a Son and a Daughter if the Husband shall be Tenant by the Courtesie 5. If the Issue in tail in the life of Tenant by the Courtesie makes a present Lease if this shall be good against the Issue of the Issue after the death of Tenant by the Courtesie Points upon the Statute 1. IF a Feme Covert sole Merchant be within the Statute 2. If the Husband of such a Feme by her Bankrupting shall be also a Bankrupt 3. If the Outlawry of the Husband for the Wives debt shall make the one or the other or both Bankrupts 4. If the Lands or Goods of the Husband shall be sold for the Debts of the Wife 5. If the inheritance of the Wife shall be sold 6. If one born upon the Coast of Flanders is born out or within the King's Dominions 7. If one born in the Port of Diep is born within the King's Dominions 8. If the Wife of an Alien sole Merchant be within the Statute 9. If a Wife Alien and the Husband English be within the Statute 10. If the Estate of Tenant in tail a Bankrupt shall be sold 11. If by Entry of the
Commissioners and Sale the Vendee shall avoid a Lease which Tenant in tail a Bankrupt might have avoided 1. If one may release to the use of another or if an use can be raised upon a release and it may for three reasons A Release may be upon condition for there the case was put in Libro and consequently to an use But by 43 Ass 12. the condition and the release ought to be both in one Deed. 17 Ass 2. 31 Ass 32. 2. Secondly it is a good proof that a release to a Disseisor may be to an use when a Disselsm may be to an use as 34 Ass 12. 37 Ass 8. 1 H. 5.4 15 E. 4.15 All is in the Disseisor until agreement And 2 H. 7.16 If one disseise another to the use of a third the first is Tenant until agreement but after all is in him to whose use although not to be punished for the force 3. My third Argument is taken out of the Book of 17 E. 3.5 where it is said That if the Disseisee take homage of the Disseisor he shall never have an Assise for now they be Lord and Tenant when at first the Disseisor was in the post and destroyed the Disseisees Estate and held of the Lord Paramount So I hold that if before the Statute of Quia Emptores Terrarum the Disseisee had released to the Disseisor the Disseisor must have held of him although it is true that since that Statute a release of all his right in the Land releases his Seigniory as 34 Ass But Temp. E. 1. Ass 423. In a Writ of Entry in the Post of Disseisin made by A. to the Demandants Grandfather which A. infeoffed the Grandfather of the Tenant the Tenant answered after A. infeoffed my Grandfather your Grandfather confirmed and released to my Grandfather reserving homage and my Grandfather did homage to yours and my Father to your Father c. But he relied upon the Deed a Tenure was reserved upon the confirmation in which Case a release makes a degree See my Moot Book fol. 121. Then if an use may be raised out of the possession of a Disseisor if a condition out of a release and a tenure out of a confirmation by the same reasons an use may be raised or declared by release 2. Two Disseisors and they intermarry it may seem they are mutually and respectively in by title for if the Husband make a Feoffment of his moiety yet he hath title to be Tenant by the Courtesie of her part and she hath title of Dower to his part after the Feoffment which is in severance of the Joynture Kelloway's Case Incerti Temp. fol. 129. This Case is well debated which was A. Feme sole and A. Joynt-Tenants she marries B. A. releases to B. whether this shall inure to the Husband only or to the Wife Keble saith That it shall inure to the Baron sole for before marriage he might have infeoffed the Baron and it is no reason that he should be hindred to convey the Land to none but the Feme by release and by the release he shall be Tenant in Common with himself in right of his Wife But by others the Law is contrary for he might have infeoffed others as well as have released to the Baron also a release to one shall be in many cases to the benefit of another as a Release to Tenant for Life c. 9 Eliz. Dyer 263. This Case seems to make against me Baron and Feme and I. S. were Joynt-Purchasers I. S. released to the Baron nothing went to the Wife but I say that cannot be for the Baron and Feme being seised by intireties the release could not make them hold the Land by several moieties 16 H. 9. Fitz. Herb. Release 45. Nor do I agree that Case for there the Case was that a Woman was Tenant for life and she takes Husband the Lessor releaseth to the Husband and his heirs by Paston he had the reversion for the Free-hold of the Husband was in right of his Wife and the release to him conjoyns that right but I agree well that the Fee-simple shall be in the Husband c. 19 H. 6.35 One makes a Feoffment upon condition that he shall make a Feoffment over if he doth it not the Feoffer may enter but if one makes a Feoffment in Fee upon condition that the Feoffee shall make a gift in tail and he doth it the Feoffee and not the Feoffor shall have the reversion So here 3. If marriage of a poor Maid be a good consideration to raise an use it is good to carry the Fee-simple to the Husband and the intail to the Wife Before the Statute of Quia Emptores Terrarum one might have created a Tenure in performance of a charitable use as to make or repair a Bridge or to keep a Castle 34 H. 8. Brook p. 51. 6 E. 3.13 One holds by three pence to aid the Sheriff and good and another by four pence of the Wapentake Fine and good because for to discharge the publick contribution 12 H. 7.18 Keeping of a Beacon whereby the Country may be warned when the Enemies come 11 H. 7.12 The same for finding a Chaplain chanting in such a place And by the same reason that a Tenure may be created an use may and the same consideration For before Qui Emptores Terrarum If one had made a Feoffment in Fee without declaring an use it was to the use of the Feoffee for the Law created a Tenure which was a sufficient consideration but after no use to the Feoffee but to the Feoffor if neither Tenure created nor use declared and for that a lease for life or for years or in tail is to the use of the Lessee or Donee for the Law will create a Tenure of him in reversion So here is a good consideration to raise the use of the Fee to the Husband and the Estate tail to the Wife is good without other consideration than that Tenant in tail must hold of him in reversion 24 H. 8. Brook 4. Lands are given to a Feme and her Heirs Females and she hath Issue a Son and a Daughter and dies if the Husband shall be a Tenant by the Courtesie He shall Cook lib. 8. Pains Case is reported as if before that Case the Law had been doubtful whether the Husband should be Tenant by the Courtesie when the Wife Tenant in tail had Issue which dyed and so she dyed without Issue For the Estate was determined and this was the reason that Leases for life or years are not good against the Lessor for Cessante Statu primitivo c. yet one may be Tenant in Dower without Issue and therefore the Estate tail will continue to some purposes 21 Edw. 3. Dower after a Dying seised without Issue 21 H. 3. Dower 198. Tenant by the Courtesie may be although the Issue dye before the Wife 16 E. 3. Aid 129. One may be Tenant by the Courtesie of the moiety of
Gavelkind without Issue by the Custome there Reppes Case the Child was ripped out of his Mothers Belly and so after the death of the Feme the Baron could not be Tenant by the Courtesie But this Question rises upon the Case put in Pains Case Lands are given to a Feme and her Heirs Males and she hath Issue a Daughter and dies the Husband shall not be Tenant by the Courtesie for although a Man shall be Tenant by the Courtesie notwithstanding the Estate tail be spent yet his Estate must begin by an Heir heritable to the Estate Here in our Case the Son was the Heir and by him the Father would have been Tenant by the Courtesie to all other his Wifes Lands but not to this But although a Female cannot be Heir that hath a Brother yet since the Statute of Donis and by the Equity of that a Daughter may be Heir by Cook in Shelley's Case notwithstanding that he had also a Son fol. 103. and so here he may be Tenant by the Courtesie for this Land by the Daughter and of other Land by the Son if the Wife had been Tenant in tail of other Lands to her and her Heirs Males 5. Tenant by the Courtesie is and Tenant in tail in reversion makes a lease to commence presently hath Issue and dies Tenant by the Courtesie dies if his Issue shall avoid the Lease This Question is grounded upon the words of the Statute of 32 H. 8. which gives power to Tenant iâ— tail to make Leases Provided always that this Act c. shall not extend to any Leases to be made of any Mannors c. being in the hands of any Farmer or Farmers by vertue of any old Lease unless the same old Lease be expired surrendred or ended within one year after the making of the new Lease and upon this Clause hath risen many Questions as Tenant in tail makes a Lease for Forty years not warranted and Ten years after makes a Lease for Twenty One years to another warranted Within a year Tenant for Forty years surrenders Tenant in Dower surrenders to the Issue in tail upon condition Tenant in tail makes a Lease c. Tenant in Dower enters for the condition and dies and Tenant in tail dies if the Issue may enter Tenant in tail makes a good Lease for One and Twenty years Tenant for years surrenders upon condition Tenant in tail makes another Lease for One and Twenty years or three lives the first Tenant in tail enters for the condition broken By Philips the second Lease is good Cook contra in Elmers Case lib. 5. And my Question is whether Tenant by the Courtesie be within those words Farmers c. and he is not Foster in his Reading upon this Statute vouched one Richards Case That Tenant by the Courtesie was no such Farmer Points upon the Statute 1. IF a Feme Covert sole Merchant by the Custom of London shall be within the first Branch or Division of this Statute which is using the Trade of Merchandizing or getting their living by c. she is That there is such a Custom in London and mentioned and allowed in our Books Custom Br. 43. Ley Br. 74. 1 E 4. fol. 6. An Action being brought in C. B. for ones Board in London he would wage his Law not And the difference put between Customs which go with the Lands as Gavelkind Borough English c. and Customs of Courts good within the Town but not here but a recovery by such Custom may well be pleaded here in this Case Littleton Billing saith A Feme Covert sole Merchant by the Custom of London shall be impleaded sole here 35 H. 6. fol. 28. The Question was Whether the property of the Kings Jewells could be altered or forfeited because they were pawned and forfeited in London By Needham in the Exchequer Chamber upon an Information Custom Brook 5. and Pledges 28. 21 H. 7.17 Departure Brook 10. in case of a Departure because he had intituled himself by a new matter that is by a Custom which he might have pleaded 9 E. 4.35 A Feme removed by Habeas Corpus objected by Pigot that she and her Husband were both arrested for the Femes debt because a sole Merchant and prayed that she might be remanded for they have no remedy here this had been allowed and granted to him had not the Woman come in charged with a Reddidit So upon an Exigent The Customs of London have been confirmed by Parliament 1 E. 37. R. 2. and admit that she could not be sole sued here as in the Courts of London yet if a Contract made by her shall bind the Husband by the Custom the Husband shall be sued here and it shall be said the Contract of the Husband as 21 H. 7. 2. The Husband shall be bound by the Contract of his Wife if he command before or agree after and it shall be accounted his folly to suffer his Wife and so they be both Bankrupts To put cases how the Husband shall be prejudiced by the Act of his Wife 49 E. 3.25 The Husband shall not be charged with the debt of the Wife which she owed before marriage after her death but if an Action during the Coverture were brought against the Baron and Feme and Judgment were had against them and she dies the Husband shall be charged 20 H. 6.22 If the Wife buy any thing by the Husbands commandment or that by his allowance comes to his use he shall be charged 9 E. 4.24 Debt against Baron and Feme the Baron appeareth the Feme makes default the default of the Wife is the default of the Husband Nat. Brevium 120. G. A man shall be charged by the Contract of his Servant or his Wife if he gives them Authority otherwise not 12 H. 7.24 The Baron shall pay Mony in the Spiritual-Court which was charged for corporal punishment of the Wife for a slander And so it is at our Law for all Slanders and Batteries as we see every day 20 H. 7. Kello 61. A Feme Disseisor takes Husband who occupies the Land without notice or cognizance of the Husband yet he shall pay damages I conclude her Merchandizes are his by the Common Law and by the Custom 3. For all the Reasons aforesaid the Outlawry of the Husband shall make him a Bankrupt by the Statute and shall make the Wife a Bankrupt by the Custom and the Statute Which is plain against all using Trade of Merchandizing and getting their living by Buying and Selling and that if he be non solvent as he must needs be by his Outlawry then she must be non solvent but whether the Creditors by the Commission shall have the Goods or the King by his Outlawry That is a Question that comes not within the compass of this Case but I shall move that some other time 4. But I put the Husband to be dead before the Commission and whether his Goods or Lands shall be sold afterwards is a Question but
account with him and he will say that by their means he ought not to lose his election and benefit of the Lease The first Case of the second Division A and B. Disseise C. who in consideration that A. at his request had married a poor Maid releases to A. and his Heirs to the use of B. and his Heirs Females of his Body they have issue a Son and a Daughter B. dies the Daughter makes a Lease to M. for one and twenty years rendring the ancient Rent and dies having issue E. a sole Merchant born upon the coasts of Flanders and married to F. a Citizen of London born in the Port of Diep A. grants the reversion to F. who is outlawed for the debt of his Wife and A. dies M. enters The Wife is a Bankrupt and the Land shall be sold charged with the Lease to M. Points upon the second Case of the second Division 1. TEnant in Gavelkind of a House purchases Estovers out of Land in Borough English to be spent in the House he dies his Brother makes partition if the Estovers shall descend all to the elder or shall be divided or if by the division of the Land they are extinct 2. Two Brothers in Gavelkind the one is executed for Felony if the Custom the Father to the Bough c. holdeth place between Brothers as between the Father and the Son 3. If one born in Virginia is a Subject born 4. If the exchanging of Gold for Silver which is an unlawful act is buying and selling within the Statute 5. If a Debt recovered by Information by an Informer makes the Informer to be a Creditor 6. If remaining in Execution six months at the Sute of the King makes him a Bankrupt Vpon the third Case 1. A Feoffment to two and they intermarry the Livery is made if the marriage interrupts the Livery 2. If the Lessee is remitted when he enters only to make Livery 3. A Feoffment to B. and a Feme an Alien how they shall take and what part the King shall have 4. If one naturalized is within the Statute 5. If a Church-Warden a Bankrupt keeps the Church if that be a keeping of his House or taking Sanctuary within this Statute The third Division 1. WHat shall be said a Departing of the Realm 2. A beginning to keep his House 3. An absenting himself 4. Taking of Sanctuary 5. A suffering himself willingly to be Arrested 6. A suffering himself to be Outlawed 7. A yielding himself to Prison 8. A departing from his Dwelling House A Grantee of a next avoidance presents A. by parol to a Benefice of 5 li. value per Annum he is instituted B. a Merchant and Farmer in Ireland and indebted by agreement with the Grantor and the Ordinary pays 10 li. to the poor and is made a Minister and presented A. dies B. is instituted and inducted and after is inducted to another Benefice and recovers glebe to the first of 20 li. value per Annum he renders himself to the Prison of the Admiral for Trespass in Ireland the Parishioners detain their Tithes the Grantee presents to the first Benefice and his Clerk is instituted The Incumbent is a Bankrupt within this Division and the Assignee of the Commissioners shall have Debt upon the Statute for the Tythes and the Farm in Ireland 3. Points upon the Statute of 31 Eliz. cap. 6. 1. IF a presentation in consideration that the Presentee gave money to the poor is Simony 2. If the Ordinary's makeing a Minister in consideon that he gave money to the poor makes the Benefice void immediately after his Induction 3. If the Parishioners may refuse to pay their Tythes to a Simonist One Point upon the Statute of 21 H. 8. cap. 13. of Pluralities ONe hath a Benefice of 5 li. value accepts a Benefice of 10 li. value and afterwards recovers Land to the first of 20 li. value per Annum whether this makes the first void by the Statute Three Points at Common Law 1. IF a Presentation by parol be good 2. One hath the next avoidance and presents and his Clerk is instituted and dies before induction if his turn be served 3. One Presents and his Clerk is instituted and before induction another presents the first Presentee dies the second is instituted if good Points upon the Statute de Bankrupts 1. IF a Merchant turning Priest and then become non solvent of his former debt be a Bankrupt within these words Using or exercising the Trade of Merchandizes 2. Whether lying in Prison in the Admirals Court for a Cause whereof they have no Jurisdiction be a yielding of himself to Prison and if they have Jurisdiction 3. Whether Creditors of Ireland may sue here that is whether a man may be Bankrupt here for Debts in Ireland 4. Whether Debts given by Statute for Tythes be liable to his Debts A Statute giving an Action of Debt this Debt may be transferred 5. Whether Goods in Ireland may be sold by Commissioners here 1. Grantee of a next avoidance presents A. by parol to a Benefice of 5 li. value and the Clerk is instituted The reason as it seems why one cannot present by parol is quia as Linwood saith Laieus potest variare and then if he name one one day c. dif qt Clericus laicus â—resentat Again it may be said that it is an Authority given to the Ordinary and Authority ought to be by Writing and so all things not manurable as to be Attorney grt of Rents Advowsans and Reversions But to this the Divines say they receive the Authority from the Parent but as they do confess that for Tythes Testaments and Marriages they had of the gift of the Laity so the Laymen have the nomination c. from them for before Churches were indowed with Lands c. But I intend this no question our Books are direct that an Infant may present So is 8 E. 2. Fitz. praes 10. If Gaurdian by nurture present it must be in the Infants name 27 E. 3. fol. 89. The reason is for he shall be Gardian of nothing but for that which he may account 26 H. 6. Grts. 12. One may present by a Letter Missive 19 E. 3. qua imp 60. For direct authority by Husey quod fuit concess the King may present by parol But Merchant of Ireland and indebted agrees with Patron and Ordinary that for 10 l. given to the Poor the one shall present him and the other make him Minister and here rises two of my Questions upon this Statute of 31 Eliz. The Statute names not Simony but saith if any for Money Gift Reward or Profit directly or indirectly c. whether giving 10 li. to the Poor to be presented be Simony 2. M. Justice D. and others that have read here before me do vary all agree that to do charitable acts as to build a Bridge marry a poor Maid preach three times a Week to teach a School is Simony But to give to the Poor
Commissioners may sell then there is their Authority the Vendee shall compound that is a second action which must be done if it may be done Hillary 38 Eliz. A Grant was made to the Mayor and Commonalty of London that the Mayor should have the search c. of all Handicrafts and should punish them but granted no Court where the same should be punished this was good for to search and to discover but void for him to punish but it must be punished as it may be otherwise The Statute of 5 Eliz. cap. 13. of Highways saith Who comes not at the common days shall forfeit and orders that the offence shall be presented at the next Sessions c. Upon pain of Forty Shillings no Certificate is made yet the offence shall be punished 3. But now we are upon the point of Fines a question rises in this Case whether two Fines or but one or no Fine be due to the Lord and I think a Fine is due Plainly two Fines should have been paid one to the Lord of the Mannor upon the surrender of A. to C. and another upon the sale by the Commissioners as it is in the 4th Report fo 22. the heir surrenders before admittance the Lord shall have two Fines But in Hubbard and Hammond's Case it is said no Fine is due to the Lord before admittance for the admittance is the cause of the Fine and if after admittance it be denied it is a forfeiture But I take it in this case the Lord shall have no Fines for the Statute must have a reasonable construction and indeed for all parties according to equity and in all Statutes where the ordering of things is referred to mens discretions equity and good Conscience ought to respected and therefore it is said 3 E. 3. An accompt ought to be amended by the Auditors according to equity and good faith But what remedy hath the Lord for it 4. But here a Fine is tendered and refused now the question is double 1. What remedy generally 2. Whether it be lost for ever or not For the first if it had been in a case that the Lord could have admitted him he should have had the ordinary remedy as all Lords have for their Fines that is upon presentment of a Surrender or of the death of a Tenant or of sale by Commissioners the order is to call the Party that should be admitted and if he come not in time to seize his Land But here can be no Calling for here 's no Court Surely I think as the Vendee may enter without admittance so the Lord may enter again upon him and seize the Land till his Fines be paid but these Fines have been tendred and refused We see that tender and refusal in many cases is peremptory as Littleton in case of Mortgage 27 E. 3.88 Un distr pur dam. fesant si avoyde the Tenant pleaded that before the taking at the taking and after the taking he tendered sufficient amends and the Avowant refused he hath lost his damages and shall pay damages c. 22 Hen. 6.44 A Man is bound in an Obligation to stand to the award of J. S. he awards that the one shall release the other who tenders a release the other refuses in Action of Debt sur le ob tender and refusal is a good plea sans dira uncor Prist But yet in the same case it is put That if Money had been awarded and tendered and refused the Bond had been saved but the duty had remained 45 E. 3.9 The Lord destrains the Tenant tenders the Lord refuses yet the Rent is not lost but at another time the Lord may distrain Brian If the Tenant tender his homage and the Lord refuse he cannot destrain but upon a request if the Tenant refuse he may destrain So here the Tenant tenders his Fine the Lord refuses I take it the Fine is not lost but after a new request the Lord may seize 5. The last point upon my Statute is a Bankrupt purchases a Copyhold and the Tenant surrenders into two Tenants hands to the use of the Bankrupt and now he will not be admitted whether the Commissioners shall sell the Copyhold And I think they shall by the very words of the Statute which are That the Commissioners shall sell all Lands which the Bankrupt shall purchase with any other Persons of trust or to his secret use If then they may sell Lands wherein he hath secret use much more Lands wherein he hath an express use And in this Case if his negligence to pray to be admitted or his absence beyond Sea shall hinder the present Sale and he die his heir may be admitted after his decease And then a greater Question will rise Whether the Land may be sold or not 2. A Copyholder of Inheritance where the Custom is that the Wife shall be indowed surrenders into the hands of two Tenants to the use of the Mayor and Commonalty of D. in Fee and dies the Wife marries with I. S. a Merchant the Mayor and Commonalty are admitted the Heir of the Copyholder enters I. S. and his Wife affirm a Plaint in the Lords Court in nature of a Writ of Dower and recover against the Heir the Mayor and Commonalty enter I. S. and his Wife sue a Precept in nature of a Scire facias against the Mayor and Commonalty for to have a a Writ De Dote assignanda and damages I. S. becomes a Bankrupt the Commissioners sell the Copyhold and assign the damages which shall be recovered the Vendee compounds with the Lord. This is a good sale for a third part of the Copy-hold during the Coverture and a good Composition but the Assignment of the Damages is void 3. A. Is Tenant in Tail of a Mannor where the Custom is that the Wife of a Copyholder shall have a Widow's Estate A. grants white Acre to B. by Copy for life and after he makes a Lease of white Acre for life to F. the Wife of B. dies A. makes a Feoffment of the Mannor to G. and all the Tenants attorn A. dies B. takes a second Wife and dies the Issue in Tail enters into the Mannor the second Wife takes M. to Husband who becomes a Bankrupt the Commissioners sell white Acre the Vendee compounds with the Issue in Tail and enters F. dies The Sale is good during Coverture and the Composition is good 4. Baron and Feme have issue A. a Daughter the Baron dies the Mannor of Sale is given to the Feme for life the remainder to the Heirs of the Baron and Feme A Copyholder surrenders to the use of himself in Tail the remainder to A. in Fee the Feme takes a second Husband and hath issue B. another Daughter and dies A. enters the Copyholder suffers a customary recovery and dies without issue his Heir being a Merchant and Bankrupt B. enters the Commissioners sell the Copyhold the Vendee compounds with B. The Sale is good but the Composition