because nothing vested in the Queen nothing can vest in the King as successor for a thing cannot be vested in one as heir or successor which was never vested in the Ancestor and he vouched Bullocks case in 10. Eliz. Dyer 21. Ed. 4. of election also it cannot vest in the King Primarily because he was never partie to the Iudenture of lease and he cited a case to be adjudged accordingly betwixt Founds and 29. Eliz. 11. H. 7. that he who is not partie to the Indenture shall not be primarily bound nor shall primarily take by the same Indenture and it is inconvenient that this should be a good inrolment and where it was said of the other part that a bargain and sale is good enough although it be not inrolled in the life of the parties so that it be inrolled within 6. moneths to that he well agreed for by the bargain and sale an use passeth at the Common Law without help of the Statute and this without inrolment and the Statute of inrolments restraineth it not but that it may pass well enough at this day and so the Statute perfects it so that it be within 6. moneths indifferently and therefore it is good notwithstanding the death of the parties and he concluded with the Book of the 19. Eliz. Dyer fol. and wheras it was said to be resolved contrary in an authoritie not printed he said that he believed the printed Book and vouched also the case cited before in Butlers and Bakers Case Cook lib. 3. to the third point it seemed to him that although the inrolment be good yet that should not avoid the estate by relation for a relation is not good to avoid mean conveyances without an antient right as if the Kings Villein purchase lands the King now hath right and therefore an office found after shall relate to avoid all mean conveyances and he said that relations are not so certain wherefore a man may make a ground for every case hath his particular reason and therefore to some purposes an attornament ought to relate but to other purposes it ought not to relate and therefore an attornament cannot relate to intitle a grantee to rents due between the grant and the attornament and so in this case if the inrolment had been in the life of the Bishop and of the Queen yet it could not have given to her the mean profits between the grant and the inrolment and he vouched a case in Butlers and Bakers case and the 11. H. 7. that a relation shall never be prejudicial to a stranger for his estate lawfully executed and therefore if a feofment be made to a husband and wife and to a third person and after the husband and wife are divorced for a precontract yet they shall take but a Moitie as if they were married also it is a rule that an estate vested cannnot be made Tortious by relation see Butlers and Bakers Case and he vouched a case to be adjudged betwixt Wind gate and Hall in the Kings Bench Mich. 31. 32. Eliz. that if a Statute be acknowledged to a Common person and another Statute to the King by the same Conusor and after the Statute acknowledged to the common person is extended and the Conusee in possession and also the King sues execution of his Statute he shall not avoid the estate lawfully executed in the first Conusee as it was there holden but the Barons said una voce that if such a case should come in question before them they would hold the contrary for the King and for the fourth point viz. if the confirmation were good being made before inrolment of the lease and so upon the matter before any lease in being to which the Counsel of the one part nor of the other were provided to speak Walter said that the confirmation was not good for Littleton saith that a thing or estate which is not in being cannot be confirmed and Tanfield chief Baron said and others also that this was the principal point of the case and the great doubt is of the other part viz. that this is not good and therefore advised them to argue it at another day and Walter said that the confirmation is not good in regard it is not of record nor inrolled and he vouched the 26. of E. 3. fo 20. that the King cannot take notice of any thing without record the next Term upon the first Tuesday it was appointed to be argued again and Doddridge the Kings Serjeant observed foure points First if any inrolment be necessary in the case Secondly admitting that the inrolment be requisite if here be a good inrolment being made after the Kings death Thirdly if the confirmation of the Dean and Chapter be of necessitie to be inrolled Fourthly admit that the confirmation need not to be inrolled and that the lease ought to be inrolled then if this confirmation be good because it was before the inrolment of the lease as to the first he conceived that aswel a Chattel real as a thing personal may vest in the King without Record for it should be inconvenient that Chattels should be inrolled First for the infinitness Secondly for the small value of them in the judgement of Law and he vouched 40. Assises pla 35. of a Legacy devised to the King and 37. H. 6. fo 10. if a Chattel be given to the King there needeth no record and the 28. E. 3. fo 23. the King brings a quare impedit upon a grant of the next presentation without record and yet it was good 21. H. 7. fo 19. an obligation may be granted to the King without record 35. H. 8. Brook prerogative and 33. H. 6. the Baily shall have aid of the King and he vouched also 2. E. 6. Brook prerogative and 35. H. 6. fo 3. Fitz. villinage and Brook prerogative and the 21. H. 7. fo 8. if a man possest of a Term be outlawed this Term is in the King by outlawry without Record to the second point he thought that the inrolment was good after the Queens death for the inrolment ought to relate as it appears by 1. H. 7. fo 28. and this relation disaffirmeth the mean estate and gives also the mean profits and as to the point of relation he vouched Nichols Case Plowden where the entrie of the heir once lawful was made unlawful by relation and he vouched also 14. H. 8. fo 18. in the end of Wheelers Case and by the 4. H. 7. fo 10. a man seised of land is attainted of Treason the King grants this land to A. the person attainted commits a Trespass and is restored by Parliament the Patentee shall never have an action of Trespass because this restitution takes away the cause of action and to prove that the inrolment may be well enough after the Queens death he said that the said case put to be resolved in the 19th of Eliz. Dyer fo 355. concerning the Duke of Somerset was after adjudged contrary to
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
the Plantiffe shall be outed to take advantage of a bad plea and so upon the whole matter it seems that judgement shall be given in the ejectione firme for the Plantiffe Altham second Baron to the same purpose there needs no special day to be given by the Iudge of nisi prius although that it be upon a Collateral matter or plea for by the record in this Court a day is given to the Iurors conditionally viz. if the Iustices of nisi prius at the Assises do not come c. but to the parties it is given absolutely fee 6. Assises pla 7. and L. 5. E. 4. fo 2 3 and 4. where there are several cases to this purpose see 9. E. 3.21 H. 6. fo 10. if the Defendant make default at nisi prius a new distress shall issue to the same Iurors to be here in Bank and 3. H. 6. fo 8. and 9. if a man appear and plead he shall never take advantage of any discontinuance Also it seemeth that the plea is not good and to say that the word Tenementorum refers only to the odde acres and not to the Mannor it seemeth that it refers to all but if it shall be taken to refer only to the odde Acres yet this is not good and this is proved by the Book in L. 5. E. 4. fo 110. for a plea to the writ ought to be alwayes certain and this case also answereth that which hath been said that the demurrer confesseth the matter against the Plantiffe for I say if you plead a release in Bar of a debt and shew no place where the release was made this demurrer is no confession of the release except that the cause of the demurrer fall out against me wherefore in respect that the plea is not good and is peremptory to the Defendant as other pleas to the writs are for this cause I conceive Iudgement shall be given for the Plantiffe Snig Baron accordingly that the plea is not good for the not shewing of a place certain wherein the entrie was as by the matter of discontinuance it seemeth that the day of nisi prius is all one with the day in Bank and therefore there needs no day to be given and for that the death of any of the parties after the verdict and before the day in Bank shall not stay the judgement the Books which were cited on the other parts are different from our case for there the suit was adjourned into another Court and the Courts in the Country are not as the Courts here and therefore it was necessary that in such cases a day ought to be given for the manner of pleading we ought to give judgement against him who pleads the plea notwithstanding the matter admitted by the Plantiffe wherefore judgement shall be given for the Plantiffe Tanfield chief Baron accordingly the plea whereupon the issue was joyned was for three Mannors and lands in three Towns and entrie is alledged to be in two Closes called c. parcel of the premises in Bar of the Action if the Defendant in liew of not guiltie plead an affirmative plea and at nisi prius he pleads another plea then the entrie ought to be that the Defendant relicta verificatione c. but in our case such an entrie needs not the plea here ought to be more certain then others for two reasons First it is pleaded in abatement of the writ Secondly it is in delay of the Plantiffe and to which no rejoynder can be made as to the plea it seemeth it is not good for by 10. H. 7. fo 16. a quare impedit was brought by an Administrator of a grantee of a next avoidance and shewed that the Bishop of Sarum granted Administration to him the Defendant saith that the intestate had bona notabilia in divers Diocesses and so the Administration void and shewed in what Diocesses the goods were but shewed no place where they were and therefore it was adjudged that the plea was not good because he did not shew a place c. see 2. R. 3. and 5. H. 7. accordingly and this plea shall not be amended by a rejoynder as is 21. H. 7. also to say parcel of the premises this cannot be intended that parcel of three Mannors or of the three Towns in certain and therefore the plea cannot be good because there is no place from whence the venue should come and it is inconvenient that the venue should come from all if the place where c. lies but in one Town for as it appears in Arundels case Cook lib. 6. if a Mannor be alledged to be within a Town the venue shall come from the Town because it is a place more certain as to the general demurrer that the plea aforesaid is lesse sufficient in Law c. in 18. E. 4. it appears that in debt upon an Obligation the Plantiffe doth not shew a place where the Obligation c. and the Defendant confessed the Action yet notwithstanding this fault Iudgement ought to be given against the Defendant but this differeth from our case because here is an express confession and in our case here is not also here needs not to be shewed any special cause of demurrer but advantage may be taken well enough upon the general demurrer but if the demurrer were that the plea amounted to the general issue only there ought to be shewed a special cause or otherwise no advantage to be taken and he cited the agreement of seven Iudges to be at Serjeants Inne in Fleetstreet this Term in a writ of Error in Dickensons case the case intended was between White and Priest parties in an Action upon Trover and conversion and the Record thereof is in the Kings Bench Trin. 7. Jac. Rot. 843. as to the matter in Law touching the discontinuance for want of a doy given by the Iudge of nisi prius it seemeth there is no discontinuance in this case for there needs not to be any day given as our case is yet in some case the Iudge of nisi prius ought to give day but that shall not be a new day but only the day within contained and that but in special cases viz. if the issue be joyned and at the shewing of the evidence there is a demurrer here the Iudge giveth to the party the day within contained as it appears in 10 H. 8. Rot. 835. and Hill 11. H. 8 accordingly in the Common Pleas but Hill 36. Eliz Rot. 448. upon non-suit at the Assises no day given so if the party confess the Action and so if there be a bill of exceptions yet no day shall be given Hill 38. Eliz. Rot. 331. in the Kings Bench but peradventure it will be said that these Authorities do not match with our case because it is upon a material plea but I say it is all one and therefore in case of a release pleaded after the last continuance this is recorded and yet no day given as appears Hill 4. H. 8.
come ceo only of foure Bullaries if this fine and the use of the estate passed thereby shall be directed by the covenant it was the question and it was moved for a doubt what Bullarie that shall be intended whereof the fine is not levied by reason of the incertaintie quaere and it was adjourned Nota that an estreate of divers fines imposed upon several indictments at the Quarter Sessions for several Riots was sent into this Court and the estreat here being mentioned not for what offences the fines were imposed and the records of the indictments were in the Crown office by a Certiorari and the chief Baron Tanfield said that the estreat was insufficient and we ought not to send out Proces upon them because they do not mention the quality of the offence for which the fines were imposed and therefore it may be discharged by Plea yet if the estreat be not warranted by the indictment so that the indictment is discharged for insufficiency in the Kings Bench the Record thereof may be certified into the Chancery and by mittimus transferred hither and we may discharge the estreat and Altham Baron agreed that the partie grieved by such fine upon an insufficient indictment may plead all this matter and spare to remove the Record and if the Kings Attorney will confess the plea to be true it is as good as if the Record had been removed which was not denied An Amercement for a by Law IT was moved for the King upon a lease holden for him that I.S. was amerced 10. l. because he received a poor man to be his Tenant who was chargable to the parish contrary to a pain made by the Township and thereupon Proces issued out of this Court and the Baily distrained and I. S. brought Trespas and it was said by the Barons and ordered that if I. S. will bring an action for the distraining for this amercement be it lawfully imposed or not yet I. S. shall be restrained to sue in any other Court but in this and here he shall sue in the office of Pleas if he will for the Bailiff levied it as an officer of this Court and for the matter Snig said that if I. S. received a poor man into his house against a by Law made in the Township there is good cause of amercement but by Tanfield it is nothing to us that they have a custome to make by-Lawes herein against a by Law made by us also a leet of it self hath no authority to make by Lawes or such an order but by custome it is good Snig and Altham Barons it is good policy to make an order with a pain in a Leet that no person shall receive any such Tenant as shall be chargable to the parish but clearly the Steward cannot amerce one for such a cause without an order with a pain made before Sir John Littletons case SIr Iohn Littletons case was that all the lands of a Monastery were granted unto one Dudley reserving 28. l. rent yearly for a Tenth of all the laid land according to the Statute and after Dudley granted the greater part of this land to Littleton and that he had used upon the agreement made between Dudley and him to pay 20. l. yearly for the Tenth of his part and Dudley had used to pay 8. l. yearly for that which he retained and after Dudley was attainted whereupon his part of the said land came to the King and now the Auditor would impose the charge for all the Tenth upon Littleton but by the Court although the Tenth was Originally chargable and leviable upon all and every part of the land yet it being apparant to them that part thereof came to the Kings hands it was ordered that the land of Sir Iohn Littleton should be discharged before the Auditor prorata and so it was and Littleton to pay only 20. l. yearly Sweet and Beal NOta that in Michaelmas Term 6. Iac. upon a special verdict this case was depending in the Exchequer viz. Anthony Brown devised a term to his wife until the issue of the body of the Devisor accomplish the age of 18. years bringing up the said child Provided that if the devisor die without issue that then the land shall go to the said wife for term of her life paying to the sister of the Devisor 6. l. 13. s. 4. d. yearly which he willed to be paid at two feasts half yearly and that if it be arrear then it shall be lawful for the sister to distrain and to detain the distress until it be paid and the Iury found that the devisor had issue at the time of his death but that the said issue died before he accomplished the age of 18. years and they found also that the rent of 6. l. 13. s. 4. d. payable to the sister was not paid at one day in which it was payable and that no demand was made for it and that Moil Beal who was the right heir entred for the condition broken and made a lease to the Plantiff who being outed by the wife brought an Ejectione firme and Chibborn of Lincolns Inne argued that the entrie of the heir is lawful first he said when he devised to his wife until his heir come to the age of 18. years bringing up the said heir if in this case the heir die within the said age the state of the wife is determined by reason that the education was the cause the land should continue to the wife and the cause being determined by the death of the heir before the said age therefore the estate is also determined and upon that he bouched a case in Mich. 3. Iac. one Collins devised that one Carpenter should have the over-sight and managing of his land until his son should attain the age of 5. years and the son died before he attained the said age and it was agreed admitting that Carpenter had by that devise an interest that it is now determined by the death of the heir to the second matter viz. when it is limited that if the devisor die without issue that then the wife shall have it by that it seems to me that the wife shall not have an estate for life by these words as our case for at the time of the death of the devisor he had issue so that it cannot be said that he died without issue although now we may say that he is dead without issue but in regard that the words of the will are not performed according to the proper intendment of them the Iudges ought not to make another construction then according to the litteral sence the litteral construction being properly the words to bear such a meaning and this as he said may be proved by Wildes case in Cook lib. 6. but more strong is our case because in a case which carrieth the land from the heir there ought to be a strong and strickt and not a favourable construction made to the prejudice of the heir
and therefore he vouched a case between Scockwood and Sear where a man devised part of his land to his wife for life and another part of his land until Michaelmas next ensuing his death and further by the said will he devised to his younger son all his lands not devised to his wife and adjudged that by the said words the younger son shall have only that parcel which was devised to the wife for life and not that which was devised unto her till Michaelmas and yet by Popham it appeareth that his intent was otherwise viz. that all that should go to his younger son so there ought not to be a strained construction made against the heir and so in our case the words being that if he die without issue c. that then it shall go to his wife herein as much as he had issue at the time of his death it cannot be said that he died without issue but that he is dead without issue and this appeareth by the pleading in the Lord Bartleys case in Plowden and he vouched also a case in the Kings Bench 4. Jac. between Miller and Robinson where a man devised to Thomas his son and if he die without issue having no son there it was holden that if the devisee had issue a son yet if he had none at the time of his death the devisee in the remainder shall have it yet he was once a person having a son and so in our case there was a person who did not die without issue and he vouched also the case of Bold and Mollineux in 28. H. 8. Dyer fo 15.3 when a man deviseth to his wife for life paying a yearly rent to his sister and that if the rent be not paid that the sister may distrain it seems to me that this is a conditional estate in the wife notwithstanding the limitation of the distress and he vouched 18. Eliz. in Dyer 348. which as he said proved the case expresly for there in such a case it is adjudged that the devisee of the rent may after demand thereof distrain and yet the heir may enter for the not payment of the rent although it were never demanded so that the subsequent words of distraining do not qualifie the force of the condition although there be there an express condition and in our case but a condition implyed and he said that it seemed reasonable that such a construction for the distress and condition also shall stand as appeareth by divers cases that upon such words the Law will allow a double remedy and therefore he vouched Gravenors case in the Common Pleas Hill 36. Eliz. Rot. 1322. where a lease was made by Magdalen Colledge to husband and wife so that if the husband alien that the lease shall be void and provided that they do not make any under-tenants and to this purpose he vouched the case of the Earl of Pembrook cited in the Lord Cromwels case Cook lib. 2. where the words amounted to a covenant and a coudition and if this word paying should not be construed to be a condition then it were altogether void and idle and such a construction ought not to be made in a will and he conceived that this rent ought to be paid by the wife without any demand upon the pain of the condition and therefore he vouched 22. H. 6. fo 57.14 E. 4 21. E. 4. by Hussey and 18. Eliz. Dyer 348. vouched before and so it was resolved as he said in the Court of Wards in Somings case where a man made a devise paying a rent to a stranger this ought to be paid without demand and he said that the Common case is proved when a feofment is made upon condition that the feoffee shall do an act to a stranger this ought to be done in convenient time without request by the stranger and so here it seemeth although a demand ought to be made by the sister yet the wife ought to give notice to the sister of the Legacy so that she may make a demand and therefore he vouched Warder and Downings case where a man devised that his eldest son upon entry should pay to the younger son such a summe of money here the eldes brother ought to give notice at what time he will enter to the intent that the younger brother may be provided to make a demand Edwards of the Inner Temple contrary First it seemeth that by this limitation the wife ought to retain the land until the issue of the devisor should have come to the age of 18. years for this a time certain and as it is construed upon such words in Borastons case Cook lib. 3. that the Executors there have an interest certain so it should be construed here to refer to a certainty which is until the time by computation that the issue should have attained to 18. years and the rather in this case in respect the devisor had otherwise disposed of the land until the son should have accomplished the said age Secondly it seemeth that the wife hath an estate for life not conditional in so much as the words are not joyned in the case the 18. Eliz. Dyer hath been vouched but that was upon an express condition but here it is by implication and then the clause of distress taketh away the force of the implication which otherwise might be thereupon inferred and therefore in 5. Eliz. Dyer it appeareth that the word Proviso annexed to other words makes it no condition in judgement of Law and so in 14. Eliz. Dyer 311. and he vouched also 18. Eliz. Dyer Greens case that if a man deviseth lands to his friends paying to his wife with a clause of distress this is no condition as it is adjudged Thirdly it seemeth that this summe to be paid to the sister is a rent and therefore ought to be demanded or otherwise in judgement of Law the condition shall not be broken and the 21. E. 4. the case of an obligation to perform covenants c. and a case between Wentworth and Wentworth 37. Eliz. that a demand ought to be made for a rent which is granted in liew of Dower for the wife brought a writ of Dower for the land of her husband the Tenant pleaded that she accepted a rent out of the land in liew of her Dower and the wife replied that the said rent was granted upon condition that if it were not paid at certain dayes that it should be void and that she should have Dower of the land and she said that the rent was not paid at the dayes c. but shewed not in her pleading any demand to be made and therefore it was holden evil pleading for such a rent ought to be demanded or otherwise the condition is not broken and so here Nota that this case was appointed to be argued again but after as I heard the Barons amongst themselves resolved to give judgement for the Defendant upon one point only which was that the estate
but otherwise it should be if an express confirmation was requisite in the case for then it had not been good and this difference is where the parties who confirm have an interest and where they have only an assenting power and this is well proved by 29. H. 8. Dyer 40. the Dean of Sarums case and by Cook lib. 5. 81. and 33. H. 8. tit confirmation Thirdly it seemeth that the bare returning of the Commission without an express inrolment is no sufficient matter of Record to intitle the King to the lease for it is without inrolment no more but an acknowledgement and the Deed ought to be of Record to pass the estate 7. E. 4. fo 16. but he agreed that if the Commissioners return an acknowledgement of a debt this is sufficient to make a debt upon Record 2. H. 7.10 but if Commissioners by a dedimus potestatem to take Conizance of a fine receive the Conizance of the fine and return it yet it is not a fine until the final Concord be recorded Cook lib. 5. Tayes case and so here it is no record until the inrolment Fourthly in regard there is no inrolment in the lâ—fe of the Bishop and so no perfect leale in his life this can never be good for this circumstance of inrolment is as requisire to the essence is the attornament is to the grant of a reversion and is causa sine qua non for the successor of the Bishop comes in paramount the Lessor as the issue in tail comes in partly by form of the guift and this is proved by the writ of de ingressu sine assensu Capituli in the. Register and therefore if the Bishop make a lease and dieth this leale cannot be affirmed after his death by the Chapter 33. E. 3. entry Congeable 79.11 H. 7. and yet a lease made by the Bishop is not altogether void by his death as it appears in Cook lib. 3. in Pennants case and he compared this case to the case of Smith and Fuller in Plowden where if a lease be made for so many years as A. shall name the years ought to be named certainty in the life of the Lessor for otherwise it is not good clearly and so here the Lessee ought to come in by the Bishop who was Lessor or otherwise this is no good lease and it cannot be so in our case because it wanteth inrolment to make it a lease in the life of the Bishop Fifthly he said the inrolment after the death of the Lessor shall not have relation to make the lease good for the Queen takes nothing until the inrolment made and therefore all is but words until the inrolment and it differeth much from the case of a bargain and sale for in such case an use passeth at the Common Law before any inrolment and this may relate well enough if the Deed be inrolled after within 6. moneths for the Statute of the 27. H. 8 of inrolments doth not hinder the relation for the words are that nothing shall pals by the bargain except the Deed be inrolled c. so that if the Deed be inrolled in due time it passeth from the beginning well enough but otherwise it is in our case see the 12. H. 4. fo 12. so a fine cannot relate but from the recording thereof for nothing passeth but by the Record and it doth not relate as a bargain and sale c. and as to the exceptions taken to the Bar he said that notwithstanding them the plea is good for it shall be intended the same writing which the information mentions and it is not like to Mary Dickensons case Cook lib. 4. fo 18. where the Plantiff alledged that the Defendant published a forged writing in discredit of the Plantiffs utle and the Defendant said quod talis Indentura qualis c. this doth not answer the Declaration for no like is the same but in our case the Bar cannot be better for the information is that by writing he demised c. and the Bar is that well and true it is that the Bishop by his certain writing made purporting a demise which he pretended to be no demise in fact and if he should say in express words as the information ought to be then he should confess the thing which is matter in law and ought not to take a Traverse to the demise alledged because it is a matter in Law if it be a demise or not to the second exception he said that he needs but to answer the express surmise of the information which is that two Commissioners c. and the Bat is expressy that they did not c. without speaking any thing that the other Commissioners did do any thing as if an action of accompt be brought and the Plantiff saith that the Defendant accompted before A. it is a good plea that the Desendant did not accompt before A. for though peradventure he accompted before another but this shall not be incended so the Bar is good He accepted to the information First it doth not mention within what time the first lease was intolled for the words are modo irrotulat Secondly the information saith not that the deed of confirmation was ever sealed but that the Chapter with their seal c. and saith not sealed and then it is not good wherefore upon all the matter it seemeth that judgement ought to be given against the King Snig Baron that the Bar is good and also the information first it seemeth that here is no Record to intitle the King to this land by the lease from the Bishop for if this deed which purporteth a lease made by the Bishop were found by inquisition to be acknowledged yet it is no sufficient Record 7. E. 4. and 5. E. 4. for the title of the King ought to be by the Record immediately from the party who makes the estate and Mr. Stamford is to be considered that if the King hath an antient right he may peradventure be in actual possession without Record but if he cometh in as a purchaser he shall not have without a Record and this is proved by the case of the Duke of Somerset in 19. Eliz. Dyer and Mackwilliams case in 3. Eliz. and be said that as to the relation if a man seised of a Mannor bargaineth it to me and rent incurreth before the inrolment I shall not have the rent although the Deed be inrolled within 6. monehts after and so of a condition and if a reversion be granted and before attornament of the Tenant the rent incurreth the grantee shall not have the rent notwithstanding any relation as to the point of confirmation he vouched the case of Patrick Arch-Bishop of Dublin in Ireland cited in Dyer also he vouched Dyer fo 105. and by these books it seemed that in this case a confirmation is required to be made and a bare assent is not sufficient and therefore if an incumbent make a lease for years and the Patron grants the next
in 1. Jacobi and no other conviction ever was and yet de facto he continued a Recusant untill his death and his Land viz. two parts thereof were seised in his life and the King answered of 200. l. thereof which incurred in the moneths contained in the Indictment and now a Writ is issued which supposeth the said Robert to be indebted to the King in 20. l. for every moneth be lived after 28. Eliz. untill 1. Jacobi for his Recusancy which amounted to 4000. l. which Writ also commands to enquire what Lands the said Robert Becket had at the time of his death and thereupon it was found that he had divers Lands c. and upon a Scire facias to the Terretenants to shew cause wherefore two parts of the Lands of the said Robert Becket should not now be seised for the debt of the Recusant aforesaid one Henry Becket as Terretenant or Tenant of the Premisses pleaded that the King is satiefied of all the 20. l. and for all the moneths that the said Robert was convicted to be a Recusant and he vouched the Constat thereof under the hand of the Deputy of the Pipe Office and for the residue he said that by 28. Eliz. cap. 6. it is amongst other things enacted that if any person which hath not repaired or shall not repaire to some Church Chappell or usuall place of Common Prayer but hath forborne or shall forbeat the same contrary to the Tenor of the Statute of 23. Eliz. cap. 1. and hath been heretofore convicted for such offence shall forfeit c. provided that it he hath made submission and been conformable according to the true meaning of the said Statute or shall fortune to dye that then no forfeiture of 20. l. for any moneth or for seisure of the Lands of the same offender from and after such submission and conformity or death and full satisfaction of all the arrerages of 20 l. monethly before such seisure due or payable shall ensue or be continued against such Offendor and traverseth without that that there is any Record besides this Writ to charge the said Robert Becket deceased of or for the summe of 4000. l. towards our said Lord the King c. and so prayeth to be discharged thereof Vpon which Plea the Kings Atturney Generall demurred and Coventry argued that the Plea is good he said that there are three Points to be considered First that if a man be convicted of Recusancy in 28. Eliz. for 10. moneths then passed and de facto continueth a Recusant untill his death in 1. Jac. without other conviction if now the King can claim 20. l. a moneth for more moueths then are contained in the Indictment whereupon he is convicted Secondly admit that the King may have the forfeiture for every moneth whereof no conviction was as well as if a conviction had been then if the King can seise the Lands for the payment thereof after his death no seisure being had for it in his life by the Stat. of the 28. Eliz. or if the power of seisure be altogether gone by the death of the Recusant Thirdly admitting that the King shall have more then is contained within the Indictment if the Debt it self be not gone by the death of the Recusant To the first Point there is no President to be found that any man convicted before 28. Eliz. was charged to the Payment of more then that which was within the Indictment and the words of the Statute of 28. Eliz. contained within this Clause which provides for the payment due since the Conviction do not inforce any construction to the contrary and in this Clause the words being do yet remain unpaid are not proper words but for a thing payable before this Statute for so many moneths whereof he was convicted of Recusancy and the words without any other conviction are to be understood for so much as was unpaid of that contained in the Indictment and the last Clause of this Branch of the Statute hath not the words without any conviction and the other Clause provides that by expresse words for the future time every person who shall be once convicted shall forfeit c without other conviction and it was resolved Hill 4. Jacobi in the Kings Bench between Grinstone and Oliver that the Statute of 28. Eliz. alters and adds three things to the Statute of 23. Eliz. 1. That all the money due for Recusancy shall be paid into the Exchequer 2. This limits a time for payment thereof yearly viz. in the four Terms of the year 3. This giveth a penalty viz. power to seise all the goods and two parts for non-payment but all that is only for that which was payable before the conviction and therefoâ—e the words in the Branch which contains our Case have apt words of construction that he shall pay all due for the paine of seisure for 23. Eliz. gives no seisure but imprisonment if payment be not made within three moneths after judgement and so in our case Conviction ought to precede the duty To the second Point it seemeth that the power of seisure within this Statute is gone by the death of the Recusant for before the Statute of 1. Jacobi the power for seisure was but a penalty that if the party fail in payment of 20. l. a moneth then c. and in all cases upon penall Laws if the party die before the penalty inflicted this shall not be inflicted at all and that this is but a penalty he vouched one Grayes case in 1. and 2. Jacobi to be adjudged accordingly Also the words in this Statute which give the seisure of Land appointeth a levying to be of the 3. part for the maintenance of the Offendor his Wife Children and Family and after his death he hath no Wife so that if it be demanded when the seisin must be the answer is then when a third part may be left for his use which cannot be but in the life of the Recusant Also it appoints that the seisure ought to be by Processe which ought to be in the life of the party by intendment Also the Proviso of the Statute of 28. Eli. saith that if any person shall dye no seisure shall insue or be continued aâ—d out case is within those words for in regard there hath been no seisure in his life therefore after his death no seisure ought to insue and the words which purport another semblance of construction viz. and satisfaction of all arrerages are to be understood only in case where there was a former seisure that is in the life of the party and have reference to the words to be continued and that the intent is so he said that the words are so that the Heir shall pay no more but so much as the Land was seised for To the third it seemeth that in this case the debt it self is gone by the death of the party At the Common Law a penalty shall never be recovered against the
words of a fee to be in the feoffor and the Bar confesseth only as of a fee gained in an instant but I agree that if the Bar had been that the Feoffor was Tenant for years and made a Feofment this had been good without Traverse but when Tenant in tail makes a Feofment it shall not be intended that he gained a Fee because it may be he hath purchased the remainder and thereby had lawfully acquitted it as an addition to his estate and here the saying in the Deelaration that Edward Stanley was seised in Fee as a thing material and of necessitie and not superfluous as the pleading in a Declaration for debt upon an Obligation to say that the Obligor was of full age or as a Repetition of the writ which needs not be Traversed and that it appears in 15. Ed. 4. in some case a Surplusâ—ge ought to be Traversed and 7. Ed. 6. Title Formedon the Declaration as in our case ought to be special and 21. H. 7. if a man will maintain debt upon a lease he ought to shew how he was in titled to make the lease also although that in our case the lease for years is the effect of the suit yet I say that the seisin in Fee is the effect of the plea 27. H. 8.50 H. 7.14 in a replevin the Defendant avows as seised in Fee the Plantiffe sayes that he was seised for life and doth Traverse c. and 14. and 15. Eliz. was our very case Dyer 312. and there it is said that the sure way is to take a Traverse as it is also said in 11. Eliz. Dyer also where the Bar saith that one R. was seised in Fee and gave it to the Father of the Feoffor and the heirs of his body he ought to say that the land descended to the Feoffor as son and heir of the body c. also where the Plantiffe declareth of a lease for years made by force of a feofment made the 30. day of August 6. Iac. the Bar saith generally that the 30. day of August 6. Iac. the said Feoffor made a Feofment of the same land to the same persons c. but he doth not say that it is one and the same with the Feofment mentioned in the Declaration so he answereth not our title and for that cause not good and therefore he prayed Iudgement for the Plantiffe Jones of Lincolns Inne to the contrary it seemeth as to the first matter moved that in this case the resioue of the use shall result back to the Feoffor 34. Eliz. Balfores case if Tenant in tail make a Feofment to the use of himself for life without more by Popham the residue of the use shall be to the Feoffee for otherwise the estate for life would be drowned but otherwise it is when a remainder of an use is limited to another in Fee for this saves the drowning or confounding of the estate for life as to the point of remitter it seemeth that it is no other but that Tenant in tail makes a Feofment to the use of himself and his heirs and dies if the issue shall be remitted or not and as to that he said that the Statute of 27. H. 8. cap. 10. hath by express words a saving of all antient rights and therefore the antient right of the estate tail is saved and therefore the issue shall be thereunto remitted and so should the Tenant in tail himself if he had not been within the words of the Statute as it is resolved in Amy Townsends case in Plowden and the authorities of my part are 33. H. 8.54 in Dyer expresly with me and without any quere as to the point of remitter but there it is said that he ought to avoid the lease by entrie as in our ease it is pleaded and as to the pleading it seems there needs no Traverse First because it is matter in Law Secondly we have confessed a Fee in an instant as to the first reason the Declaration is generally of a seisin in Fee and not expresly of a Fee simple and therefore it is matter in Law 5. H. 7. and 11. H. 7.21 the Fee not Traversed 46 Ed. 3.24 in Dower the Defendant pleads a special tail made by one who was seised in Fee the other saith that the Dower had but an estate tail at the time of the gift without Traversing that he was seised in Fee 2. Ed. 4.11 that a seisin in Fee tail is sufficient to maintain an allegation of a seisin in Fee to the second reason it is not alledged expresly that he was seised in Fee but quod cum talis seisitus fuit c. and 34. H. 6.48 he needed not in his Declaration to say that he was seised in Fee Pasch 34. et 35. Eliz. Taylors case if the Plantiffe in a quare impedit alledgeth seisin in Fee and the Defendant confess the seisin by Vsurpation this is a sufficient confession of the seisin in Fee Fitzherbert Title Travers 154. a good case to this purpose and in Moils case cited before on the other side the Plantiffe doth not mention in his Declaration a seisin in Fee absolute and the Defendant saith that A. was seised and gave to the Plantiffe as long as A. had issue of his body he needs not Traverse the absolute Fee Pasch 33. Eliz. in the Common Pleas where there was a stronger case to the replication the Defendant said that the Countess of Devon was seised and leased for life the remainder to her self for life the other saith that the Countess was seised in tail and Traverseth that she was not seised in Fee it is there said that the Countesses estate in Fee need not to be Traversed and yet it was there agreed that in regard it was but matter of form it was aided by the Statute of Jeoffales for that was moved in arrest of judgement Tanfield chief Baron in the principal case the issue of the Feoffor is remitted without entrie notwithstanding the lease because it is not in possession but a lease in remainder and therefore the title of the Lessees is distrained before entrie by the Defendant and therefore the Defendant hath not answered the entrie upon the Lessees for you by your plea destroy the title to this Term which you have allowed them before they were ever in possession thereof and the Declaration is that they were possessed of a Term for years and that you ejected them and to this you give no answer upon the matter for clearly if Tenant in tail make a lease to commence at a day to come and dieth before the day this is meerly void by his death ad quod non fuit responsum see Plowden in Smith and Stapletons case for there it is made a quere and notwithstanding that Tanfield chief Baron with the assâ—nt of the whole Court pronounced that judgement should be entred against the Plantiffe immediately and so it was done Bents case IN a suit depending in this Court between
give money to a patron to make a promise to him c. and the incumbent payes it such an incumbent is Simoniacus by the Civil Law and so if the incumbent pay the mony not knowing it untill after the induction yet he is Simoniacus and by him if a friend gives money and the Parson is thereupon presented though the Parson if he knew not of the money given yet he shall be deprived of the benefice and this difference was certified by Anderson and Gawdey to the Councel table upon a reference made to them by the King touching the filling of benefices by corrupt means and the Statute of purpose forbears to use the word Simonie for avoiding of nice construction of that word in the Civil Law and therefore the makers of the Act sets down plainly the words of the Statute that if any shall be promoted for money c. so that by these words it is not material from whom the money comes and then in such cases for the avoiding of all such grand offences a liberal construction ought to be made as hath been used in such cases and therefore he remembred the large construction which was made upon the Statute of fines in the Lord Zouches case lib. Cook 3. and so upon the Statute of usurie it hath been adjudged that if money be lent to be re-paid with use above 10. l. in the hundred at such a day if three men or one man so long live in these cases all such bargains and contracts are void within the intent of the Statute as it hath been adjudged in the Common Pleas and so it is in Gooches case Cook lib. 5. upon the Statute of fraudulent conveyances and secret Ioyntures also upon the Statute of Simonie it was adjudged although some of the Common Pleas doubted of it in regard a father is bound to provide for his son and Rogers and Bakers case in this Court was an antient case and adjudged for the Plantiffe and as to the other point it is found by the verdict that the presentation made by the Queen to Covel is not revoked nor admitted which words implie that Covel is still living in case of a special verdict and therefore to argue to that point as if it were found that Covel was living yet he conceived that the presentation without institution and Induction is determined by the Queens death and therefore in 2. Ed. 3. a license of Alienation clearly is not good in the time of another King for the license saith which are holden of us c. and by the death of the King they are not holden of him Fitzherberts natura brevium contra 16 H. 8. the nature of a presentment is explained where an Infant would avoid his presentation and in the principal case the Bishop cannot make any admission upon this presentation of Covel after the Queens death for he cannot do that in any manner according to the presentation because that is determined by the Queens death and therefore it seems clearly there needs no repeal in such a case although it appears by some presidents that repeals have been used in such cases and as to the case 17. Eliz. Dyer 339. that proveth not that there ought to be any repeal for it appears there that judgement was given upon a reason altogether different from our case and that was because a presentation was obtained of the Queen a quare impedit depending by her of which suit she had no notice and for that cause her second presentation was void and that was the true reason of that judgement as it is also put in Greens case Cook lib. 6. and I was present Mich. 17. Eliz. when this case was adjudged and the sole reason which they gave for the judgement was because the presentation by intendment could not take away the Action attached by the Queen for then the Queens grant should enure to a double intent which the Law will never tollerate without express words purporting so much but in our case there is no such double intendment and therefore c. but if there had been an admission and institution pursuing the presentation of Covel although no induction yet peradventure in such case there ought to have been an appeal because in such case it is not only the Queens Act but of the ordinary also interposing which is a Iudicial Act also without question we are out of the Statute of 6. H. 8. for here is no grant made by the Queen and a presentation clearly is not within that Statute and for that other reason the presentation of Calvert is good without recital of the Queens presentation also clearly if there ought to be a repeal in the case yet it is not examinable in this Action of Trespass which is possessorie and for the profits only but it may be examinable in a quare impedit and as to Greens case Cook lib. 6. which hath been used as an authoritie in this case that differs much from our case for there the thing which made the Queens presentation void was contained within the very Charter of the presentation and therefore differed from our case wherefore he commanded judgement should be entred for the Plantiffe and so it was Halseys case touching Recusancy THe case in the Exchequer Chamber touching the payment of the Kings Majesties debt due for the Recusancy of John Halsey as Recusant convict deceased with the lands and goods bought in the name of John Grove and Richard Cox Defendant in this Court that John Halsey was indicted and convicted for Recusancy the 18. day of July Anno 23. Eliz. and so remained convicted without submission till his death who died the last day of March 3. Iac. and after his conviction viz. after the 40. year of the Raign of the late Queen Elizabeth did purchase with his own money divers leases for years yet to come of lands in the Countie of Worcester and Warwick in the name of Richard Cocks for himself in trust and likewise did with his own money purchase certain leases for years yet to come of lands in the County of Hereford in the name of the said John Grove all which purchases were in trust for the Recusant and to his use Margaret Field is his next heir who is no Recusant Iohn Halsey hath not paid 20. l. a moneth since his conviction nor any part thereof these lands and leases were seised into the Kings hands for the satisfaction of the forfeitures due for the Recusancy of the said Halsey 14. August 5. Iac. Thomas Coventrie argued for the Defendant the question is whether these lands which were never in the Recusant but bought in the name of the Defendants in manner aforesaid be liable to the payment of his Majesties debts by the said Recusant as above said or not there are three points considerable in the case First if lands purchased by the Recusant in the name of others in trust are liable to his debt Secondly if the land of a
false the Patent is void although it hath these words Ex certa scientia et mero motu and so is 18. Eliz. Dyer 352. where the Patent was ex certa scientia et mero motu c. but there Dyer held that this falsitie in the matter of Recital did avoid the Patent notwithstanding the words ex mero motu c. but he held it otherwise if it were in a consideration which is faise for at that time the point of falsitie in matter of consideration for 100 l. to be paid although it be much contraverted in our Books and it seems in what place soever of the patent it appears that the King is mis-informed deceived in any matter material or concerning his own estate in the thing to be granted that that will dictate the Patent and therefore 17. Eliz. the Queen seised of the Mannor of D. grants all her purpartie of the Mannor of D. if in this case a Common person had granted by such words the Mannor had passed but in the Queens case it will be a void grant because a thing which she intended to pass cannot pass in such plight as she conceived it viz. as a purpartie and 36. Eliz. the Queen granted all her portion of Tithes c. although she had a Parsonage there yet it doth not pâ—â—s for this manner of Appellation implies that the Queen was mis-informed and not well instructed of the thing to be granted and therefore void see Cook lib. 4. in Bozuns case Ex certa scientia et mero motu c. doth not help it also if the King recite that whereas he had such land by the attainder of I. S. where in truth he had it not by his attainder now although that he grants this land Ex certa scientia et mero motu yet this will not pass but if the King be not deceived in the point of intitling himself but in the deducing of his title that will not prejudice the Patent as if the King recite that whereas I. S. had land by descent from his father and he grants it to the King and the King doth re-grant the same to I. S. this grant is good notwithstanding that I. S. had it not by descent from his father see the Lord Lovels case in Plowden that if the King be deceived only in the point of mis-conveyance the Law will not avoid the Patent as if be grant to one and his heirs born at D. the last words are void and the grant is good Pasch 42. Eliz. it was agreed that if the King be Tenant for life or years and makes a lease for one and twenty years this lease is void to all intents against the King because it appears not in the grant what estate the King had and by that lease the King conceived that he had power by his estate to make an absolute lease whereas legally his lease ought to determine by his death so by implication it is manifest that the King was not well instructed of his estate 39. Eliz. the Queen leased for twenty one years to begin whensoever the land should fall in possession by the expiration of any former lease then in being if in that case there were no precedent lease then in being this lease will be void for these words implie that the Queen conceived her former lease to be in being and so impliedly she is deceived in her intent in like manner in the principal case the Queen was deceived in her intention for the recital is that all the estate which Potter had is come to the Queen by surrender and in truth all the estate is not come unto her in respect of a mean estate to Wilkinson c. as to the second point it seems the consideration being that he did assume to new build implies asmuch as if he had said he faithfully promised and then it is all one as if it had been for that that he shall build for it is a consideration executory and is of value and then the not performance thereof vitiates the Patent and the estate was as if it had been by a limitation to cease and these words that he did assume upon himself cannot be construed to any other intent but unto an executory consideration because the King hath no remedy by way of Action for the breach of this promise and it cannot be conceived that the Covenant is satisfied in giving securitie for it is observable that the Covenant is but the ordinary Covenant viz. to repair and keep repaired and so a Trivial reparation will satisfie that but it appears that the Queens intent was not to make the lease for such a petty consideration because the Lessee had undertaken at his own charges to new build the Mills but the express Covenant doth not binde him to the new building of them and in 6. Eliz. the like lease was made of the Mannor of Lidlescourt to Customer Smith and the lease was for that that he assumed that he at his costs would c. and he avoided his lease upon a former lease made to A. of the premises and in truth the lease formerly made to A. was meerly void upon the making of this lease though perad venture the condition may be good and the consideration performed but the Queen was not well instructed of her title also in this case the lease to Hitchmore is not determined by a condition as it hath been objected but it ceaseth and is determined by a limitation and this may well enough revest in the Queen without entrie or office because it was but a Term and such words purporting an executory consideration in the Queens case implies as much as if in case of a Common person it had been said expresly to cease upon an act not performed for in the Kings case the Law speaketh and if so then the lease for years is void and the Patentee may enter without office and all considerations executory in leases made by the King amount to a conditional limitation and then he who will have benefit by such a lease ought to aver the performance of the consideration as if a man declare upon a lease made unto him c. if I. S. should so long live he ought to aver his life in the Declaration because it determines by limitation at his death but otherwise it is upon a condition if a Parson make a lease for years the Lessee must aver the life of the Parson because by his death the lease ends by a limitation implied but otherwise it should if it were upon condition for the performance of that needs not be averred but that ought to be shewed on the other part and so it seemeth that as wel for the point of falsitie in the recital as also in the not performing of the consideration that the lease is void and the Plantiffe should have judgement which was entred accordingly Snig Baron was of opmion against all the other Barons and he held that