impedit praesentare to the Church of D. the Defendant saith that there is no such Church 22. E. 4. fo 34. an action was brought against I. S. Maior of D. and he Traversed that there is no such Corporation Tanfield chief Baron said that if in an action of Trespass the Defendant saith that I. S. was seised in fee and infeoffed him without that c. and the Plantiff saith that I. S. was seised in fee and infeoffed me without that that there was any such person as I. S. in being this is no good Traverse Hern Baron seemed that this Traverse is good in the principal Case but he was once of Counsel with the Plantiff and it was moved that the Case should be Compounded An Information against Page IN an Information against Page and another upon the Statute of 3. 4. E. 6. cap. 21. for buying of Butter and selling of the same by retail contrary to the form of the Statute upon not guiltie pleaded the Iury found one of them only guiltie both of buying and selling and the other not guiltie and it was moved that no judgement may be given in this Case in asmuch as the action is conceived upon a joynt buying by two and it appeareth that this is but by one but it was argued that judgement ought to be given for it cannot be intended in Law as to this purpose a joynt buying for the wrong is several and in proof thereof was cited 36. H. 6. fo 27. the 11. H. 4. Dyer fo 194. or 195. accordingly also this action is for a wrong done to the Common-wealth which is a several wrong by either and to this purpose was cited 40. E. 3. fo 35. 36. H. 6. cited before and 5. H. 5. fo 3. where an action de malefactoribus in Pareis was brought against three and one only was found guiltie and judgement was given against him and there is no difference as to this purpose between this Case and an action of debt upon a joynt contract made by two as appeareth by 21. H. 7. and Partridges Case in Plowden where it is said that the bargaining is but matter of conveyance to the action and according unto this was cited 33. H. 8. Brook tit issue and also 28. H. 6. fo 7. and 36. H. 6. fo 29. and a Case was adjudgeed in Mich. 35. 36 Eliz. in the Kings Bench which proves the same also where an information was brought supposing the Defendant to have bought Cattle of two contrary to the form of the Statute and it was found that he bought them but of one and yet judgement was given Hitchcock to the contrary and he argued that no judgement ought to be given for he said that if an information be brought against two upon the Statute of usury and one only is found guiltie yet no judgement may be given in this Case to which the Court agreed and he cited Dyer 160.5 Ma. where two sued in the Court of Admiraltie one for an offence triable within the bodie of the Countie contrary to the Statutes of 13. 15. of R. 2. and an action was brought against one of them only and good and he vouched also 22. Eliz. Dyer fo 370.2 R. 3. fo 18. where three brought an account against one he pleads he was never their receiver and the Iury found c. and he cited a case to this purpose an information was brought against two for buying of Cattle of one B. and for selling of them contrary to the form of the Statute and in this Case the Iury found the Defendant not guiltie for the buying them of B. but that he bought them of one P. and upon an attaint of the Iury the opinion of the Court was in this case that though the verdict was affirmed yet no judgement ought to be given thereupon and this was the true Case of Lidwood and Pearpoint cited before on the other side as George Crook said York and Allein A Man recovered damages in an action upon the Case against B. who at the time of the judgement was joyntly seised in fee with C. and that after B. and C. aliened the partie who recovered is outlawed the King eight years after this outlawry extends the moitie of this land for these damages recovered against B. and it was moved if he shall have them in extent for them or not also if he shall have it without a scire facias and the Barons were clear in opinion that he shall have it in extent for it was liable to the extent of the partie outlawed before the Alienation and then when it comes to the King by the outlawry although it be after the Alienation it continueth extendible for the King although the Alienation was before the outlawry It was admitted by all the Barons that if a Coppiholder surrender to the use of a younger son and dies that this younger son cannot bring an action until admittance but if the Copihold had descended to the heir he may have an action before admittance see Cook Coppihold Cases lib. 4. fol. 22. and also it was said that all Coppiholders of the Kings Mannors may now have admittance into their Coppihold estates well enough and the order for the stay of their admittances which was made heretofore is now dissolved and quashed Dennis against Drake DEbt was brought by Dennis against Drake Sheriff for an escape a man had judgement in the Kings Bench and a writ of error was brought within the year and after the year passed the judgement was affirmed in the Exchequer Chamber and within a year after the affirmation a Capias issued to the said Drake the Sheriff who took the partie and suffered him to escape and this being the Case upon the declaration in this action the Defendant demurred and all the Barons said that there is no question but a Capias may well issue within the year after judgement affirmed without a scire facias though it be more then a year after the first judgement and it seemed to them that there was no difference though that the writ of error was not brought untill after the year of the first judgement given although in such case there be an apparant neglect in the partie who had not sued his execution within the year and therefore he was enforced to a scire facias thorough his neglect whereas if error had been brought within the year he had never been driven to his scire facias in this Case yet for asmuch as when the judgement is affirmed this is all one as a new judgement they conceived it made no difference and Tanfield chief Baron said that it had been often so judged in the Kings Bench. It was said here that if a man be instituted to a benefice he ought to pay the first fruits before induction by the Statute but by the Common Law it was otherwise for he is not to have the temporalities until induction and therefore he could not pay the first fruits
Baron answered that he should have them of right see Bartues case in Dyer but the Lord Treasurer said that he saw no reason to satisfie himself thereof Doillie against Joiliffe DOillie Plantiff against Joiliffe in an Action upon the case for false imprisonment of the Plantiffs wife the case was that Leonard Lovies was formerly Plantiff in an action in the Common Pleas against Julian Goddard a feme sole and in this action the Plantiff and Defendant were at issue and a venire facias was awarded and before the return thereof the said Julian took to husband Doillie now Plantiff and after upon a special verdict found in the suit judgement was given in the Common Pleas for the said Julian against th◠said Leonard upon which judgement Leonard brought error in the Kings Bench and a scire facias was awarded against Julian by the name of Julian Goddard as a feme sole and she appeared by Attorney as a feme sole and this as the Defendant said in his answer was by the consent of her husband now Plantiff and after judgement was given to reverse the judgement in the Common Pleas and the entrie of that judgement as it was pleaded by the Defendant here was quod praedict Leonard Lovies recuperet c. versus praedict Julianam c. and costs and damages were taxed c. upon which judgement the said Lovies sued a Capias ad satisfaciendum against Julian Goddard and by vertue of that writ the Defendant here the Sheriff or Devon took the said Julian being the Plantiffs wife and imprisoned her until the Plantiff paid 10. l. which was the cost taxed by the Kings Bench for her deliverance upon which imprisonment the husband only hath brought his action against the Defendant being Sheriff Davenport of Grayes Inne argued for the Defendant and first he thought that between the parties to the error and the first action in the Common Pleas there is an estoppel and admittance that the said Julian continued a feme sole for the process in all the proceedings ought to be as it was in the Original and he vouched 18. Assise pla 16. by which book it appears that if a man bring an assise for lands in the Countie of O. and the Tenants plead a Common recovery of the same land in the Common Pleas this doth conclude the partie to say that the lands did lie else where c. also if an original be depending and before the first Capias or process awarded the Defendant intermarrieth and after a capias issueth against her as a feme sole this is well awarded lib. 5. E. 4.16 and also 5. E. 3. fo 9. and 10. also he said that such a thing as is done between the plea and not after the judgement is not material to alter the proceedings in that course it was begun for the same partie against whom judgement is given shall error have against him for whom the judgement is given except she had married after the judgement for then he agreed that the writ of error shall be brought by the husband and wife in case judgement had been given against the wife while she was sole 35. H. 6. fo 31. and 12. Assise pla 41. and it also appears by 18. E. 4. fo 3. if Trespas he brought against a married wife as against a feme sole and she appears as a feme sole and judgement is given and execution accordingly this is good until it be reversed by error and the Sheriff in such case never ought to examine if it be evil or nor no more then if Trespas be brought against A. my servant by the name of B. and A. is taken in execution the Master shall not take benefit of this misnaming admitting that A. should punish the Sheriff for it also he vouched one Shotbolts case 10. and 11. Eliz. Dyer and 15. Eliz. Dyer 318. in the Earl of Kents case which prove that the Sheriff is to be excused for taking me by a false name and if the Iudges admit this false name yet this judicial writ ought not to be examined by the Sheriff and it was adjourned Shoftbey against Waller and Bromley SHoftbey brought an action upon the case against Waller and Bromley and declared that the Defendants conspired that the said Bromley should commence a suit against the Plantiff and that the Plantiff was then worth 5000. l. and that he was then dwelling in Middlesex and that the Defendants knowing thereof maliciously and falsely agreed that the said Bromley should lay his action in London and prosecute it until the Plantiff were outlawed in the said suit to the intent that his goods should be forfeited to the King and after in performance of the agreement aforesaid the Plantiff suggested that he was dwelling in London and laid his action here which was prosecuted until the Plantiff here was outlawed to his damage c. Tanfield chief Baron thought that if the suggestion was by Bromley to make the process into a wrong County it seemed that the Action should lie against him only but in regard it is shewed in the Declaration that the said suggestion was made by him in performance of the precedent agreement that the action lieth against both which the Court granted Godfrey in this action moved in arrest of judgement and that for two causes the action lieth not upon the matter here it appears by the 4. Eliz. Dyer 214. that a man may say his action wherein an outlawry lies in London and then by the Statute of 6. H. 8. cap. 4. proclamation shall issue into the Countie where he dwelleth therefore the suing of him in another Countie is no such act wherefore an action should be brought no more then if before the Statute of W. 2. cap. 12. a man had brought an appeal Maliciosè yet no remedy before the said Statute as appears in the 13. H. 7. in Kellawaies case because it was lawful to bring an appeal and so notwithstanding the said Statute no action did lie against him who brought an appeal if it abated 9. H. 5. cap. 1. also the Statute of the 18. H. 6. provideth remedy for false appeals or judgement in another Countie maliciosè c. by action of the case whereby it appeareth that in such case the Common Law allowed no action also the Statute of the 18. H. 6. provideth another remedy then that Statute and therefore no action lies against us no more then in the case aforesaid at the Common Law Secondly here is no issue joyned if the Defendants be guiltie of the execution of this practice but only if they be guiltie of the agreement and this is found for the Plantiff but clearly such agreement without execution giveth no cause of action and the word Practizatione comprehends only the going about and not the executing of this conspiracy and therefore the issue should have been general if the Defendants be guiltie or not and therefore he prayed judgement might be stayed and he cited Owen
Woods case in Cook lib. 4. Tanfield chief Baron it is true that the issue should be better if it were general not guiltie of the Trespass aforesaid but yet it is good enough in this case for the special words comprehend as much as the words not guiltie of the practice and agreement aforesaid c. and the word Practizatione comprehends aswel the subsequent Acts of execution as the precedent combination and therefore Tantamounts a general issue and it was good by the Court and as to the action Altham Baron conceived that it lieth although it be for a lawful cause for the Law abhoreth fraud and conspiracy as if two conspire to vex me for my land by suit an action lieth F. N. B. yet it is lawful for every man to sue me without title and he vouched 16. Assise and here it is laid that the Defendants indeavoured to make the Plantiff forfeit his goods which are worth 5000. l. and this is reasonable that it should lie and 9. E. 2. Fitz. discents 52. is our case directly upon the matter and therefore it seemeth to me that it lies Tanfield chief Baron said that 9. E. 2. crosseth this case in part and yet he thought that the action lies to which Snig agreed and it seemed the cases of appeal put by Godfrey did lie well enough without aid of the Statute of W. 2. if there be such a conspiracy Tanfield chief Baron accordingly if it be legally thought without cause yet if without conspiracy the action lieth not for it as it appears in Owen Woods case Cook lib. 4. and in all cases where strangers have nothing to do with the suit brought for the conspiracy and yet combine with the Plantiff in the suit an action upon the case lieth for this vexation and judgement was entred for the Plantiff by the Court. An inquisition for the King was returned here and it was found that Fleet-wood the Kings debtor for his office of receiver for the Court of Wards did purchase a certain Term and interest of and in the rectory of Yeading for divers years then to come and that being so possessed he became indebted to the King and that this term is now in the hands of the Lady Edmonds and by colour of this inquisition the land is extended for the Kings debt Harris Serjeant moved that this inquisition is insufficient to extend the land but good to sell a term and he vouched Palmers case Cook lib. 4. to which the Court inclined but it was adjourned If a Bishop becomes indebted to the King for a subsidie and dieth his successors shall not be charged upon the lands of the Bishoprick but the executors of the predecessor or his heir and if they have nothing the King shall lose it as chief Baron Tanfield said which the Court granted upon the motion of Bridgman for the Bishop of Saint Davids Trallops case A Scire facias issued against Trallop the father and Trallop the son to shew cause wherefore they did not pay to the King 1000. l. for the mean profits of certain lands holden by them from his Majesty for which land judgement was given for him in this Court and the mean rates was found by inquisition which returned that the said mean profits came to 1000. l. upon which inquisition this scire facias issued whereupon the Sheriff returned Trallop the father dead and Trallop the son now appeared and pleaded that he took profits but as a servant to his father and by his commandment and rendred an accompt to his father for the said profits and also the judgement for the said land was given against his father and him for default of sufficient pleading and not for the truth of the fact and he shewed the Statute of the 33 H. 8. cap. 39. which as he pretended aided him for his equitie whereupon the King demurred Hitchcock for Trallop seemed that the Statute did aid him by equity and he moved two things the one that if here be such a debt that the Statutes intends to aid it the other if the Defendant hath shewed sufficient matter of equitie within the intent of the Act and he thought that it is such a debt as the Statute will aid for although that here be au uncertainty of the time of the judgement given for the King that being reduced to a certainty by the inquisition after it shall be within the intent of the Statute for id certum est quod certum reddi potest and the words of the Statute are if any judgement be given for any debt or duty c. and here although that there was no certainty unto how much these mean rates extended at the time of the judgement given yet it is clear that it was a duty at the time of the judgement and then it is within the Statute also he said that the words in the proviso of that Statute explain that the intent of the makers of the Act was so for the words are for any thing for which the partie is chargable and the mean rates are a thing for which he is chargable see Cook lib. 7. fo 20. and the Lord Andersons case there fo 22. as to the point of equitie there seem to be two causes First he shewed that he was but a servant to his father and had given an accompt to him Secondly the judgement was given against him upon a point of mispleading Tanfield chief Baron said that the matter in equitie ought to be sufficiently proved and here is nothing but the allegation of the partie and the demurrer of Mr. Attorney for the King and if this be in Law an admittance of the allegation and so a sufficient proof within the Statute it is to be advised upon and for that point the case is but this a scire facias issueth out of this Court to have Execution of a recognizance which within this Act ought by pretence and allegation of the Defendant to be discharged for matter in equitie and the Defendant pleads his matter of equitie and the King supposing this not to be equity within this Statute demurreth in Law whether that demurrer be a sufficient proofe of the allegation within the Statute or not and it was adjourned Trin. 7. Jac. in the Exchequer Doillie and Joiliffs case again Trin. 7. Jac. in the Exchequer CRessey for the Plantiff said that the Plea in Bar is not good because the Defendant justified by force of a Capias ad satisfaciendum and pleads no return thereof and moved that it is not justifiable without returning of the writ but the Court seemed the plea to be good notwithstanding that but if it were a mean process then it ought to be pleaded to be returned see Cook lib. 5. Hoes case fol. 19. according to this diversitie Tanfield chief Baron thought that the Plantiff shall recover for first the writ of error here is not a writ but a commission and therefore false lattin shall not abate it as it hath been
purpose as to the avoiding of the Benefice but his want of privitie availeth to excuse him of being Simoniacus yet because he is Simoniace Promotus the presentation is void and the King shall have it by the expresse words of the Statute and therefore as it seems if in this Statute there had been an expresse saving of the interest of the Incumbent by reason of his innocency yet such a saving of Interest had been void and repugnant in respect that it was expresly given to the King before as it is in Nichols case in Plowden upon the Stat. of 1. H. 7. See 1. Mar. Dyer and 7. Eliz. Dyer 231. such a saving doubted if it be void and in Cook lib. 1. Altonwoods case a saving Repugnant to the expresse words of the Premisses is void and so in our Case the Presentation is given to the King expressely and therefore if there were a saving in the words subsequent this were void much more in our Case where there is no saving And to prove that by the Symonie in the Patron that the Patron shall be prejudiced he vouched 42. E. 3. fo 2. It goods be given to B. by A. this is by fraud in A. to the intent that he may defraud another although B. is not knowing of this friend yet the gift is void as to him 34. E. 1. Title Garranty accordingly and Burrells case Cook lib. 6. upon the Statute of 27 Eliz cap. 4. to the same purpose To the second matter it seems that by the Queens death her Presentation is determined cleerely and so in case of a common person for if an Admission c. should follow after the death of the Presentor this is without any Authority of the instrument of Presentation for although there were no Admission there is no Presentation and he said that the Presentation passeth no interest but is as a Commendation and therefore he compared it to the Case of Say and Fuller in Plowden Com. If a Lease be made for so many years as a stranger shall name there ought to be certainty of years appointed in the life of the parties or otherwise it will be void and in 38. E. 3.3 If a Bishop present and die before c. Now the King shall present anew and also there it appears that the King may present by Paroll well enough and so it is said in 34. E. 3.8 tit Quare impedit 11. That a Presentment made by the Bishop becometh null and void by his death and therefore it appeareth in Fitzh Office of Court 29. that licence to alien granted to the King is void by the Kings death there needeth no actual Repeal or recital of the new presentation yet I agree that the King may make an actual repeal if he will as it appears by divers cases which have been cited before but that is of necessity to be done and as it seems the words of the Statute 6. H. 8. prove that before this Statute a second Grant made the first void without actual repeal in case where the thing passed by the Grant and by 38. E. 3. fo 3.4 it appears that a second Presentation made by the King was good without a repeal of the first and by Gascoigne 7. H. 4.32 if the King make a Presentation to one and then presents another without recitall or repeal of the first yet the Bishop ought to receive the latter Presentee for it is good without actual repeal wherefore judgement ought to be given for the Plaintiff Snig Baron said that as the Action is brought judgement ought to be given for the Plaintiff but if the Plaintiff had brought a Quare impedit peradventure I should have been of another opinion And as to the point of Symonie by the Civill Law it was punishable by deprivation and the guilt of the Patron should prejudice the Parson as to matter of Commodity in the Parsonage and at the Common Law if the Parson will pleade such Presentment he should be prejudiced as appears by our Books and hereby the incumbency the words of the Statute will not be satisfied for then the Queen should not Present if an usurper present and the Presentee is in by six moneths this gives Title of Presentation to the King against the rightfull Patron also it seemeth That if I. S. hath an Advowson and A. purchase the next avoidance to the intent to present B. and the Church becomes void and A. presents B. this is Symonie by averment as by good pleading the Presentation of B. shall be adjudged void To the second Point in respect that the Plaintiff had the possession by induction it is no question but he may retaine a possessorie Action for the Titles But if it were in a Quare impedit it would be materiall whether a Repeal should be in the case or not according to the Presidents in the Booke of Entries fo 303 304 305. for if a Licence be Granted to purchase in Mortmaine this may well be executed after the death of the Queene as it appeareth by Fitzherberts natura brevium expresly and so in Dyer a license of Transportation doth not cease by the Kings death 7. H. 4. in the Countess of Kents case it appears when the King makes a grant which is void yet there shall be no new grant without an actual repeal but it seems we are out of the intent of the Statute of 6. H. 8. because the words during his pleasure are not in the grant or Patent and so upon the whole matter judgement shall be given for the Plantiffe Tanfield accordingly the case is that the Defendant had prioritie of the possession of the Corn for which the action is brought and yet it seems judgement ought to be given for the Plantiffe and first as this case is here is Simonie by the Civil Law and the partie had his benefice by Simonie although he be not conusant thereof Secondly admit that here was not Simonie by the intendment of the Civil Law yet the Statute hath made an avoidance of the benifice in this case although it be not Simonie for the Statute speaks not one word of Simonie throughout the Act and yet by express words it doth avoid such presentations as this is and as to the Civil Law such benefice is to be made void by sentence declaratorie but it is not void ipso facto as it seems in the case where a common person was consenting to the Simonie but the text of the Civil Law sayes expresly that the Church ought not to be filled Corruptivè or by corruption and the Civil Law expresseth such a person as is in our case by Simoniace promotus and calls him who is particeps criminis Simoniacus and he who is Simoniacus is by the Civil Law deprived not only of the benefice ipso facto but also is deprived to be a Minister and adjudged guiltie in Culpa et poena Petrus Benefieldus a late writer of good authoritie saith that if a friend
by seisure of two parts of the land c. then when a Statute gives a new thing which was not at the Common Law and limits a course and means whereby it shall be levied that course ought to be pursued and it cannot be done in any other manner the Statute of 8. H. 6. cap. 12. makes the imbesting of a Record Felony and that this shall be inquired by Iury whereof one halfe shall be Clarks of some of the same Courts and that the Iudges of the one Bench or of the other shall hear and determine it and the case was that part of the offence was done in Middlesex and part in London so that the offence could not have such proceeding as the Statute appointed and therefore it was holden that it should not be punished at all Mich. 41. et 42. Eliz. Betwixt Aggard and Standish the Statute of 8. Ed. 4. cap. 2. inflicts a penaltie upon him that makes a retainer by parol and moreover it is thereby ordained that before the King in his Bench before the Iustices of the Common Pleas Iustices of the Peace Dyer and Terminer every man that will may complain against such person or persons doing against the form of this ordinance shall be admitted to give information for the King and it was holden that the informer could not sue for himself and the Queen upon this Statute for an offence done in any Court not mentioned in that Statute the Statute of 35 Eliz. cap. 1. appoints that for the better and spedier levying and Recovering for and by the Queens Majestie of all and singular the pains duties forfeitures and payments which at any time hereafter shall grow due or be payable by vertue of this Act and of the Act made in the 23 d. year of her Majesties Raign concerning Recusants that all and every the said pains duties c. may be recovered to her use by Action of debt Bill plaint or information or otherwise in any of her Courts of her Benth Common Pleas or Exchequer in such sort in all respects as by the ordinary course of the Common Lawes of this Realm any other debt due by any such person in any other case should or may be recovered wherein no essoin c. Note that this Statute extends not to any penaltie upon the Statute of 28. Eliz. cap. 6. also the Common Law doth not give any means to levie a debt upon a trust and as to the general point it seems that no land can be seised after the death of the Recusant 23. Eliz. cap. 1. enacteth that every person of the age of 16. years which shall not repaire to some Church c. but forbear the same contrary to the Tenor of the Statute made in the first year of her raign for uniformity of common prayer and being thereof lawfully convicted shall forfeit to the Queen for every moneth which he or she shall so forbear 20. l. And that statute doth give no forfeiture at all for Lands And also it giveth no penaltie without conviction so that the death of the party before conviction dischargeth all and so without question it was at that day This last Point seems to be remedied in part by the Statute of 28. Eliz. cap. 6. for thereby if the party be once convicted he shall alwaies pay after without other conviction and this Statute gives also a Seisure but before any seisure Three things ought to concur 1. Recusancy 2. Conviction 3. Default of payment And the last of these was the tâ—ue cause of the seisure viz. That is the contempt of not payment Therefore it was adjudged in Sir William Greenes case that this seisure shall not go in satisfaction of such debt but the King shall hold it as a penalty for the contempt untill the debt be paid so that when a Statute imposeth a penaltie for a contempt as the contempt is personall so is the penalty And therefore the death of the party before that it be excuted or turned in rem judicatam dischargeth all and I shall prove it by the different plea in an Action upon a penall Statute and other common Actions and therefore in debt not guilty is no plea but in debt upon a penall Law it is a good Plea for in truth untill it be adjudged it is no debt but a contempt Michaelmas 41 42. Eliz. betwixt Car and Jones and in debt upon the Statute of 2. Ed. 6. not guilty was adjudged a good plea Trin. 42. Eli between Morley Edwards 2. It may be proved by the different forms of judgment for in common actions the judgment is Quod quaerens recuperet c. But in informations the usuall form is Quod defendens foris faciet 41. Ass which implies that it is not perfect untill the Iudgement and before it is only a contempt and if so then by the death of the party it is discharged Thirdly I shall prove it by Authority that the death of the parties before Iudgement dischargeth aswell the contempt as the penaltie of a penall Law 40. Ed 3. Executor 74. debt lies not against the Executors of a Iaylor who suffers Prisoners to escape 15. Eliz. Dyer 322. in the like Case the opinion of the Court was that an Action did not lye against the Executors of the Warden of the Fleet. but there ought to have been a Iudgement against him in his life time for the Offence is but a Trespass by negligence which dies with the Person 18. Eliz. Dyer An Action brought against the Heire and ruled that it doth not lie for it is a Maxime that no Law or Statute chargeth the Heir for the wrong or trespasse of his Father Also it is to be observed in the Principall Case that the Statute limits the seisure to be by Proces out of the Exchequer so no seisure can be without Proces as it may be upon some other Statute But a judiciall course is hereby prescribed whereupon the Partie may plead with the King for his Land and therefore if that course be not pursued in the life of the party it is too late to pursue it after his death Also the words are that he shall seise all the goods and two parts of the Lands of such Offendors But after his death the goods are not his but his Executors and the Lands are not his but his Heirs and a seisure by way of penalty relateth no higher then to the time of the seisure also the words of the subsequent Proviso explame it further for it it be demanded when the King shall seise two parts it is answered at the same time when he leaveth the third part and when must be leave the third part it is auswered in the life of the Recusant That it may be for the maintenance of his Wife Children and Family and after his death he hath neither Wife Children nor Family for in a Writ of Dower the Demandant shall say that she was Wife and not that she is Wife As to the
the profit and comoditie of his Master the Plantiff and it is shewed that he intended to deceive his Master and the Queen also and where a wrong is made to another in my name whereby I am damnified there I shall have an Action and if in this case the Defendant had left the goods in the ship then the Plantiff had suffered no loss and therefore his taking them out of the ship is the cause which occasions the loss to the Plantiff and therefore it is reasonable that he should render us damages and he vouched the writ of deceipt in F. N. B. and divers cases therein put and 21. E. 4. that if a man bring an Action in London and the Defendant to delay my Action brings a writ of priviledge be shall have an Action upon the case and he vouched the like case to be adjudged in the Kings Bench 40. Eliz. between Byron and Sleith upon an Action of the case brought by the Defendant because he sued a scire facias against a Bail in a Court where he ought Bromley Puisne Baron said that the Plantiff shall have judgement First it shall be intended that the Plantiff was beyond the Seas at the time in respect of the Minute of time between his departure and the landing of the goods Secondly he said that it needs not be expressed that the Master had left moneys wherewith to discharge the custome for it shall be intended in this case because the Defendant had taken upon him to meddle according to the appointment of the Plantiff wherefore c. and so he departed to the Parliament Altham second Baron agreed that the Statute for the paying of custome appointeth that if the goods of any man be laid upon the land the custome not paid that then the goods shall be forfeited and therefore here he shall not lose his goods by reason of this Act made by the Defendant so that if the Defendant be a meer stranger to the Plantiff without question an Action of Trespass lies for this taking then in the principal case by reason of this trust an action of the case lies and if a stranger drives my Cattle upon your land whereby they are distrained by you I shall recover against the stranger for this distress by you in an action against him for by reason of this wrongful Act done by him I suffer this loss and he vouched 9. E. 4. fo 4. a case put by Jenney Snig third Baron to the contrary I agree that if a stranger put in my Cattle to the intent to do hurt to me a Trespass lieth but here is an Action upon the case and that lies not because it appears not sufficiently that the Defendant was servant to the Plantiff to Merchandise but generally his servant and therefore an Action of Trespas rather lieth generally for in an Action upon the case he ought to hit the bird in the eye and here it is not shewed that the goods were for the same voyage nor that the Defendant is a Common servant in this imployment also the Declaration is not good because he doth not shew that the Defendant had moneys or means from the Master to pay the custome and he is not compellable to lay out money of his own besides he cannot dispose of the goods until the custome be paid wherefore c. Tanfield chief Baron there are two matters to be considered in the case First if here you charge the Defendant as your special servant or if as a stranger Secondly if as a stranger then if an Action upon the case or a general Action of Trespass lieth and as to the first if in this case you have shewed him to be such a servant as a Bayliff or Steward and he hath misbehaved himself in such a thing which belongs to his charge without any special trust an Action upon the case lieth but if he be taken to be your general servant then he is to do and execute all Acts and lawful commands and against this general servant if his Master command him to do such a thing and he doth it not an action upon the case lieth but yet this is with this diversitie viz. if the Master command him to do such a thing which is in his convenient power or otherwise not and therefore if I command my servant to pay 100. l. at York and give him not money to hire a horse an Action lieth not for the not doing of this command but if I furnish him with ability to do it and then he doth it not an action lieth well against him and in the principal case it is shewed that the Plantiff appointed the Defendant being his servant generally to receive c. and to pay all customes c. then it is examinable if the Plantiff sufficiently inabled this Defendant to do this command and the woâ—ds of the command seem to be all one as if he had commanded the Defendant to receive the Wares paying the custome and therefore the Defendant needs not to receive them if he had not money to pay for the custome and so it is not within the Plantiffs command to receive the Wares and then if he doth receive them not paying for the customes this is another thing then the command anâ— therefore it is no misfeazance as my particular servant but being my general servant he had done another thing then I commanded him whereby I receive some damage and by consequence is in case of a stranger for if my general servant who is not my horse keeper take my horse out of my pasture and ride him this is a thing which he doth not as a servant but as a stranger then as to the second matter the Defendant being as a stranger if an action upon the case or a general action of Trespass lieth for this is as if my general servant take my horse and rides him without my appointment a general action of Trespass lieth but if by reason of his riding my horse die an action upon the case lieth and so it is in the case here the Defendant had laid the goods upon the land by reason whereof they were forfeited it is collourable that an Action upon the case lieth but if a man take my goods and lay them upon the land of A. a Trespass or an Action upon the case lieth against him who took them by the better opinion but it is good to be advised and it was adjourned and at another day Altham Baron said that an Action upon the case or a Trespass generally did lie well enough and he vouched F. N. B. that if a Bailiff arrest one without any warrant I shall have Trespass generally or an Action upon the case at my election and so in the like case 18. E. 4 fo 23. Trespass or Action upon the case lies also by F. N. B. if Executors be outed by the Testators Lessor there they may have an Action upon the case if they will or Trespass generally and in
Slade and Morleys case a case was put which proves it to be according Snig Baron agreed that Iudgement ought to be given for the Plantiff and by Tanfield if I take your goods and detain them until I have caused you to pay me 10. l. a general Action of Trespass lieth and not an Action upon the case and it is cited 7. H. 4. or 7. E. 4. to be accordingly but yet he agreed that judgement should be entred and so it was appointed to be done but then Chibborn for the Defendant said that here is a mistrial for if this trust be not material because it is not effectually shewed in the Declaration as you have argued then the Venue shall come only from the parish where the Wares were laid upon the land and not from the parish also where the appointment or trust was made by the Plantiff and therefore the trial also being from both parishes is a mistrial and the Court agreed that this is a mistrial upon that reason for now the appointment or Trust is but an inducement and therefore needs not to be shewed within what parish it was made and therefore a new Venire facias was granted and upon that a new trial and damages more then before and judgement was given accordingly Arden against Darcie NOta a good case of Attornament which was decreed in the time of Baron Manwood betwixt Arden and Darcie and it was this one Arden was seised in fee of divers lands in the County of c. and made a lease for years and after made a feofment with words of Grant of those lands to A. and B. to the use of the feoffor and his wife for their lives the remainder to Arden his son in tail and after the feoffor said to the Lessee that he had conveyed his land which the Lessee held in lease to the uses aforesaid and the Lessee said I like it well and after he paid his rent to the feoffor generally and it was decreed in the Exchequer Chamber that this is no Attornament because the Attornament ought to be to the feoffees and it appeareth not that the Lessee had notice of the names of the feoffees and therefore it cannot be said to amount to an Attornament but notwithstanding that Decree Arden the same to whom the remainder was limited had his Action depending in the Kings Bench to trie the point again as he said to me also this Term a point concerning the said Decree was in question upon another Bill exhibited in the Exchequer Chamber by Sir Edward Darcie against Arden and the case was as followeth Sir Edward Darcie exhibited his Bill here in the nature of a scire facias against Arden to shew cause wherefore the said Edward Darcie should not have execution of a Decree made in the time of Baron Manwood and the Defendant shewed that Darcie in his first suit supposed by his Bill that he had a grant of the land then and now in question from Queen Elizabeth rendring rent as it appears by the letters Patents and in facto there was no rent reserved upon the Patent and that the Defendant gave answer to the said Bill and admitted the Iurisdiction of the Court and after a Decree was made against the Defendant and the Defendant now having shewed this special matter demurred upon this Bill in respect that by his pretence the Court had not jurisdiction to hold plea in the first suit and here it was shewed that the first decree was made upon a matter in Law not properly examinable by English Bill and that in facto the Law was therein mistaken and therefore the Defendant prayed that the decree may be re-examined Tanfield chief Baron it is usual in the office of Pleas that if an action be brought as a debtor of our Lord the King this is good although that de facto no suggestion be made thereof if it be not shewed on the other side and therefore a writ of Error for this falsity shall not cause the judgement to be reversed as it was resolved in a case in which I was of Councel and so here as it seemeth Altham Baron here we are in equity wherein we are not tied to so strickt a course as if it were in the office of pleas Brock of the Inner Temple for the Defendant in a Court of equity it is in the discretion of the Court to deny Execution of a decree if good cause be shewed and in 18. E. 4. fo 1. judgement was given against a married wife by the name of a feme sole and reversed although she did not shew in the first suit that she was married and in 8. E. 4. judgement was given in the Kings Bench in a suit and by writ of error was reversed although the Defendant had admitted the Iurisdiction of the Court and the chief Baron and all the Court inclined that Arden may exhibit a Bill to reverse this Decree made against him and may shew what point in Law the Iudges mistook in the Decree or otherwise we should not do as Law and Iustice requireth for it is not expedient to be examined by way of Bar to this Bill in the nature of a scire facias and after Arden according to the Decree of the Court and their direction did exhibit his Bill in the nature of a writ of error Comprising how the first decree was erroneously made and prayed that the said decree might be reversed and in his Bill he shewed the point in Law which was decreed and that upon divers long conveyances appears to be thus and so it was agreed by Councel on both parties that Arden the father was seised of the Mannor of Cudworth in the County of c. and was also seised of the Mannor of Parkhal in the same County and of Blackclose c. which was parcel of the Mannor of Cudworth but lying neer unto Parkhal and alwayes used and occupied with it and reputed parcel thereof but in truth it was parcel of Cudworth and that Arden the father made a Conveyance of the Mannor of Parkhal and of all the lands thereunto belonging and reputed as parcel thereof or occupied with it as part or parcel thereof and of all other his lands in England except the Mannor of Cudworth to the use of Arden his son that now is Plantiffe here and if Blackclose will pass to the son by this conveyance or if by intendment it shall be excepted by the exception made it was the question here and was decreed in the time of Baron Manwood that it is excepted by the exception but all the Barons now thought it to be a strong case that Blackclose is not excepted by the exception of the Mannor of Cudworth and so the first decree was upon a mistake out of the Law and Tanfield chief Baron said that the point is no other but that I infeoffe you of Blackacre parcel of the Mannor of D. exceyt my Mannor of D. this doth not except the King
be construed to be conditionall because the consideration intended is executed viz. that he hath assumed c. Dyer 76. and 44. Eliz. in the Kings Bench Sir William Lees case in consideration that he had assumed to make a release another promised to pay him 10 l. an action may be brought for the 10 l. without averment of making the release because the consideration is a thing executed viz. the Assumpsit c. but if Executory then the Grant is conditionall as 9. E. 4.19 15. E. 4.9 If an Annuity be granted pro concilio impendendo this makes the Grant conditionall and void for not giving counsell but otherwise it is if it be pro consilio impenso 4. But admitting that here it was conditionall yet the Queen cannot avoid it without Office and so the Plaintiff had no title to enter for an avoidance which was before his grant and so the lease is in esse at the time of the Grant made to the Plaintiff your Grant is without recitall thereof and therefore is void see Knights case Coo. lib. 5. If there be a condition to re-enter for non-payment an Office ought to be found but if it be upon condition to cease for non-payment then it is void to the King without Office as it was agreed in this Court in Sir Moyle Finches case and he vouched Cook lib. 1. Altonwoods case to prove that the lease ought to be recited in the Grant of the reversion or future interest and here although there be a non abstante in your Patent this doth not aid you because it is not found in the speciall Verdict Also for another cause the Plaintif shall not have judgement here for it is not found that the Queen died seised neither that it came to the King that now is and so it cannot come to the Plaintiff and although a fee-simple shall be intended to continue in the same person yet without shewing it shall not be intended to come to the heir 7. H. 7. 3. and so he prayed judgement for the Defendant Tanfield chief Baron said that the case here is by Verdict therefore we ought to intend such circumstances if they be not expressed to the contrary also the seisin of the Queen is shewed to be in Jure Coronae and therefore the intendment that it may be devised by disseisin or abatement between common persons holdeth not here Carew against Braughton Mich. 7. Jacobi in the Exchequer THomas Carew Exequetor of William Carew brought debt against Morgan Broughton Sherif of the County of Cardigan and the case was that John Wyner was in execution upon a Iudgement for William Carew and that after William Carew dyed and that John Wyner brought an Audita querela against Carew Executor of William Carew and upon that Writ he had a venire facias against Thomas Carew and thereupon as the Stat. apoints of 11. H. 6. cap. 10. he put in baile by recogni-zance in the Chancery to the said Thomas Carew and one of the parties for his baile was Thomas Wyner and after upon the Audita Quaerela Iudgment was given against the said Wyner and a Scire facias awarded issued against Thomas Wyner as Bail and after the said Thomas Winer was in execution upon this Recognizance as Bail to the said Thomas Carew and the said Morgan Broughton being Sheriff suffered him to escape upon which escape Thomas Carew brought debt against the Sherif in the debet and detinet and had a verdict to recover and now in arrest of judgement it was moved by Jefferies that the action ought to be brought in the detinet only and he said that if an Action be brought as Executor this alwaies ought to be in the detinet only and he vouched Hitchcock and Browns case remembred at the end of Hargraves case lib. 5. where the case was that one Anthony Brown Executor brought debt against one Lister and that Lister being in execution the wife entermarried the said Lister escaped the Husband and Wife brought debt for his escape in the debet and detinet and there it was resolved that it ought to be in the detinet only and so here and see the custome to plead mentions that the Recognizance acknowledged was to the use of the Executor and not to the use of Thomas Carew by his name but Wild of the Inner Temple prayed judgement and said that the Action is well brought in the debet and detinet and he vouched 9. H. 6. and 20. H. 6. if an Executor recover and after upon the Iudgement he brings debt it ought to be in the detinet but if an Executor sels goods of the Testator and takes an Obligation in his name as Executor yet here the Action upon this Obligation ought to be in the debet and detinet because it is upon his own contract and 1. E. 3. Brooke Executor pla 287. although it appears there and so by 9. H. 6. fo 11. That is good either way and 41. E. 3. Brook pla 545. that if a debt be brought against the Executor upon a contract made by them it ought to be in the debet and detinet or otherwise the Writ shall abate and as 9. H. 6. is at his pleasure to name him Executor or not and therefore c. Snig the second Baron if the Executors bring an Action of goods carried away in the life of the Testator c. and hath judgement to recover 20 l. and dammages for them and upon this judgement he brings debt this shall be in the detinet Altham 3. Baron if an Executor sells the goods of the Testator and an Obligation is made to him for the money for which they were sold without doubt this action shall be in the debet and detinet for the action concerns him in his person and so if he with his own money redeem goods which was pawned by the Testator c. and the Stat. of the 11. H. 6. cap. 10. is that upon an Audita Querela the party who sueth it shall put in Bond to the party c. and the Testator is not party at the time of this Audita Querela but Thomas Crew who is the Executor and it is not as a Proces of execution pursuant c. but is a new thing and so for his opinion suddenly it is good in the debet and detinet Bromley the 4. Baron seemed cleer that if a Bond be made to an Executor upon a simple Contract made with him for the goods of Testator there the action ought to be brought in the debet and detinet but this account is conceived upon a dependency of a duty to the Testator and therefore it ought to be detinet only Tanfield chief Baron the case is doubtfull and therefore it is good to be advised but for this time it seemeth there is a diversity where the Recognizance is Legally forced and where it is voluntary for in our case the Law compels this Recognizance upon the suite which the
Executor prosecureth as Executor c. and for the Testator and there it ought to have a resemblance of the Regionall debt and although that the Statute appoints that the sayl shall be to the party as Altham Baron remembred yet here as the pleading purports the Bayl is to the aforesaid Executor which implies a legall dependency upon the first suit Then it hath been granted and the Law is so that if an Executor recover a debt which was due to the Testator and hath judgement for it now if you will have an action upon this judgement this ought to be in the detinet because it is a legall pursuance of a thing given to the Testator and not voluntary as a bond for further security or assurance and so here the Bayl being pursuant and compulsory but by 5. E. 3. if it be voluntary then it ought to be put in the Kings Bench to an Executor which is to be resembled to our case if an Executor bring debt upon a Bayl it ought to be as Executor and not as I. S. cleerely Altham the Bayl in the Kings Bench is upon the originall suit and so it is not here wherefore c. to which it was not answered but for that matter it was adjourned see H. 6. in the Kings Bench if a Feme c. take Husband and one of the Debtors of the Testator promise the husband if he will forbear his suite to pay the debt if the Husband will commence his action upon this promise it ought to be in the name of his Wife also because the action pursueth the Originall debt Williams contr it was agreed that if the Law were such that the Action ought to be in the detinet only then the bringing of it in the debet and detinet is such a Ieofaile as is not aided by the Statute of 18. Eliz. Nichols case and Chamberlains case Cook lib. 5. Tanfield chief Baron said in this case that it is proper that the Action ought to be brought in the detinet only but as our case is here is no issue joyned because here is not a negative and an affirmative for the declaration is that he oweth and detaineth and the Bar whereupon the issue is joyned is that he oweth not so where if his Action ought to be in the detinet then there is not any Nâ—gative and so no issue which was not denyed at another day they agreed that the action ought to have bin in the detinet only and therefore judgement was given that the Plaintif take nothing by his bill Sir Henry Browns case touching the Countesse of Pembrook SIR Henry Browns case wherein Hawkins and Moore were parties was this the Plaintif declared of an ejectment of the Mannor of Kiddington Dâ—le Sale and doth not mention them to be adjacent to any Ville and also of an 100. Acres of Land lying in the same Ville of S. and that upon not guilty pleaded the Iury at the Assises at Oxon were ready and then the Defendant pleaded that the Plaintif after the last continuance had entred into a Close called Well Close parcell of the Tenements mentioned with conclusion and this in the Declaration he is ready to aver and demanded judgement if it c. and this was before Yelveton Iudge of Nisi Prius there and now the Plea here was debated And 1. in this case it was upon conference with all the Iudges allowed that this plea may be pleaded at the Assises well enough and the Iudge there accepting of it had done well but as Tanfield chief Baron said the Iudges may allow it or not for if they perceive that it is Dilatory they may refuse it for it is in their discretion and therefore c. But by Dodderidge the Kings Serjeant the Iudge of Nisi prius is not Iudge thereof if it be well pleaded or not but is to give day to the Parties in Court where the Suit depends to maintain this Plea for he is only appointed Iudge to take the issué and upon such Plea he ought to discharge the Iury of the matter in issue and record the Plea and this is all his duty and by him in this case here is a Discontinuance for the parties have no day given upon the Roll as it ought to be for the day in bank in judgement of Law is all one with the day of Nisi prius and this is of course given to the Parties to hear Iudgement only concerning the matter in issue and here is other matter and therefore the Iudge c. Nota that in all Cases where a thing is pleaded triable before other Iudges the Iudge before whom it depents ought to give day to the Parties to be before the Iudges where the matter is tryable 12. E. 3. Voucher 115. and Title Day 25. and 34. and Assise pla 14. a Lord demands Cognizance of Pleas day ought to be given to the Franchises or otherwise it is a discontinuance of the Nisi prius for there ought to be a speciall day for the parties here to hear judgment in this Plea 10. H. 7. fo 26. so if at the Nisi prius a protection be cast the Iudges shall give day to the Parties in Bank to hear judgment if this protection shalve allowed or not for the Iudg of Nisi prius is no Iudg therof Also the Iudg in this case ought to have discharged the Iury it appears not here that he had done so therefore upon the whole matter it is a discontinuance but admitting that here was no discontinuance it seemeth that the plea was good and I agree that in all cases of Pleas issuable the plea ought to be expresly shewed or that which Tantamounts and here is shewed that which Tantamounts for when the Plantiffe in his Action had shewed the names of the Mannors and the Towns in which the acres lies then the Venue to try it for every parcel shall come de vicineto from all together and by consequence it is reasonable that the Venue for the trial of one particular to be parcel or not parcel shall come from all for if the plea in this case were that the Plantiff hath entred into the premises this had been good and then if it be good for the general it seemeth it should be good for every particular also it is clear that two may be parcel of all the three Mannors as in this case it is admitted to be parcel of all the premises by the demurrer if so c. Coventry the plea here is not good for the plea is to the writ and the conclusion ought to be pursuant to the premises of the plea or otherwise the plea is not good 36. H. 6. if a man plead to the writ and conclude to the Action it is evil 20. Eliz. Dyer 361. also the plea is not good because it is not shewed where the land lies wherein the entrie is alledged and therefore if the Plantiffe had denied it then is there no
was in a Formedon in remainder and it was moved now by Serjeant Harris if the partie against whom it was given may sue in the Exchequer Chamber by Bill or petition to the King in the nature of a writ of false judgement for the Reversal of that judgement Tanfield seemed that it is proper so to do for by 13. Rich. 2. if a false judgement be given in a base Court the partie grieved ought first to sue to the Lord of the Mannor by petition to reverse this judgement and here the King being Lord of the Mannor it is very proper to sue here in the Exchequer Chamber by petition for in regard that it concerneth the Kings Mannor the suit ought not to be in the Chancery as in case a Common person were Lord and for that very cause it was dismissed out of the Chancery as Serjeant Harris said and Tanfield said that he was of Councel in Pettishals case in the time of the Lord Bromley where it was debated at large if such a judgement ought to be reversed by petition in the Chancery in case where a Common person was Lord and at last it was decreed that it should be as in that case of Patshal and for the same reason here the King being Lord and therefore day was given till the next Term to shew their errours and Serjeant Harris said that the errors are in effect no others then were in the case 9. Eliz. Dyer fo 262. and in Godmanchesters case and it was adjourned Scot and his wife against Hilliar SCot and his wife Plantiffs against Hilliar for these words spoken of the wife viz. she would have cut her husbands throat and did attempt to do it Hutton Serjeant in arrest of judgement said that these words are not actionable for the will or attempt is not punishable by our Lawe and he vouched Cockains case Cook lib. 4. cited in Eaten and Allens case but by the Court an Action lies for the attempt is a cause for which the husband may be divorced if it were true and it is a very great slander and Baron Snig said that in the same Term a judgement was given in the Kings Bench and was affirmed in the Exchequer Chamber upon a writ of error for these words He lay in the high way to rob me and therefore let judgement be entred for the Plan̄tiffe but it was adjudged in the principal case that for the words she would have cut her husbands throat no Action would lie Gooches Case A Coppyholder surrenders into the hands of the Customary Tenants to the use of Anne his Wife and after before any Court the said Coppyholder surrenders the Land into the hands of other Customary Tenants to the use of the said Anne for her life the remainder to Percie in Fee upon condition that he in remainder his Heirs should pay 20. s. per annum at Michaelmas for ever the first payment to commence immediacely after the death of the said Anne viz. at the next feast of St. Michael and this to be paid in the Church Porch or D. to the Church Wardens of D. in the presence of four discreet Parishioners or otherwise that a stranger should re-enter and at the next Court both these surrenders were present and the Steward admitted the said A. according to the second surrender and she dyed and now upon pretence that the rent of 20. s. was not paid by the Heirs of him in remainder the Heir of Gooch who made the surrender had entred and thereupon an Action was brought and upon the evidence the Jury to the County of Bedford now at the Bar These matters were moved by Serjeant Nichols That a surrender into the hands of Customary Tenants cannot be Countermanded and therefore the second surrender void and the admittance shall work to such uses as the first surrender was made as in Anne Westwicks Case Cook Lib. 4. And to prove that a surrender into the hands of Customary Tenants is not countermandable he said that it is not countermandable by death nor surrender Cooke lib. 4. in his Coppyhold Cases That a presentment in the Court may be after the death of the surrenderer and the admittance thereupon is good and he compared it to the Case of the delivery of a Deed as an Escroll which may be delivered as his Deed after the death of the Maker as it is in Jennings and Braggs case Cook lib. 3. which was not denyed by the Court Serjeant Dodderidge said that when a surrender is made upon condition that he shall pay a summe of money to a stranger these words make an estate conditionall and give power implyedly to the Heirs of the party who did surrender to re-enter for non-payment and the words which give power to a stranger to re-enter are meerely void neverthelesse the precedent words shall stand and make the estate conditionall Tanfield Littleton saies that such a re-entry is void for a re-entry cannot be limited to a Stranger Nichols Serjeant said that if a surrender be made that he shall pay so much money that this makes the estate conditionall and gives a re-entry to the Heirs of him who did surrender But when it goes further and doth not leave the condition to be carried by the Law in such case all the words should be void because it cannot be according to the intent as in the case of a reservation of rent the Law will carry it to the Reversion but if it be particularly reserved then it will go according to the reservation or otherwise will be void and so here Tanfield Admit that here was a conditionall estate by vertue of the Surrender last made and this condition is also to be performed to a stranger which generally ought to be taken strictly yet as it is here he who will take advantage thereof ought to prove a voluntary neglect in the party in the not performance of the Condition and inasmuch as there is no certain time appointed when the payment of this Annuall rent should be made but generally at Michaelmas next after the death of the said Anne thereby in this case the Chuch-wardens ought to notifie the death of the said Anne before the first day of payment by reasonable space or otherwise the condition is not broken and also it is appointed here to be paid in the presence of four discreet Parishioners by the party who should perform the condition yet by intendment he hath no notice who are discreet or who are not especially he being an Infant as in our case he is and therefore although the condition is to be performed to a stranger which generally ought to be performed strictly according to 12. E. 3. Yet this is to be intended only in such cases where the party had certain notice of all circumstances requisite for payment thereof and therefore he directed the Iury that for want of knowledge of such circumstances they should give a Verdict that the condition was not broken And Dodderidge
and Hall the Dean and Canons of Windsor 22. E. 4. were incorporated by the name of Dean and Canons of the Kings free Chappel of St. George the Martyr within his Castle of Windsor adjudged the variance of the Kings and Queens free Chappel was material although the lease was made in the time of Philip and Marie And he vouched also 44. E. 3. fo 3. and 38. E. 3. fo 28. and he said that it seemed to him that this presentation by another name had gained an usurpation by the Provost in his natural capacitie also it seemeth that notwithstanding it is not found that Doctor Airie was presented instituted and inducced yet the special verdict is good enough to have judgement of his part but he agreed that if the truth of the Case had been discovered by the pleading then it ought to be precisely shewed that such exact finding is not necessary in a special verdict as in pleading and he vouched Allens Case 33. Eliz. Banco Regis where the Iury found that Tenant for life made a lease for years and found not the lessor living nor dead and yet in this Case he was intended living and he cited also Haydons Case Cook lib. 3. and Hunts Case 5. Ma. Dyer 153. and he voucht the Case of West against Munson in a writ of error in the Kings Bench wherein the first action being an Assise in the Common Pleas it was alledged for error that the Iury did not finde the Plantiff was disseised but only the Defendant disseised him and yet the judgement was affirmed Dodderidge the Kings Serjeant for the Defendant he agreed that the name of a Corporation is essential to be alwayes used in their grants for thereby they are distinguished from other Corporations but he conceived that in this Case here is a sufficient supplying of that part of the name which is omitted and he said that although the special verdict in one place mentions the name of Queens Colledge yet when they nominate the Corporation it cals them the Provost and Scholers of the Hall omitting the words Queens Colledge and then they finde that the Provost and Scholers by the name of c. and he said that in so much the Iury found precisely that the same Corporation made the demise it is not material by what name they made it and therefore he said that if a Iury finde that I. S. had made a feofment by the name of R. S. this is good enough as it was holden in Shotbolts Case 10. 11. Eliz. and so in 13. E. 2. fitz tit Bastardy pl. 25. a Iury found that two daughters were heirs and that the Defendant was born in espousals a non suit and so 20. Eliz Dyer 361. the Iury found that Executors received rents incident to the reversion and so assets in their hands and he cited also Dyer 372. to the second matter he thought that the omitting of the name precisely of Doctor Airie made the special verdict vitious and will inveigle the Iudges so that they cannot give Iudgement for it may be that Doctor Airie was presented by the same name of Corporation as the other presentee was for he said in truth the Case was so also the special verdict is vitious because they found not any time of the Presentation of Doctor Airie for peradventure he was presented by the said Colledge when he was Provost thereof and then his presentation is not good by 22 E. 4. and to this purpose he cited Heckers case in 12. H. 8. and one Fuljambes case in 6. E. 6. in Bendlows and then admitting that Doctor Airie should be intended an usurper if he shall avoid this lease it was also moved that if a Corporation by a false name present and admission institution and induction is made by a true name if this make a Plenartie and Boswel and Greens case Cook lib. 6. was cited See more after fol. The Maior of Lincolns Case Huddleston and Hills case IN an Attachment against the Maior of Lincoln and the Steward of the Court there being Colshil it was said that if a writ of error be directed to an inferiour Court they ought to execute it in all things although that their fee be not paid nor tendered to them and Mr. Man Secondarie to Roper said that the fee which is demanded by them ought to be indorsed upon the return of the writ of error so that the Iudges may judge of it if it be reasonable and divers presidents warrant that accordingly Huddleston and Hill against Bows an Elegit upon a judgement issued at the suit of Hill and after Hill died and his eldest son sued a scire facias upon the said judgement and holden that it lieth not If a man sue in the Ecclesiastical Court for Tithes of Headlands the Defendant may have a Prohibition but by some he ought to suggest that they are but small Headlands and that there is a custome of discharge in consideration that he paid Tithes in kinde of Meadows and in this case Williams said that if a man keep sheep in one Parish until Shearing time and then sell them into another Parish in this Case the Vendee shall pay the Tithe wool to the Parish where they were depastured in the greater part of the time of the growing of the wool See the Tithing Tavle the fifth question Skelton against the Lady Airie IN a Prohibition the Plantiff saith that was seised of the Mannor of Calthrop and also of the Rectory of Haughton Calthrop and that the land whereof the tithe is demanded is Coppihold and holden of the said Mannor and that this was also found by special verdict accordingly and that it had been always discharged of payment of Tithes and it was argued that the Prohibition did lie for it was adjudged Mich 34. 35. Eliz. that a perpetual union of the Parsonage and the land charged is a sufficient discharge of the Tithes and a prescription may be well enough to be discharged of the payment of Tithes as it appears by a Case put in the Arch-Bishop of Canterburies Case Cook lib. 2. George Crook of Counsel on the other side and he conceived that a perpetual unitie was no perpetual discharge and he said there was no judgement given in the Case cited before and he also said that the Iury in this Case found not a discharge of payment of Tithes but only a new usage to pay by unitie of possession and he cited 10. H. 7. or 6. where the manner of Tithing is set down also he cited the Bishop of Winchesters Case Cook lib. 2. and he cited the Prior of D. Case to be resolved in 40. Eliz. that a Coppiholder may prescribe to be discharged of Tithes by pleading that he was alwayes Tenant by Copie to a spiritual Corporation also he cited the Case of Pigot and Hern mentioned in Cook lib. 2. in the Bishop of Wintons Case fol. 45. and he said that it was adjudged in Sheddingtons Case that if a
and there bought Currants and imported them into England and he recited the Statute of the first of King James cap. 33. which grants 2. s. 6. d. for Poundage and he said that he had paid that and therefore he had refused to pay the 5. s. because it was imposed unjustly and unduly against the Lawes of the land whereupon the Kings Attorney demurred in Law this matter had been divers times argued at the Bar and at the Bench by Snig and Savil Barons and now by Clark and Flemming chief Baton whose arguments I only heard and Clark who argued first this day said that this Case being of so great consequence great respect and consideration is to be had and it seemeth to me strange that any subjects would contend with the King in this high point of Prerogative but such is the Kings grace that he had shewed his intent to be that this matter shall be disputed and adjudged by us according to the antient Law and custome of the Realm and because that the judgement of this matter cannot be well directed by any learning delivered in our Books of Law the best directions herein are presedents of antiquitie and the course of this Court wherein all actions of this nature are to be judged and the Acts of Parliament recited in arguments of this Case prove nothing to this purpose the best case in Law is the Case of Mines in Mr. Plowden Com. where this ground is put that the precedents of every Court ought to be a direction to that Court to judge of matters which are aptly determinable therein as in the Kings Bench for matters of the Crown in the Common Pleas for matters of inheritance and Civil contracts and in the Exchequer for matters of the Kings Prerogative his revenues and government and as it is not a Kingdome without subjects and government so he is not a King without revenues for without them he cannot preserve his dominions in peace he cannot maintain war nor reward his servants according to the state and honor of a King and the revenue of the Crown is the very essential part of the Crown and he who rendeth that from the King pulleth also his Crown from his head for it cannot be separated from the Crown and such great Prerogatives of the Crown without which it cannot be ought not to be disputed and in these cases of Prerogative the judgement shall not be according to the rules of the Common Law but according to the Presidents of this Court wherein these matters are disputable and determinable as for Example an action of accompt lies not by the Common Law against him who had the land of the accomptant by mean conveyance but if one be an accomptant to the King and had land in fee and alien it unto A. who alien it unto B. B. by reason of this land shall be charged with this accompt in 14. E. 3. a Coroner was elected by the Kings writ as he ought to be by the Countie and after be was amerced and because he was not sufficient to answer the Amercement the Countie was charged therewith and that appears of Record here and in 30. E. 3. Rot. 6. as appears also of Record in this Court one William Porter was Magister monetae and had received Bullien of divers Merchants and Coyned it in the Kings Mint and did not restore the Coyne to the Merchants but was insufficient and the King paid the Merchants and inquired of the suerties for the Coyne and it was found that he had none then it was inquired who recommended him unto the King and it was found by whom he was recommended and they who only recommended him as friends were charged with the Debt and if one be outlawed in a personal action and Debt is due to him upon a contract this shall be forfeited to the King and this is ordinary by the Presidents of this Court and yet this seems to be contrary to Law and is against our Books and the Kings Debtor shall have a quo minus against Executors upon a simple contract and therein he cannot release nor be non-suited and I put these cases to prove that the presidents of this Court ought to be pursued and observed although they seem to cross the Common Law and the Books thereof a case was here betwixt the King and Jourden Jourden was receiver and sold his office to one D. and he not being able to pay Jourden for his office at the day limited it was agreed that Jourden should come to the next receipt and when D. received the Kings money that Jourden should take it for his office which was done accordingly after D. was indebted to the King and this matter appearing as above c. Jourden was charged with the money which he had received and as Stamford in his first cap. of Prerogative saith that the King is the most worthy part of a Common-wealth so is he the preserver nourisher and defender of the people and true it is that the weal of the King is the publick weal of the people and he for his pleasure may a forrest the word of any subject and he thereby shall be subject to the Law of the Forrest and be may take the provision of any man by his Purvieour for his own use but at reasonable prizes and without abuse the abuse of which officer hath been restrained by divers Statutes and the King may take wines for his provision and also Timber for his Ships Castles or houses in the wood of any man and this is for publick benefit and the King may allay or inhaunce Coyne at his pleasure for the plentie of the King is the peoples peace and these imposts are not only for the benefit of the people and for the Kings profit but are also imposed many times for the increase of Merchandise and Commerce as the Statute of Aulnageors made in the 2. E. 3. cap. 14. which was made principally to make cloathes more Vendible and so Corporations are granted by the King with immunities and priviledges and to seclude other subjects from them are well limited and good for it is for the increase of the peoples wealth and thereby the Kings revenue is increased and sometimes there is contained in grants a Prohibition to other subjects that they usury not upon the priviledges of such Corporations upon a pain as in the custome of Forraign bought and Forraign sold in London and York and divers customes are permitted to such Corporations as in the Chamberlain of Londons Case Cook 5. and the breach or violation of these customes is a decay of the Corporations and so an impairing of the revenues of the Crown and therefore the King may make them and also give them priviledges and make inhibitions to others not to Vsurp upon them King Edward the third in the sixteenth year of his Raign proclaimed that no man should sell Wool-fels or Leather under such a price so that these staple commodities might not be
the world if he will or inflict a pain upon any who shall Trade into such place inhibited so may he do upon any commoditie either inhibit it generally or upon a pain or Impost and if a subject use the Trade after such inhibition or import his wars and pay not the impost it is a contempt and the King shall punish him for it at his pleasure and as to that which is said that it is a burthen to the Merchant that is not so for the burthen layeth it only upon the better part of the subjects and if it were a burthen it is no more then they themselves imposed which was in their hands by commission in the time of Queen Eliz. and they have raised the prices to subjects more then the value of the Impost and it is not to be intended that the King by any Impost will prejudice the cause of Merchants for the Trade in general is to him more beneficial then any particular Impost the case of the 11. and 14. H. 4. of Aulnageor is not to be compared to this Case for there the King had made a grant to a subject and it was also of a thing which was granted before to a Maior and also of a commoditie within the land and not transported and for the case of Darcy for the monopoly of Cards it is not like for that is of a commoditie within the land and betwixt the Patentee and the King and not between the King and the subject and as to the exception taken to the Information that it is Vsitar and doth not prescribe this needeth not for it is a prerogative wherein lieth no prescription for every prerogative is as antient as the Crown and as to the conclusion of the Information it was objected that it is not good for the informer ought to pray the forfeiture but this belongs to the Court to Iudge of what shall be lost or forfeited the offence being a contempt and therefore the conclusion good enough and so for all these reasons judgement shall be given for the King Flemming chief Baron touching the exceptions to the Information they are of no force for the first Vsitat c. it hath been well said that the King needs not prescribe in any prerogative for it is as antient as his Crown is 2. E. 3. and for the conclusion viz. that he in contempt c. that deserves no other answer but that which hath been given before for it is enough without doubt warranted by infinite presidents but for the Bar it is an increase of the Defendants contempt and no sufficient matter to answer an indigested and confused tale with an improper and disobedient conclusion and there is in it multa non multum but the conclusion is without president or example for he saith that the imposition which the King had laid is indebite injuste et contra leges Angliae imposita and therefore he refused c. in the case of Smith for Allom the conclusion was moderate and beseeming a subject judgement if he shall have Impost by his grant and in the case of Mines the Defendant being a great Peer of the Realm concluded upon his grant and interest in the soyl and that he took the Mettal as it was lawful for him and did not confront his Soveraign with terms of injuste indebitè and the like and the King as it is commonly said in out Books cannot do wrong and it the King seise my land without cause I ought to sue to him in humble manner Humillimè supplicavit c. and not with such terms of opposition in the Information and all his matter had been saved to him then as well as now or he might have pleaded his matter and said wherefore he refused as it was lawful for him but for the matter it is of great consequence and hath two powerful objects which it principally respecteth the one is the King his power and prerogative his Treasure and the Revenues of his Crown and to impair and derogate from any of these was a part most undutiful in any subject the other is the Trade and Traffick of Merchantdise transportation in and out of the land of commodities which further publick benefit ought much to be respected and nourished as much as may be the state of the question is touching a new custome Impositions or customs are duties or summs of money newly imposed by the King without Parliament upon Merchantdise for the augmentation of his revenues all the questions arising in the case are aut de personis de rebus vel de actionibus viz. form and proceeding the persons are first the King his power and authoritie Secondly not Bates the Defendant nor the Venetians but all men who import Currants the imposition is properly upon Currants and for them and is not upon the Defendant nor his goods who is a Merchant for upon him no imposition shall be but by Parliament The things are Currants a forraign commoditie and a Victual the 5. s. for impost which is said to be great the action formed or Process is the command by the great Seal and the word therein are Petere et recipere if they be sufficient and if good without Proclamation or other notice and how notice shall be given and if it be good without an ad quod damnum and the case of Mines in Plowden which is the sole case in the printed Books of Law to this purpose hath in it foure reasons of the judgement First the excellency of the King or his person Secondly the necessitie of Coyn for his state Thirdly the utillitie of Coyn for commerce Fourthly the inconvenience if the subject should have such royal possessions and these reasons are not extracted out of the Books of Law but are only reasons of policy for Rex est legalis et politicus and reasons pollitick are sufficient to guide Iudges in their arguments and such cases and presidents are good directions in cases of judgement for they are Demonstrations of the course of antiquitie where upon my judgement shall consist upon reasons politick and presidents the case in Dyer 1. Eliz. fo 165. was not like to the case in question but only a conference and the case there was for an impost upon cloath a domestick commoditie in this case are recited their Grievances but it was paid and it is denied here but there was no resolution thereof at the same time was the impost of Wines increased and paid and no petition or complaint thereof and the custome of Englands commodities were at the first imposed by the Kings will for no Statute giveth them viz. for Wool Woolfels and Leather and it was called the great custome and that it was paid it will not be denied and yet now it is doubted if the King can impose it upon forraign commodities the King may restrain the person as it is in Fitz. Nat. Br. à fortiori he may restrain the goods there was no custom for home Commodities
a place priviledged for Venison and not a place certain from whence a Venue may come and it was said that in the 16. Eliz. in Banco Regis in the Lord Padgets Case a Trespass was brought of 3. Acres of land in Beer-wood and the venire facias was awarded de vicineto de Beer-wood and the chief Baron Tanfield said that in this case the venire facias was not well awarded and so it was holden in the Kings Bench and therefore he would be advised in this Case and after at another day it was moved and then the chief Baron said that he had perused the Books touching the Case in question and that it appears by the 47. E. 3 fo 6. by Fuchden that a forrest is many times out of any Parish and therefore shall not be intended to be within any Parish and he said that the Defendant in this case ought to have pleaded that the forrest was within such a Parish and demanded judgement if he shall be answered without alledging it to be within a Parish and that otherwise judgement ought to be given for the Plantiff and so he said that it was now lately adjudged in the Kings Bench where a man was indicted for Hunting in a forrest and a venire facias was awarded de Foresta and good and he vouched also the 8th of H. 8. in Savages Case and the 7. of E. 3. and Baron Altham Accorded and he vouched also the Book of the 18. of E. 3. fo 36. where it is said expresly that if shall not be intended to be within a Parish except it be shewed in the pleading on the other side and he vouched also 27. H. 8. fo 12. and then all the Barons agreed that judgement shall be given for the Plantiff Airie and Alcock THe Case was argued again between Airie and Alcock concerning the misnaming of Corporations which was argued before as appeareth fo and Thomas Stephens the Princes Attorney argued that the lease is void by the reason of the misnosmer and he observed the Misnosmer to be principally in these two material things First where the foundation was by the name of the Hall or the Colledge of the Queen c. the presentation of the Parson and also the confirmation of the lease made by the name of the Queens Colledge c. omitting the word Scholers which should immediately precede the word Aulae Reginae which he held a material variance the second variance he observed to be thus that where the foundation was by the name of the Hall or Colledge of the Queen in Oxford the presentation and confirmation of the lease was by the name of Provost of Queens Colledge in the Vniversitie of Oxford so that the word Vniversitie was added which was not in the foundation and to prove that these variances were material for the avoiding of leases he cited the case often remembred in the argument before which conceived Merton Colledge in Oxford and the parties to this case were Fish and Boys which was in Trin. 30. Eliz. Banco R. Rot. 953. wherein the case was that the said Colledge was incorporated by the name of Warden and Scolers of the house or Colledge of Scholers of Merton in the Vniversitie of Oxford and that they made a lease by the name of the Warden and Scholers of the house or Colledge of Merton Colledge in Oxford so that the word Scholers which did immediately preceed the word Merton in the foundation is omitted in the lease as in the principal Case also where the word Vniversitie was added in their Corporation the same was omitted in the lease whereas on the other side this was not mentioned in Airies Case to be contained in the foundation but added in the lease and he said that for these variances in Merton Colledge Case the lease was holden to be void which he held to be all one with our case but he agreed that in divers cases variances in addition of surpluage shall not be hurtful in a lease as appears by 21. and 22. E. 4. and therefore though in the principal Case the word fellows was added in the lease which was not in the foundation he would not argue that this should be any variance to hurt the lease Hern Baron seemed that the verdict is not sufficient to move him to give judgement for the Plantiff for he said although it be admitted that the lease by reason of the variance is not good yet the verdict doth not sufficiently finde that Doctor Airie is a person who may take advantage of the invaliditie thereof for it appeared not of whose presentation Doctor Airie came to have the Parsonage for although that it should be admitted as it is said in Heckers Case 14. H. 8. that here might be Parson of his own presentment yet it is not found that he did so here and he said that in every quare Impedit it ought to be expressed what person made the presentation to the variance he thought the lease to be good notwithstanding that for he said that the word Scholers is not added in the foundation as a part of the name of a Corporation but only to express what kinde of Colledge this should be viz. to distinguish it from a Merchants Hall or Colledge and therefore though the word Scholers be put in yet we properly call it the Queens Colledge and not the Queen Scholers Colledge for it is not of necessitie that the Scholers of the said Colledge should he the Queens Scholers but that they are Scholers of the Queens Colledge and he vouched 2. H. 7. Fitz. Titles Grants and as to the case of Merton Colledge cited by Stephens he said that in that Case there was a main imperfection in the verdict which as he thought might move the said judgement to be given as it was and not the matter in Law for they did not finde that the lessor was warden of the Colledge at the time of the lease made also he vouched Cook lib. 6. Sir Moil Finches Case and he vouched Sir Peter Seawels Case where in a lease made by a Corporation that these words ex fundatione Regis E. 6. which were part of their foundation were omitted and yet the lease good and he cited also the case of the Bishop of Peter Bourough where the Corporation was by the name of Episcopi de Burgo Sancti Petri and a lease was made by the name of the Bishop of Peter Bourough and the lease good and that no difference in substance and if a Corporation were made by the name of Scholers and fellows and in a lease the word fellows is omitted yet it is good and therefore in the principal Case it seemeth that the omission of the word fellows is not material also he said that the addition of the word Vniversitie which is no part of the Corporation is not fatal to the lease for in the Lord Norths Case 36. 37. Eliz. the addition of the word Vniversitie or the omission thereof was holden
of no force to avoid the lease Altham Baron Contra for the matter in Law but for the insufficiency of the verdict he thought that there ought to be a new venire facias for no judgement may be given for any partie for the insufficiency of the verdict for it is not found that Doctor Airie was presented And therefore he cannot have an action for it cannot be intended that his presentation was by a better name then the other presentation was and he cited the 11. H. 7. fo 8. and 17. E. 3 title quare impedit he who will avoid a presentation ought to intitle himself Secondly it is not found here that the Church is void sufficiently he said that if a Provost present himself this is void meerly and he cited Heckers Case it is not found here that Doctor Airie entred post inductionem for it is said that he entred ante praedictum tempus quo c. but not that he entred after induction and therefore it may be he entred before and then it is not good but for the matter of Misnosmer it seemeth that this avoids the lease contrary to Baron Herns opinion wherefore the chief Baron Tanfield advised the parties to agree to have the true case rightfully found by a new special verdict for he said to Doctor Airie that no judgement can be given for him what opinion soever himself and Baron Snig should hold the which they would not deliver for Snig Baron said that by 40. Assise that if a man be indebted to the King and deviseth all his goods to A. and the Executor assenteth and after this debt is demanded the Legatee in this Case shall be charged for this debt and so was it ordered by him and Tanfield as reasonable and equal but Hern and Altham contrary for it was the folly of the Executor to assent to the Legacie and they said that it was so adjudged and resolved in Sir William Fitzwilliams Case in the Exchequer Chamber by an English Bill Upon a motion made by Walter it was shewed by him out of a Record in the Tower that in the 31. E. 1. a Statute was made to discharge Merchants strangers from the payment of Prisage of Wine and allowed by the Court that no Merchant shall be chargable for the prisage of Wines see more of this Case in the Tit. of Doublin in Ireland An Information against Sir Edward Dimock THe Case of the Information against Sir Edward Dimock which was the fast Term was now argued again by Thomas Crew for the King but his argument I have not written Walter for the Defendant said that the Commission for taking of the acknowledgement of the lease was not returned in the life of the Queen nor the case was not put in this case in the Queens life time as it was in divers of the cales cited of the other side and therefore it differs from them in this case he observed foure points First if this lease should be good if it were never inrolled Secondly admitting that it cannot if here be such an inrolment as is requisite Thirdly admitting that the fease is good without inrolment or with this inrolment then if this can avoid the lease made in the Interim Fourthly if no lease be good until inrolment then if the confirmation being made before the inrolment can be a good confirmation And as to the first he conceived that the Cases put of personal Chattels vested in the King without Record are good Law but here it is of a real Chattel and he said that there are three reasons to prove that personal Chattels are in the King without Record First they are in judgement of Law trivyal Secondly they are perishing and of no continuance Thirdly the Records would be infinite if they should be of Record but there are no such reasons to prove that real Chattels should not be of Record for in the judgement of Law they are of greater value and are also more permanent and therefore Thrope saith in the 18. E. 3. that it had been adjudged that Livery ought to be made upon a lease for 100. years also lessee for years shall have aid but lessee at will shall not also it appears by Cook lib. 4. in Sir Andrew Corbets Case that a Gardian shall not avoid a lease for years also the Statutes regard leases for years and it was holden in Gravenors Case in the 23. Eliz. in the Court of Wards that a woman shall forfeit her joynture for making of a lease for 40. years by acceptance of a fine and reservation of a rent also lessee for years may falsifie a recovery also it is agreed of the other part that the King cannot take an use without Record and 6. E. 6. Dyer Bourchers Case the King cannot take an use without record also he said that in every case where a Deed or Record is requisite for a freehold the same conveyance is also requisite for a lease for years and therefore if a freehold be conveyed to a body politick it ought to be by Deed the same Law if a lease for years be conveyed to them and so if a lease for years be made of a hundred or rent this ought to be by Deed by 15. H. 6. fo 38. also in Bayes and Norwoods Case 41. Eliz. it was adjudged that a lease for years cannot be made to a corporation without Deed 2. E. 6. Brook Tit. Recognizance 19. a man cannot make a surrender to the King without Record the second point he said that the inrolment being made after the death of the Bishop Lessor or of the Queen Lessee is no sufficient matter of record for in judgement of Law nothing shall pass out of the Lessor until the inrolment and therefore the inrolment is the thing which maketh the estate and not only which perfecteth it and in all cases as appears in Say and Fullers Case the thing which maketh the estate or which perfecteth it ought to be in the life of the Lessor and therefore if a reversion be granted attornament ought to be made in the life of the grantor 40. Assises pla 19. 16. Assises pla 15. and Cook lib. 2. in Tookers Case and to prove further that the thing which ought to perfect the estate ought to be in the life of the grantor or feoffor he vouched 31. E. 3. tit abbe 10. and 41. E. 3. and temps H. 8. tit feofments if a feoffe enter not by force of a livery within the View this is not good and if a Bishop make a lease and the Chapter do not confirm it until after his death it is not good by 31. E. 3. tit Abbe 10. also here to prove that in respect of the Queen Lessee died before inrolment that the lease is not good for this purpose he vouched 24. E. 3. and the 11. E. 4. and the 7. H. 4. and 21. E. 4. that Chattels granted to the King shall go to the successor and not to the Executor and
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
adjudged in the Exchequer chamber and in this case the scire facias ad audiendum errores and all the writ and this scire facias in our case ought to have been made against the said Julian as against a married woman and the writ of execution which is the warrant to the Sheriff is not in such words as the judgement in the Kings Bench is upon which it is founded viz. that he should take the aforesaid Julian c. but that he take the said Julian Goddard then the Sheriff shall not say in his defence that all the proceeding in the writ of error was against the person and aided himself by entrie in the roll of the Court viz. quod praedict Julianum capiat c. but he ought to rely only upon the writ and if in this case he would save himself then he should have inquired upon the delivery of the writ unto him by Lovies who was that Julian Goddard and if thereupon Lovies had informed him that it was Julian Doillie then the Sheriff should have an action upon the case against Lovies upon this false information viz. if A. prosecute a replevin to replevy his Cattle and thereupon he cause the Sheriff to deliver unto him the Cattle of B. for this here B. hath his remedy against the Sheriff and the Sheriff against A. for this false information also he said that if a fieri facias cometh to make execution of the goods of B. if the Sheriff take others goods in execution a Trespass lieth and therefore to secure himself he ought to impannel an inquest to finde if they be the goods of B. or not and then as he conceived it is good but the opinion of the Iudges in the Kings Bench in Mich. 5. Jac. in Trespass between Rookwood and Beal was to the contrary for there a Trespass was brought by Rookwood and the Defendant justified the taking and so forth as Sheriff by vertue of a fieri facias as of the goods of Edward Rookwood father of the Plantiff and upon the execution of this writ the Defendant impannelled a Iury who found the goods to be the goods of the said Edward Rookwook for which c. the Plantiff in the replication Traversed that they were his goods absque hoc that the Iury found that they were the goods of Edward Rookwood c. whereby it seemeth that the finding of the Iury in this case is not material and so the Court then conceived therefore quaere the opinion of Tanfield chief Baron in that point and see the 17. E. 2. pl. 373. and 31. E. 3. Assise pla 378. and 7. H. 4. fo 27. Trespass pla 279. what acts a Sheriff may justifie by reason of a commandment and authoritie from the Court which commanded him Snig Baron seemed that the action did lie for the writ of capias ad satisfaciendum maketh no mention that Julian Doillie is the same person against whom judgement was given in the Kings Bench by the name of Julian Goddard and although that the entrie in the Roll is against the said Julian c. yet the writ is directed that he should take Julian Goddard and then the Sheriff had not done according to the writ in the taking of Julian Doillie and he said that if A. binde himself by the name of I. and judgement is given against him by the name of I. without appearing in person and execution is granted against him by the name of I. in this case an action lies against the Sheriff if he take the said A. in execution for it appears not to him that it is the same person but for the other cause it seemeth that the Plantiff shall not have judgement for the Sheriff is no such person who ought to be priviledged here and therefore the Plantiff should have his remedy else where and he said that such a case hath been reversed in the Exehequer Chamber for error for the under-Sheriff is but an Attorney for a partie priviledged that is for the Sheriff but all the Clarks of the Court and the other Barons were against him in that and also all the presidents Altham Baron had never heard it argued before and therefore he respited his opinion till another day at which day he said that the arrest is not justifiable and so for the matter an action well lieth for by him the arrest ought to be in this case with a special recital that whereas judgement was given and so forth as in the 1. and 2. H. 6. if an Abbot hath judgement to recover and after he is deposed a scire facias lieth not against him as Abbot to reverse this judgement and see 10. E. 4. a capias against A. the son of R. c. see the 19. of H. 6. fo 12. Summons against Iohn S. c. see 18. H. 8. fo 1. a replevin was brought in the Countie Palatine against A. widdow and after she married D. and the plaint was removed into the Common Pleas mentioning her marriage c. and so here the scire facias ought to mention all the special matter and thereupon the writ of execution upon the reversal of the judgement ought to be against Iulian Doillie and not being so the Sheriff is punishable c. but it seemed to him that in this action the wife ought to have joyned with her husband for the false imprisonment or at the least if the husband had brought the action alone there ought to have been a special mention of the loss which the husband particularly had sustained as per quod consortium uxoris suae amisit or otherwise clearly it lieth not for the husband alone and he resembled this case to the cases in the 9th of E. 4. fo 51.22 Assise pla 87.46 E. 3. fo 3. where husband and wife ought to joyn in an action or at the least the declaration ought to be special as aforesaid and so are the books of the 20. H. 7. and Kellaway to be intended and for this cause he thought the Plantiff shall not have jugement here Tanfield chief Baron as I conceived said unto him that the writ ought to have been with a special averment but a surmise ought to have been made against Iulian Doillie as she now is for as the writ is the Sheriff may safely return she is not to be found and thereupon c. quaere if he intended the writ of scire facias ad audiendum errores or the writ of execution awarded upon the judgement in the Kings Bench for he did not mention any particularity of the writ but it seemeth that he intended the writ of execution and then the surmise whereof Tanfield spoke ought to be made upon the roll of the judgement given upon the writ of error and Tanfield chief Baron said as to the joyning in action that clearly for a battery made upon the wife the husband and wife ought to joyn in the action as the books are cited before by Baron Altham and so
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
of the wife of the devisor is not determined until the issue should have come to the age of 18. years and so none of the other points came now in question and judgement was given as above-said Nota that in Mich. 6. Jac. upon a motion made by Mr. Nicholas Row of the Inner Temple it appeared that an inquisition was returned in this Court by force of a commission whereby it was found that one A. was seised of the Mannor of D. and so being seised of the said A. was attainted of Treason in the Kings Bench and of this should be a double matter of Record to intitle the King so that the owner of the land shall be forced to his Petition it was the question and by the Court in regard that the record of the attainder is not in this Court here is not in judgement of Law a double matter of Record but if the attainder he removed into this Court then that and the inquisition would make a double matter of Record and the Attorney general moved that when an office findes the attainder that the party ought to plead no such record Worselin Mannings case AN Information of intrusion was brought against Worselin Manning and others and upon the opening of the evidence at the Bar it appeared that Worsely Manning was an alien born and that he was made a denizen by the King and the Charter of Denization had this Proviso usual in such Charters of Denization that the Denizen should do legal Homage and that he should be obedient and observe the Lawes of this Realm and after by vertue of a Commission under the great Seal an office found that the said Worselin after the Denization purchased the land in question and it was found also by the same office that the said Worselin never did legal Homage and that he was not obedient to all the Lawes of this Realm and there was an offer of demurrer upon the evidence if the Prviso makes the Patent of Denization conditional and so for the not performance thereof the Charter of Denization shall be void and Harris thought clearly that this proviso for the performance and observation of the Lawes doth not make the Patent conditional but the intent only was that if he do not observe them then he shall forfeit the penalties therein appointed to which the Court inclined and after resolved accordingly At another day it was moved in Mr. Rowes case that the possession shall be awarded to the King and in this case Tanfield gave a Rule that Mr. Row ought to plead to the inquisition but no possession should be taken from him for although that the attainder make a double Record yet if the indictment of Treason be taken before Iustices of the peace more then a year after the Treason committed as in this case it was and the partie is outlawed upon this indictment and the inquisition findes this outlawry generally yet this is no double matter of Record for the outlawry is meerly void upon the said indictment because the indictment it self is void and to prove that when an indictment is void that is void as to all purposes be vouched Vauxes case Cook lib. 4. fo 44. and 11. R. 2. and after in this case the Barons awarded proces to plead but not to dispossess the partie Vaux against Austin and others AN Information by Vaux against Austin and others that they did ingross a 1000. quarters of Corn upon not guiltie the Iury found one of the Defendants guiltie for 700. and not guiltie for the residue and found the others not guiltie for all Prideaux moved that judgement may be given to acquit the Defendants in this case and he vouched the 9th of E. 3. fo 1. and 14. E. 4. fo 2. where an Information was brought for forgery and proclaiming false deeds and he was found not guiltie of the proclaiming and 3. Eliz. Dyer 189. in the Lord Brayes case put by the way and therefore he said that if there be an information upon the Statute of Vsury against two and the Iury found the contract to be but with one of them both shall be acquitted and also he vouched Treports case in lib. 6. where a man declared of a lease made by two where in Law it was only the lease of one and the confirmation of the other and therefore evil 8. R. 2. tit brief and if judgement in this case should be given against one being in a joynt information he could not plead it in Bar of another information for the same thing and then he should be twice punished for one fault Hitchcock to the contrary the Defendants plead that they nor any of them are guiltie and issue was joyned thereupon and by him this case is not to be resembled to the cases which have been put of joynt contracts for here the parties commit several wrongs and he said if in a decies Tantum against divers if one be acquitted the other shall be condemned and so in an action of Trespas 37. H. 6. fo 37. touching maintenance and if in Trespas against two one is found guiltie for one part and the other found guilty for the other part and 40. E. 3. fo 35. and 7. H. 6 32. in trespas the Defendant pleads that John S. infeoffed him and R. S. and the Plantiff saith that he did not infeoffe them and the Iury found that be infeoffed the Defendant only in this case judgement ought to be given if either of them be guiltie and therefore there is a difference between that and Wain-wrights case for the information was for the joynt buying of butter and Cheese but here the information is for ingrossing by way of buying and so he prayed that judgement may be given for the King Tanfield chief Baron if upon the Statute of Champertie a man declares upon a joynt demise by two and it is found that one only made the demise it was adjudged good and by him this proves the case in question and the Barons agreed it to be clear that if a contract be alledged to be made with one of them no judgement for usury ought to be given but in the principal case all but Tanfield agreed that several judgements may be given for it is like unto a Trespass and accordingly judgement was given in the principal case against him who was found guiltie Nota by Tanfield chief Baron and all the Court that where the Statute of the 23. Eliz. appointeth that if any will inform against A. Recusant and the Recusant be thereupon convicted that the informer shall have one moitie and the King shall have another yet if a recusant be convicted according to the form of the Statute of 28. Eliz. by indictment an informer can never have any advantage upon an information exhibited after for the Statute of the 28. Eliz. altereth the course of Law which was upon 23. Eliz. and no informer can have any advantage upon a conviction of Recusancy by indictment after the Statute
of the 28. Eliz. according to this opinion there was a judgement now lately in the Common Pleas as the chief Baron Tanfield said but if a Recusant be not convicted of Recusancy an informer may have advantage against him according to the Statute of the 23. Eliz. notwithstanding any thing in the Statute of the 28. Eliz. Jacksons Case UPon a motion made by Sir John Jackson in a suit by English Bill between Jackson and another Tanfield said that it had been decreed in the Chancery betwixt one Gore and Wiglesworth that if A. agree with me to lease black-Acre for certain years to me and after before he makes my lease according to his promise he infeoffes B. of that Acre for a valuable consideration and B. had notice of this promise before the feofment made unto him now B. should be compelled in the Chancey to make this lease to me according to the promise and by reason of his notice and so the Court agreed upon a motion made in the like case by the said Jackson for as before the Statute of 27. H. 8. a feoffee upon valuable consideration should be compellable in the Chancery to Execute an use whereof he had notice so here Sir Edward Dimocks Case argued before BRomley the puisne Baron thought judgement should be given for Sir Edward Dimock against the King for the matter in Law he argued but three points First that the lease made to Queen Elizabeth in the year 26. is not good clearly without a matter of Record for although that he agreed that personal Chattels may be conveyed to the Queen without matter of Record yet Chattels real can not for they participate in divers qualities with inheritances and freeholds and therefore if a man possest of a Term for years demiseth it to A. for life the remainder over to B. that this is a good remainder adjudged now lately in the Common Pleas but otherwise it is of Chattels personal as it appears by 37. H. 6. the case of the devise of a Grail Secondly the acknowledgement of the lease before Commissioners and the prayer of the Bishop to have it inrolled makes it not a record before inrolment for it appears by the 21. H. 7. that if the Sheriff by vertue of a writ doth any thing yet it is no matter of Record until it be returned and so is the 9th of Ed. 4. fo 96. that if the Phillizer of a County enter Process of outlawry in the room of a Phillizer of another County this is not a Record in judgement of Law although that it be a thing recorded and so he conceived that it was no sufficient Record in regard the Commissioners have not certified this recognizance and the prayer of the Bishop Lessor in the life of the Lessee and Lessor whereby as he said he admitted that if this were certified by the Commissioners in the life of the Lessor and Lessee that then without inrolment this had been a sufficient record to intitle the Queen who was Lessee Thirdly he argued that the inrolment subsequent in this case in time of the King that now is maketh not the lease good which was made to the Queen for he thought that the interruptions hindred the operation of this lease by interruptions he meant the death of the Bishop Lessor and of the Queen Lessee as it seemeth and the lease in possession of Sir Edward Dimock by force thereof without inrolment and therefore he said it was adjudged if a man covenant to stand seised to the use of his wife which shall be and there he makes a lease of the land and then takes a wife this lease by him is such an interruption that the use shall not arise to the wife but in Wintors case in Banco Regis 4. Jac. and also in Russels case although it seemed to be there agreed that the lease for years should be good yet it was not resolved but that the wife may have freehold well enough by vertue of that Covenant and he also vouched and agreed to Bret and Rigdens case in Plowden Com. where the death of the devisce before that the devisor died did frustrate the operation of the will and so of the death of the Queen being Lessee also he vouched the Duke of Somersets case 19. Eliz. Dyer 355. First as to the exceptions taken to the Bar by the Attorney general which were two it seemed to him that notwithstanding them the Bar is good for whereas it was objected that the Bar is that the Commission and acknowledgement of the lease were not returned by Hamond and Porter who were the two Commissioners who returned it to that he answered that the information mentions the acknowledgement and the return before them two and therefore there needeth no answer to more then is within the information also it cannot be intended to be returned by the other two Commissioners in regard that they were only to the connizance Secondly as to the other exception viz. that where the information saith that May Bishop of Carlisle by his certain writing of demise had demised c. for the Bar is that the said Bishop made a certain writing purporting a demise c. that this shall not be intended the same writing mentioned in the information and 6. E. b. Dyer 70. Ishams case for Ilebrewers Park vouched in maintenance of this exception and he said that it cannot be intended but that the Bar intends the same demise mentioned in the information for here the lease mentioned in the information and the lease mentined in the Bar agree in eight several circumstances as it was observed by the Councel of Sir Edward Dimock see the argument of Bandrip and 1. H. 6. fo 6. where a scire facias was brought against I. S. the Sheriff returned that according as the writ required he had made known to I. S. and doth not say the within named I. S. Altham Baron accordingly as to the matters in Law there are five points to be considered in the case First he said that the making of the lease to the Queen without acknowledgement is not good nor matter sufficient to intitle the Queen and he vouched 5. E. 4. fo 7. and 7. E. 4. fo 16.4 H. 7. fo 16.21 H. 7. fo 18.1 H. 7.17 and 3. H. 7.3 the same Law when awardship is granted and so an use cannot be granted to the King without matter of Record 6. E. 6. Dyer 74. that the Kings Lessee for years cannot surrender without matter of Record Secondly it seemeth that the confirmation of the Dean and Chapter is good notwithstanding it wanteth inrolment and notwithstanding the confirmation made before the inrolment and so before the being of the lease for here is only an assentor the Dean and Chapter for the Bishop hath his land in right of his Bishoprick and an assent may be aswel before the lease as after insomuch no interest passâ—th so also may an attornement be good before a grant of the reversion
therefore he had done well to shew the special matter as he had done and not to confess it as it is in the in formation nor to traverse the said demise because it is matter in Law 5. H. 7. and Vernons case Cook lib. 4. he needs not traverse absque hoc that the lease was made for and in satisfaction of Dower and to shew the special matter viz. that it was a conditional lease and so leave it to the Iudges for the matter in Law if it be a joynture or not also it seemeth to me that it is sufficient for the Bar to say that the Commission was not returned by Hammond and Porter for that is a Traverse to the information and it cannot be intended to be returned by any other of the Commissioners in regard that those two only did execute it for the taking of the acknowledgement as the information mentions but he said nothing in this case if this Commission may be returned by those Commissioners who took not the acknowledgement also by him and Snig Bromley absent sigillo suo ratificat is good enough without saying sigillo suo sigillat contrary to Baron Altham also the Defendants have shewed the time in their Bar when the first lease was intolled so that it is certain but it seems to me that admit the matter in Law was for the King yet upon this information we cannot give judgement for him for the information is for the mean profits incurred before the inrolment and this is clear that the King cannot have them without doubt admit that the Bishop had been living yet the inrolment cannot relate as to the mean profits although it should be admitted to be good to make the lease good at the time of the inrolment and so upon all the matter he agreed that judgement ought to be given against the King and so it was Tanfield chief Baron said that if a man take a lease of my land from the King by Patent rendring rent this is not an Indenture to compel him to pay the rent for the King had nothing to grant whereupon a rent might be reserved to him Altham Baron said that the King shall have the rent here as by estoppel between common persons but it was adjourned It was said by Tanfield chief Baron that a Collector of a fifteenth may levie all the Tax within one Township upon the goods of one inhabitant only if he will and that inhabitant shall have aid of the Court to make each other inhabitant to be contributory which was granted by the Court Bromley being absent Tanfield chief Baron said that if a man had judgement against A. upon an Obligation who dieth and another Obligee of the said A. assignes his Obligation to the King the Executors of A. satisfie the said judgement it is good against the King in respect the debt now due to the King was not upon Record before the death of the Testator which was granted by the Court. Levison against Kirk THis Term the case between Levison and Kirk which was opened the last Term was adjudged and the case was that Levison brought an Action upon the case in the office of Pleas against Kirk and declared that whereas the Plantiff was a Merchant and 13. Martii 40. Eliz. intended to go beyond the Seas to M. to Merchandise and the same day and year at D. he acquainted the Defendant with his determination and then in the same place appointed and trusted the Defendant being his servant to receive for him all such Merchandise and goods which should be sent over or carried or conveyed by the Plantiff in the same voyage and to pay for the custome of them and to dispose of them and convert them for the profit and commoditie of the said Plantiff and thereupon conveyed divers goods to the Defendant and that the same day and year the Plantiff took shipping and sailed to M. and that within five dayes following 20. pieces of Velvet were brought into the Port of S. consigned by the Plantiff to the Defendant in the absence of the Plantiff and that the Defendant on purpose to deceive the Queen of her custome and to make the Plantiff to allow custome unto him did take of the said goods so consigned and land them on the land at S. aforesaid the custome not paid whereby the Plantiff lost his goods as forfeited for default of payment of custome to the damage of c. and upon not guiltie pleaded a venire facias was awarded to the the Sheriff that he should cause to come 12. from the Venue of D. and those c. viz. from the place where the trust was reposed and from the place where the trust was broken and thereupon the Defendant was found guiltie and damages 50. l. and in Pasch Chibborn Serjeant moved in arrest of judgement that the Action did not lie for every fault against the servant although it be such a misfeazance for which the Plantiff receives prejudice and therefore if you will have an Action in this case you ought to shew a special trust reposed and a breach of that trust by the servent or otherwise an Action upon the case lieth not and that is not observed here for although that you shew that the Defendant being your servant was appointed and trusted for the goods to be consigned in the said voyage yet you did not shew that these goods were not consigned in the said voyage neither do you shew that he was such a servant generally used to be imployed in trading for your goods neither do you shew that you have allowed or delivered moneys to him to make him able to pay the custome and to say that by the sale of the goods themselves he may pay it himself and you appointed him to dispose them at his pleasure yet hereby you do not inable him thereunto for he ought to pay the custome before he sell them and them peradventure he had not money to discharge the custome wherefore there is no cause of your Action as this Declaration is and therefore he prayed that judgement may be stayed George Crook prayed that judgement may be given for although it bâ— not expresly shewed that the Plantiff continued beyond the Seas in the said voyage at the time of the coming of the goods to the said Port yet the intendment ought to be so of necessitie in regard it is shewed that within five dayes after his departure and in his absence these goods were consigned c. and his return cannot be intended in so smal a time and he vouched 21. E. 4. fo 13. also it is not material in the case to shew that the Master hath left where withal to pay the custome for here the Action is brought in respect of deceipt and fraud in the Defendant and this is inferred divers wayes the first that the Defendant ought to receive my goods Secondly that he should pay the custome Thirdly that he should dispose of them at his pleasure for
by express terms quaer if in this case there was any land occupied with Parkhal which was not parcel of Cudworth nor of Parkhal for if so then it seems that Blackclose will be within the exception in regard that the words and lands occupied therewith viz. Parkhal are well satisfied Harris Serjeant said that the case is to be resembled to the point in Carter and Ringsteeds case concrrning the Mannor of Odiam where a man was seised of of a Mannor within which the Mannor of D. did lie and is parcel thereof and he by his will devised the Mannor of D. excepting the Mannor of Odiam where the Mannor passeth by the devise and is not excepted Snig and Altham Barons agreed that this proves the case in equity but by the chief Baron Tanfield because this is a rare case that we should reverse or undo a decree made by our predecessors in the very point decreed by them it is good to be advised and therefore they directed Arden to finde presidents if he could by search made for them in the said case and therefore the Attorney general who was of Councel for Darcie had demurred upon the Bill which was exhibited by Arden and that he being not present day was given until another term to hear Councel on both parts at which day the Attorney said that he conceived it a strange case and without president that a Court should impeach and reverse the decrees given in the same Court and that if it should be suffered the subjects would be vexed and troubled without any end or quiet and this stands with the gravity of every Court to maintain their own judgements and therefore several Statutes were made to reverse judgements upon erroneous proceedings and judges of other Courts constituted to examine them which proveth that before the Statutes aforesaid and without aid of them the Iudges would not reverse their own Iudgements and so here Harris to the contrary it is not without presidents that in a Court of equity one and the same decree in the same Court hath been reversed by decree of the same Court upon some consideration had of the erroneous misprisions of Law and it is no dishonour to a Court of justice so to do for matter in Law but otherwise it were for matter of fact for then that betrayeth an Ignorance in the Iudges which would be a dishonour to the Court but for Law men are not Angles and for that point there may be errour to prove that the Court of equity may do so he vouched the Book of 27. H. 8. fo 15. Martin Dockwraies case which is our very case ruled in the Chancery and so he said that in this Court 3. Jac. a decree made in the time of Baron Manwood was reversed upon the like reason and Tanfield chief Baron said to Serjeant Harris that if it appear by your president that if the same matter in Law which was decreed was reversed in the same point in Law then this proveth for you but if it were for matter of fact otherwise it is and therefore we will see your president Kent and Kelway KEnt and Kelway entred Hil. 6. Jac. Rot. 722. in the Exchequer in the case between Kent and Kelway which was debated Pasc 8. Jac. the Iudges pronounced in the Exchequer Chamber that judgement ought to be affirmed notwithstanding their opinion before to the contrary as it appeareth and therefore I demanded of Mr. Hoopwel Clark of the Errors what was the reason of their opinions and he told me that the case was debated by them this Term at Serjeants Inne and then they resolved to affirm the Iudgement and the reasons as he remembred were as followeth and he also delivered unto me the case as he had collected it out of the Records and delivered it to the Iudges which was that the Plantiff in the Kings Bench declared that one Benjamin Shephard was indebted to him in 300. l. and that he sued out of the Kings Bench an Alias Capias directed to the Sheriffe of N. to the intent to compel the said Benjamin Shephard upon his appearance to put in Bail according to the custome of that Court for the Recovery of his debt which writ was delivered to John Shaw Sheriffe of the said County to be executed the Sheriffe made his warrant to the Bailiffe of the liberty of the Wapentake of Newark and the Plantiffe himself delivered it to James Lawton Deputy of the Lord Burley the Kings chief Bailiâ—e of that liberty to be executed and the Deputy Bailiffe by vertue of the said warrant arrested the said Benjamin Shephard whereupon the Defendant with others made an Assault and rescued the said Benjamin Shephard out of the custody of the said Deputy Bailiffe whereby he lost all his debt and damages were assessed at 172. l. and cost 10. l. and in this case the Iudges agreed that notwithstanding the Defendant had rescued the said Benjamin Shephard out of the hands of c. when the said Benjamin Shephard was arrested upon an Alias Capias out of the Kings Bench which writ is only in nature of a plea of Trespass yet the party who rescued him shall answer in this action damages for the debt because the Plantiffe by this means had lost his debt And yet it is not shewed that the Rescuer knew that the Plantiffe would declare for his debt but if in this case the Sheriffe or Bailiffe had suffered a Negligent escape they should be charged only with the damages in the same plea as the writ supposeth and no for the debt and so a diversity also they agreed that the Declaration is good enough to say that he was rescued out of the hands of the Deputy Bailiffe and the course in the Kings Bench was alwayes so upon the return of a rescue notwithstanding the Book of the 7. Eliz. Dyer fo 241. also it was resolved that the Declaration was good saying that he sued an Alias Capias without mention of any latitat before sued also it was agreed that the arrest was good made by the Deputy Bailiffe by vertue of a warrant delivered to the Sheriffe but quere if they should not examine if the Bailiffe had a power given to make a Deputy by his Patent for this appears not in the case Bently and others against Leigh in Trespas Hill 45. Eliz. Rot. 1231. Trin. 7. Jac. in the Exchequer TPe Iudges affirmed a Iudgement this Term between Leigh Plantiffe in a writ of Error and one Bentley and others Defendants and the matter assigned for Error was because the Trespass was brought in the year 45. Eliz. for a Trespass made in the 42. Eliz. and the judgement upon the verdict was against the Defendant and the Margent of the Roll it was entred quod Defendens capiatur where it ought to be pardonatur as he pretended for the general pardon which was in 43. Eliz. had pardoned the fine to the King for the Trespass and this is a thing whereof the Iudges
Queen here the Queen can have no remedy upon this promise without matter of Record and this is proved by 26. E. 3. fo 20. and without question the King intended by this Assumpsit that she might have remedy for the not performance thereof and although the Iury finds a Covenant in the Patent for repairing yet this is no sufficient performance of the consideration for the words super se assumpsit imploy a thing precedently done and not to be done or contained in the same Letters Patents as if the King recite in consideration that A. had surrendred he grants the same laud supposed to be surrendred although the very acceptance of the new grant is a surrender yet this is not the surrender intended nor this is not the consideration which moved the King for he intenedeth a precedent surrender and the very words and intent ought to be performed in the point of consideration or otherwise the grant is meerely void although it be not of a thing beneficiall to the King as appears by Cooke lib. 6. in the Lord Chandos case and although the consideration be but of a personall thing and not of a reall as the difference is taken by our Books and although that the consideration be of a thing executed and not Executory as also some Books take a diversity yet as it seemes to me the falcity herein avoids the Patent for this is of a thing which sounds to the Kings commodity and he vouched Barwicks case Cook l. 5.94 and 3. H. 7. that if the King for money paid makes a grant c. there it ought to be averred that the money was paid and in 21. E. 4. fo 48. if the King in consideration that A. had released a debt wherein truth there was no such debt c. this faâ—city avoids the grants Also if the King in consideration that A had surrendred his Letters Patents of an Estate Taile Grants him c. although that by the surrender the King was to have benefit notwithstanding because the estate yet continueth therefore this falsity avoids the Patent as appears in the Lord Chandos case Cook Lib. 6. Altonwoods case Cooks lib. 1. fo 43. and in our case the consideration is of a thing beneficiall to the King to be performed therefore the falcity much more avoids the Grant Also the Covenant found here to be made doth not aide the matter at all for it is not proper to be called a Covenant in Letters Patents because he did not seale unto it and it cannot be called his deed but yet shall be bound thereunto for his estate but not by way of action as the consideration intends Also it seemeth notwithstanding the construction here was that in consideration the Lessee would repaire c. yet as our case is the Patent is void because it is not repaired according as appears by Barwicks case Cook lib. 5. fo 94. that if the consideration in the case of the King be not duly performed and that prejudice may accrew to the King by reason of the not performance thereof this avoids the Patent Also if the case be so this would be an estate conditionall between common persons 38. H. 6. and the 6. E 6. Dyer 72. and 21. E. 4. by Hussey pro quod Relaxabit c. and so in Sir Thomas Wrothes case Plowden and 15. E. 4 for the King had no other remedy to compell the thing to be done except to seise the land for the not performance therefore it appears by 21. E. 4. and Cook in Altonwoods case that the Grantee ought to plead this consideration to be performed on his part which also appears by Sir Thomas Wrothes case if it be of a thing Executory and so for all these causes I pray that Iudgement may be given for the Plantiffe Crook George at another day argued to the contrary and he answered three points First it hath been agreed that the lease is void upon a false consideration imployed viz. the mis-recital Secondly admit that it is not void for that yet here part of the express consideration is not performed Thirdly the lease made to Hitchmore was in Iudgement of Law conditional and the condition not being performed makes an avoydance of the lease To the first point it seemeth that this false recital doth not avoid the Patent yet I agree the cases and Books which have been cited out of 9. H. 6. fo 27. and 29. E. 3. Grants 58 for in these Books it appears that the King is deceived both in point of suggestion and in point of interest but our case is not upon a false suggestion which doth prejudice the King in interest and in our case the King expresseth another thing to be the Consideration of his grant and the suggestion is not the consideration and therefore there is a great diversity and to warrant this to be a material diversitie he vouched the Rule of the case in 21. E. 4. fo 49. in Sir Thomas Wrothes case in Plowden for in 21. E. 4. it is agreed that the mis-recital that it was the Kings free Chappel is not material for the King is not deceived in point of interest and although that the book 3. H. 7. fo 6. is that if the King relase to a Prior a Corody because that the Priory was of the Kings foundation whereas it was of another mans foundation and therefore the release should be void because of the falsitie although that it be a falsitie in the consideration and so more strong then in our case yet in the said case it was adjudged to be a good release as appears in Plowden 331. put in the case of Mines and so is 3. H. 7. fo 7. and that this is not Law see Altonwoods case Cook lib. 1. accordingly and as to the book 15. E. 3. there cited he did agree unto it for if the King hath the title to present and he presenteth one not according to this title this presentation is void see Greens case in the Kings Bench 44. Eliz. accordingly and now reported by the Lord Cook lib. 6. fo 29.8 H. 7. fo 3. if the King grant the Mannor of D. of the value of 10. l. and this is of the value of 20. the King is deceived in the matter of value by the Information of the party and therefore the grant is void which was agreed in point of judgement in the Kings Bench 2. lac between Mason and Chambers but there it was adjudged that if the King will grant to A. the Mannor of D. which Mannor is of the value of 10. l. yearly whereas it is worth 20. l. yet the Grant is good because the words which Mannor is worth c. are words but of the Kings recital and in our case here is but one express Consideration and therefore the recital is not material see 37. H. 8. Brook Patents 100. that book maketh a quaere if a false consideration doth not avoid a Patent aswell as false suggestion but
the book upon which I do principally relie is a point resolved in the principal case of Altonwood Cook lib. 1. fo 45. or 43. where the King recites that he had made a lease to A. and B. and that whereas they had surrendred the Patent of the said lease he in consideration of the said surrender makes a new lease to A. and B. here although that in fact the demise supposed in the recital to be made to A. and B. was void and so the King was deceived in the matter of recital yet in respect that he made the surrender of the Patent to be the sole consideration of his grant the falsitie of his recital is not material for the Iudges ought to take it to be a Motive to the King in his Grant which he did not express to be a Motive especially if he express another Motive and so in our case also it should be greatly mischievous to Hitchmore if this falsitie of the recital should prejudice him for by intendment it is not in his power to inform the King of this lease which was made by Burwel to Wilkinson because he is a stranger unto it and also the lease is not upon Record and therefore Hitchmore is not bound to take notice of it see temps H. 8. Brook Action upon the case c. and also the lease here made by Burwel to Wilkinson is to have continuance but for 8. years after the time of the commencement of the new lease made to Hitchmore and so the King then shall have it liable to his rent newly reserved and so in these circumstances our case differs in matter of prejudice from Barwicks case Cook lib. 5. for there the Kings Lessee made divers under Lessees for all his Term and after he himself by fraud accepted a new lease of all rendring rent which new lease was in consideration expresly of a surrender of the first demise and of all the estate c. and this lease was there void and so the diversitie appears also in 18. Eliz. Dyer 352. where the deceipt to the Queen was in point of express consideration and yet the Lord Dyer said that in that case the grant was not void and then much more in our case but admitting that the lease should not be good notwithstanding this false recital yet it hath been objected that the consideration is not performed according to the Kings intention for the words of the lease are know yee now aswel for a fine of 30 l. as for that that Hitchmore had assumed to repair the Mills at his costs and charges c. and that here the said Hitchmore had not assumed by Record so that the King may have any remedy against him for his not repairing and that the contract is no assurance it seems to me that the words for that that he assumed and the express Covenant was sufficient to satisfie the intent of the Consideration for the words are the words of the King and of the Patentee also in judgement of Law and therefore Pasch 7. Iac the Lord Evers and Stricklands case was adjudged the Lord Evers had made a lease by Patent in which these words were contained viz. and the aforesaid Lessee shall repair the aforesaid Tenement and that after the reversion was granted to the Lord Evers and it was adjudged that the Lord Evers should have a Covenant against the Lessee and this was in the Kings Bench Pasch 7. Iac. and so here for that he had assumed upon himself it is an accord sufficient to testifie his promise whereupon the King may have remedy to compel a reparation to be made and although that the words are not personally spoken by the Lessee yet he shall be bound to perform them as it is in 38. E. 3. fo 8. if one takes benefit by a lease which he never sealed unto yet he shall be bound to a nomine penae therein contained and besides here is an express Covenant and therefore c. Thirdly it hath been objected that the estate is conditional by these words he hath assumed to repaire which condition is not performed and so the lease made to Hitchmore void and 38. H. 6.34 and 35. hath been vouched in proofe which book I do agree for there the King had no other remedy to have his intent performed and also the words there are ad intentionem doth not make the estate conditional and he vouched Brook condition 96. and 43. E. 3.34 and Perkins 144. that if the Queen give land and that the Donee should not Amortize that makes not the estate conditional for the Amortizing and so if a man make a feofment to A. that he should pay 10. l. and that R. may enter for non-payment yet this maketh not a Condition the reason is because the first words leaves it to the libertie of the feoffee and the words after shall not be construed to make it conditional but I agreed the case put in Sir Thomas Wrothes case in Plowden Pro eo quod relaxabit that this makes a condition if it be not performed because it is of a thing futurely to be done or Executory and the King had no other remedy also in our case the circumstances manifest that the Kings intent was not to make a conditional estate upon this lease for he accepted an express Covenant for the requiring and he vouched the Lord Cromwels case in Cook lib. 2. fo 72. and he said that if here the lease had been made to Hitchmore in respect he had agreed to increase his rent and further had a clause of distress for the rent it shall not be intended that the King in such case purposed to make the lease conditional if the increase be not paid because he had provided himselfe a distress wherein although that the King had no more remedy then by the Law he should have had without these words yet the words manifest his intent to have no other remedy but the distresse see 7. E. 6. fo 79. and 3. E. 6. Dyer Non licebit alienare makes no condition in the case of the King without the words subpaena foris facturae and he vouched 4. Ma. Dyer 138. the Countesse of Surreyes case and also 18. Eliz. Dyer 348. which as he said was one Greens case where it was adjudged that if the King provide himself of another remedy the words by reason of any implications shall never be construed to be conditionall and so was the opinion of Manwood and Harper in Wellock and Hamonds case cited in Barrastons case Cook lib. 3. and 31 E. 1. Voucher 141. A man made a Feoffement with warranty against all people rendring rent and further willed that if the Feoffee could not enjoy the land that he should pay no rent here the words subsequent take away the force of a recovery in value which the warranty otherwise would have given and so here the King had appointed the remedy which he intended to have and therefore it shall not
convicted of the intrusion and Moil said that he ought to shew matter sufficient whereupon he upon the intrusion aforesaid ought to be convicted so that a thing is demanded of us to give out judgement in which is not in question before us and therefore no judgement at all may be given here wherefore it is not needful for us to dispute other matters in the case and as to the questions in Law which were argued by George Crook and others Tanfield chief Baron nor Altham spoke not at all because they might come before them again to be adjudged upon a better office but Bromley and Snig Barons spoke to the matters in Law and their opinions were as follow and upon the plea of Moil the case was this that the Tenant pleaded protestando that the Priory of Bister was not founded by the name of the Priory of Saint Mary and Saint Egbert of Bister as the inquisition supposeth for plea he saith that one Thomas Banbury Prior of the Church of Saint Mary and Saint Egbert of Bister infeoffed him of the Mannor of Caversfield by the name of the Moity of his Mannor of Caversfield as also by the name of all his lands and Tenements in Caversfield and that the said feofment was made by the name of the Prior of Saint Egbert of Bister and that it was known aswel by the name of Saint Egbert as Saint Mary and that the Mannor of Caversfield was well known by the name of the Moity of the Mannor of Caversfield and that the Prior had no other land in Caversfield and shewed also that there is another in Caversfield which is called Langstons Mannor the which heretofore was the Priors and allotted as a Moitie of a Mannor in the same Mannor of Caversfields and those and other circumstances he used in his plea to the intent to shew that all the land of the Prior shall pass to him and he shewed that this Mannor sold to him was known by the name of Langstons Mannor Bromley Baron the Corporation is mis-named in the Grant because it is a thing material viz. the omission of the word Saint Mary for the name of assent in a body politick is as the name of Baptisme in a body natural and the name of Baptisme cannot be missnamed as it appears 3. H. 6. and 1. H. 7 if Iohn by the name of Thomas make an Obligation this shall not binde him if he doth not admit it and therefore it shall not conclude the King see the 11. Eliz. Dyer 279. where in some cases the estate shall pass by livery and seisin by what name soever it be made but a Corporation cannot pass an estate from them but by Charter and it may be conceived that the founder intended two things the one was Religion or more properly superstition the other was that it may remain to posterity as a Monument of the piety of his Ancestors and then if the name should be altered the remembrance would also decay and therefore what name soever is first imposed ought alwayes to be observed and that the omission of Saint is material and he vouched Eaton Colledge case 3. and 4. Ma. Dyer and 35. H. 6.31 the case of the foundation of Saint Peter and Paul c. but he agreed the case in 11. Eliz. Dyer 278. that omission of the word undivided is not prejudicial because no material variance Secondly it seemed that all the Priors Mannor of Caversfied passed by this grant for by 20. H. 6. and 22. H. 6. it appears that a feofment of 20. Acres by the name of a Mannor is good and 6. and 7. E. 6. Dyer if a man grant his Mannor in S. containing 10. Acres yet if it contain 20. Acres it is good and the word Omnia greatly inforceth the case as it seemeth wherefore c. Snig Baron said that the mis-naming is a material variance which avoids the grant also it seemeth that Omnia alia shall not be intended to refer to more then was granted by the other words except there were other lands besides the Mannor and therefore he thought that only a Moity of the Priors Mannor passed super totam materiam Sir Henry Browns case before HObert Attorney general it seems to me that the plea is not good for divers causes see the beginning before fol. he said that first every issuable plea ought to express a place but if the issue be triable by the Record or witnesses a place is not necessary 11. H. 7. fo 1. if there be no place there is no plea and therefore if it be beyond the Sea it is no plea. Secondly in our case there is no place alledged from whence the venue should come to trie the entrie in this case to be of all the premises for it is to trie the entrie but in one particular parcel but I agree as it hath been said of the other part if the entry had been alledged to be in the premises then the venue shall come from all the premises for here the plea of the entrie pleaded by the Defendant is double and yet it is good because of necessitie it cannot be otherwise intended in this case but I cannot plead in this case that I have not entred into two Closes parcel of the premises for that is Negative preignans as is in 9. H. 6. fo 44. in debt upon a bond where the Defendant was bound to require a house the Defendant said that A. by the command of the Plantiffe disturbed him the Plantiffe shall not be admitted to replie that A. did not disturb him by his command but by protestation that A. did not disturb him for plea that the Plantiffe did not command him c. 6. H. 6. fo 9. in a writ of entrie the Tenant pleads that the demandant confirmed after the last continuance the demandant shall not say that he did not confirm after the last continuance 5. E. 3. fo 1. in a per quae servitia of the grant to the husband and wife the Defendant said that the wife released while she was sole the other cannot replie that she did not release when she was sole but ought to deny the deed and so in our case if you will say by protestation that the place where the entrie is supposed is not parcel c. for plea that you have not entred after the last continuance then the issue ought to be joyned if we please or not and this shall not have any reference to the premises but only to the two Closes and then the venue shall come from the two Closes wherefore c. also by this plea so uncertain the Plantiffe is prejudiced for admit that in this case Hawkins the Defendant had re-entred before the day of nisi prius this had made our writ good again as appears by 26. H. 8. fo 10. and 36. H 6. and 8. H. 7. and then if here the Defendant will say that the Plaintiff had entred before the issue now it shall not be
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.
Heir except that judgement be given against the Ancestor and for that see 40. E. 3. Executors 74. and 41. Ass pl. 15. and 15. Eliz Dyer 322. And also if a Recusant had been convicted upon the Sat. of 23. Eliz. and dyed before judgement cleerely this forfeiture shall never be charged upon the Heir for the words are that a Recusant shall forfeit 20. l. a moneth and if he doe not pay it then appoints the recovery by Bill Plaint or Information and this ought to be alwaies in the life of the party then the Stat. of 28. Eliz. maketh not a new debt or Forfeiture but gives a penalty for the non-payment of that which was a debt within 23. Eliz. and that the intent of the Stat. of 28. Eli. was but such this is proved by the Title of the Act. viz. for the more speedy and due execution c. 2. It is proved by the first words of the Act for the avoiding of all delaies c. so that it appears that this Act is but as a penalty meerly Also he said that this Stat. of 28. Eliz. dispenceth with the conviction as to the penalty but doth not take away the Conviction also he said that conviction without Iudgement maketh not a Debt Also he who is convicted by proclamation and dieth is discharged Also he said that our Case hath been compared to a Debt upon an Obligation but this is not like for the Stat. stands not indefinite but hath reference to 23. for otherwise a Recusant may be doubly charged that is upon both the Statutes for there is no means to recover the Debt but by this Statute of 23. Eliz. See Sir Edward Walgraves case Dyer 231. Wentworth and others against Stanley WEntworth and his Wife and Rich and his Wife brought an Ejectione firmae against Stanley and shewed in their Declaration how one Edward Stanley was seised in Fee and infeoffed the Earl of Darby others to the use of himself for life the remainder to the use of the Plantiffs wife for 100. years and died and the Plantiffs entred and the Defendant ejected them c. and this Feofment was made in 40. Eliz. the Defendant saith that long before one Richard Stanley was sesed in Fee and gave it to the said Edward Stanley in tail and that he so seised made a Feefment to the uses as is alledged and died and the Plantiffs entred and the Defendant as issue of the Feoffor re-entred and so by his pretence his is remitted whereupon it was demurred and upon the opening this case the Barons were clear of opinion that the issue in tail is remitted and came paramount the lease and so the lease for years is gone also by the chief Baron and Baron Snig there needs no Traverse to be alledged by the Plantiffe because it was but of a fee gained in an instant by the feofment of a Tenant in tail and a fee-simple gained in an instant needeth not to be Traversed 5. H. 7. and 2. E. 4. wherefore the Court said that judgement ought to be given against the Plantiffs but yet at the desire of the some the Court gave day to the Councel on both parts to argue the case at which day came Heneag Finch for the Plantiffs and he argued to the matter in Law and therein he said that by the feofment of Tenant in tail the use to himself for life the remainder to his daughters for years without limiting the residue of the use that in this case the residue of the use shall be in the feoffes and not in the feoffor for by him there is a difference between a feofment by him who had a fee with limitation of an use as above and a feofment made by him who derives an estate out of a fee for when Tenant for life or Tenant in tail makes a feofment and limits an use for part of the estate as above there the residue of the issue shall be to the feoffee and he vouched Castle and Dods case adjudged in the Common Pleas 8. Iac. that if Tenant for life grant over his estate without limiting of an use it shall be to the use of the grantee more strong here in a tortious act as our case is but if Tenant in tail will levy a fine with limitation of uses as above there the residue of the use shall be to the use of the Conusor Secondly admit that the residue of the use in this case shall he to the feoffor yet he shall not be remitted to the use as it seemeth the words of the Statute of 27. H. 8. are that cestuy que use shall have like estate in the land as he had in the use and therefore it is clear that the first taker of the use shall not be remitted as it is resolved in Amy Townsends case in Plowden and although the words of the Statute mention not heirs or issues yet by the intent of the Statute they are in equal degree but the Books which are against this opinion are two viz. 33. H. 8. Dyer fo 51. but there it is not expresly said that the issue is remitted but 34. H. 8 Br. remitter 49. is expresly against me but the same year in Dyer fo 54. it is there made a quere and in Bevils case it is only said that the first taker of the use cannot be remitted but of my opinion was Baldwin and Shelley in 28. H. 8. Dyer 23 24. and in Sanages case and 29. H. 8. it is resolved that if a man hath land by Act of Parliament there shall be no remitter and so here wherefore c. and he said if Tenant in tail be the remainder in fee and Tenant in tail makes a feofment to the use of himself in tail the remainder to him in remainder in fee in this case he in the remainder in fee shall not be remitted for then the first taker should be remitted to the pleading it seemeth that the bar is not good and first the general demurrer here doth not confess the matter of fact no more then in Gawins case in 29. H. 8. fo 40. by Brown a demurrer upon account in an appeal is no confession of the fact and in 44. Eliz. in Crisp and Byrons case accordingly see Sir Henry Browns case before a good case to this purpose then as to the Bar it seems it is not sufficient for want of a Traverse of a seisin in fee alledged in the feoffor who was Edward Stanley for it is a rule that two affirmatives cannot be allowed in a Declaration and the Bar without Traverse of that which is mentioned in the Declaration is not good except there be cause of some impossibilitie or inconvenience but yet this is to be understood where the affirmatives are express and not by implication as in Moiles case if the Defendant in his Bar confess a fee determinable he needs not Traverse the fee alledged by the Plantiffe but in our case here is an allegation made by the
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
declares the use to be to himself for life and after to T. B. with power of revocation and to limit new uses and if he revoke and not declare then the use shall be to the use of himself for life and after to Henry Becket with power in that indenture also to revoke and limit new uses and that then the fine shall be to such new uses and no other and after 42. Eliz. by a third Indenture he revoked the second Indenture and declared the use of the fine to be to the use of himself for life and after to Hen. Becket in taile the remainder to I. B. c. R. B. dies and T. B. his brother and heire is found a Recusant and the lands seised and thereupon comes H. B. and shews the matter as above and upon that the Kings Atturney demurreth Bromley and Altham Barons that the Declaration of the uses made by the third Indenture was good and he having power by the first to declare new uses may declare them with power of Revocation for it is not meerly a power but conjoyned with an interest and therefore may be executed with a power of Revocation and then when he by the third Indenture revokes the former uses now it is as if new uses had been declared and then he may declare uses at any time after the Fine as it appears by 4. Mar. Dyer 136. and Coke lib. 9. Downhams case and in this case they did rely upon Diggs case Cooke lib. 1. where it is said that upon such a Power he can revoke but once for that part unlesse he had a new power of Revocation of Vses newly to be limited whereby it is implyed that if he had a new power to appoint new uses he may revoke them also Snig Baron to the contrary and said that he had not power to declare 3. severall uses by the first contract which ought to Authorise all the Declarations upon that Fine and then the Revocation by the third Indenture is good and the limitation void and then it shall be to the use of R. B. and his heirs and so by the death of R. B. it doth descend to T. B. the Recusant and also he said that such an Indenture to declare uses upon uses was never made and it would be mischievous to declare infinite uses upon uses Tanfield held that the uses in the second Indenture stand unrevoked and the new uses in the third Indenture are void and then H. B. ought to have the Land again out of the Kings hands The power in the second Indenture is that he may revoke and limit new uses and that the Fine shall be to those new uses and no others and then if there be a Revocation and no punctuall limitation he had not pursued his Authority for he ought to revoke and limit and he cannot doe the one without the other Also he said that after such Revocation and limitation the fine shall be to such new uses and no other then if there be no new uses well limited in the third Indenture the former uses shall stand void Nota it seemeth that if a man make a Feoffement and declare uses and reserve a power to revoke them without saying moe he cannot revoke them and limit new for the use of the Fine being once declared by the Indenture no other use can be averred or declared which is not warranted thereby for he cannot declare the fine to be to new uses when it was once declared before Cook lib. 2.76 That no other use can be averred then that in the conveyauce Cooke lib. 9 10 11. Although that the first uses are determined as if a man declare the use of a Fine to be to one and his Heires upon condition that he shall pay 40. l. c. or untill he do such an Act if the first use be determined the Fine cannot be otherwise declared to be to new uses And therefore it seemes that all the uses which shall rise out of the Fine ought to spring from the first Indenture which testifieth the certain intention of the parties in the leaving thereof and then in the Case above the second Indenture and the limitation of new uses thereby are well warranted by the first Indenture and in respect that this is not a naked power only I conceive that they may be upon condition or upon a power of Revocation to determine them But the power to limit the third uses by a third indenture after revocation of the second uses in the second indenture hath not any Warrant from the first Indenture and without such Warrant there can be no Declaration of such new uses which were not declared or authorised by the first Indenture which Note for it seems to be good Law FINIS AN EXACT TABLE of the Principall Matters contained in this BOOKE A. AN Action of false impriprisonment for taking his wife in execution she appearing as a Feme sole 48 52 An Action upon the Case for conspiring to outlaw a man in a wrong County 49 Amerciament for a By-law 55 An Action upon the Case where against a Servant for breach of trust much good matter 65 66 67 68 Amerciament where well levied by the Sheriff 74 Action by an Executor against a Sheriff in the debet and deâ—â—net where good 80 81 Authority in fact and authority in Law abused a difference 90 Action for these words against I. S. spoken of the Plaintifs wife she would have out her husbands throat and did attempt to doe it 98 C. Custome for Pirates goods if payable 15 Coppy hold surrendred to the use of a younger Sonne he can have no Action before admittance 20 Churchwardens if elected by Vestry-men where good and capable to purchase Lands 21 Conspiracy see Action Collector of a fifteenth leviable upon one Township 65 Commissioners of inquiry and their power 83 84 D. DEbt against the Sheriff for an escape a good Case 20 Distresse for a By-law upon the Kings Tenant he must bring his Action in the Exchequer 55 Devise to the wife until the issue accomplish 18. years endeth not by death of the issue before 56 57 Decree where execution thereof may be stayed 68 69 E. ERror a Writ directed to an inferiour Court ought to be executed without fee paid or tendered 16 Elegit the party who sued it dieth no scire facias for the Heire 16 Equity where releviable in the Exchequer 54 Estreats where they may be discharged for insufficiency in the Indictment or not mentioning the offence 55 Estoppell in the Kings case 65 Exception in a Grant 69 Escape a difference where caused by a rescous and where by the Sherif or Bailif 70 71 Executor see Action 80 81 Erroneous judgement given in the Kings Mannor reversed in the Exchequer by Petition 98 F. A Feoffement to the use of the Husband and Wife for their lives and after to the heirs of the body of the wife begotten by the Husband what estate 17 First fruits ought
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Daultons Countrey Justice corrected and enlarged by the Authors own hand before his death unto which is Annexed and Appendix or Abridgment of all the late Acts and Ordinances that relate to the Office of a Justice of Peace to the year 1655 by a Barrester learned in the Laws I. Ragguagli Di Parnasso or Advertisements from Parnassus in two Centuries with the Politick Touch-stone written Originally in Italian by that famous Roman Traiano Bocalini and now put into English by the Right Honourable Henry Earle of Monmoâ—th The History of Philosophy in eight parts containing those on whom the Attribute of Wise was conferred with the pictures of several Philosophers by Thomas Stanley Esq Historical Relations of the United Provinces of Flanders containing the Natural conditions of the people with the Forms of Government With the Compleat History of the VVars of Flanders written in italian by the Learned and Famous Cardinal Bentivoglio Englished by the Right Honourable Henry Earle of Monmouth the whole work Illustrated with many figures of the chief Personages mentioned in this History Politick Discourses written in Italian by Paolo Paruta a Noble Venetian Cavalier and Procurator of S. Mark Whereunto is added a short Soliloquy in which the Author briefly examins the whole course of his Life Rendred into English by the right Honourable Henry Earle of Monmouth Eadmeri Monachi Cantuariensis Historiae Novorum Sive Sui seculi res Gestas sub Guilielm I II Henric. I. Emisit Joannes Seldenus Seldeni Mare clausum seu de dominio maris Notes and Illustrations on Palaealbion The History of the Reign of King Henry the VII written by the Right Honourable Francis Lord Verulam Viscount S. Alban unto which is annexed a very useful Table Orlando Furioso in English Heroical verse Illustrated with Figures with an Addition of Epigrams by Sir John Harrington The Marrow of the French Tongue by John Woodroeph Gent. Pyrotechnia or the Art of Fire works with an addition of Logarithmes by John Babington Student in the Mathematicks Devotions upon certain Festivals Piously and Learnedly exprest in Meditations by that Accomplisht Gent. William Austen of Lincolnes Inn. Esq Books in Copartnership with W.L. and D.P. A Collection of Acts in the year 1648 1649 1650 1651. very useful especially for Justices of the Peace and other officers with several other Ordinances of like concernment by Henry Scobel Esq Clark of the Parliament and Clark of his Highnesse Council A Collection of all those Ordinances Proclamations Declarations c. which have been printed and published since the Government was established in his Highness the Lord Protector viz from Decemb. 16. 1653. unto Septemb. 3. 1654. with their several dates and Dependencies comprized in a lesser volume then before for the better use and benefit of the Reader printed by his Highness Printer