that all such recoveryes shall be void and shall be taken for fained recoveries and this may not be imagined a fained recovery where he in remainder in tail is vouched by him who is Tenant for life Jennings case Coo. 10. and such recovery as is there resolved is out of the Statute of the 14. Eliz. and is good by the Common Law and so in our case but admitting this to be within the Statute of the 11. of H. 7. yet the proviso of the same Statute had made that good for there is an express proviso that a recovery with the assent of the heir inheritable if this appear upon Record this shall not be within the Statute and in our case this is with the assent of the heir inheritable and also this appears to be of record and so the recovery is out of the danger of the Statute of the 11. H. 7. See Doctor and Student a book which was written but a litle time after the making of this Statute and Dyer 89. Vernons case and he said that the intent of the same Statute and of the proviso of the same Statute was to have issues and heirs and not termors who had only a future interest to falsifie recoveries and so he concluded that the recovery is out of the same Statute and that the proviso of the same Statute had made that good by the assent of the heir but admitting this should be against him that this recovery shall be within the Statute yet the lessee in our case shall not falsifie nor take advantage of the forfeiture by force of the same Statute but it hath been objected by Harvy that the wife in this case had only an estate for life or Tenant in tail after possibility of issue extinct and he answered that the resolution in Beamounts case Coo. 119. is contrary for it is there expresly agreed that she was Tenant in tail after the fine leavied by the issue and so was it also resolved in Pophams case 9. Eliz. but there it was doubted whether she was Tenant in tail within the 32. H. 8. who might make a lease but all agreed that she was Tenant in tail who may suffer a recovery and binde the remainder and then when the feme suffers such a recovery as in our case that recovery shall take away a term for years which was made by the issue in tail Mich. 20. Jac. C. P. in the life of his mother notwithstanding she was a joynteress within the 11. H. 7. also he said that this lease for years being made by Henry Mark-Williams the son who was heir to the estate in tail and also to the reversion in fee being made by deed indented rendring rent this shall be a lease which issued out of the estate in fee simple and not out of the estate tail and this shall be out of the estate tail by estoppel being by deed indented for an estate shall not enure partly by way of interest and this lease to begin after the death of the feme he may not take advantage of the forfeiture for though the words of the Statute are that all such recoveries shall be void yet this shall not be void without entry and he who will have benefit by this ought to be mabled to enter presently so soon as the recovery is suffered for as there ought to be a person in esse who shall take benefit of the same Statute as appears by Coo. 3. Lincoln Colledge case so there ought to be a present estate in esse at the time of the recovery for the words of the Statute are to whom the interest shall appertain but in our case the interest doth not appertain to the lessee who had only a future term and therefore he shall not take the benefit by any forfeiture within the Statute of 11. H. 7. and the rather in our case because there is a rent reserved also all this matter is found by special verdict what estate the son haâ— when he made the lease by indenture Dyer 244. Coo. 155. and Bredons case in Treports case lessee for life and he in reversion by indenture let for years this is no estoppel and it shall be said to be the lease of one and the confirmation of the other and here the lease shall be said to issue out of the reversion in fee and not out of the estate tail and he vouched a case adjudged 10. Jac. when Flemming was chief Iustice of the Kings Bench between Errington and Errington and the case was that a man conveyed land to the use of himself and his wife in tail the remainder to his right heirs and had issue a son and a daughter and he died and the son let for years to begin after the death of his Mother and he died without issue and the daughter leavied a fine and the wife who was Tenant in tail died and the question was whether this lease for years issued out of the estate tail by way of estoppel for then the Conusee shall not avoid this but it was adjudged this lease was drawn out of the reversion in fee and the Conusee of the daughter shall avoid that which is all one with our case but admit that this lease is good by estoppel out of the estate taile yet he shall not take benefit of the forfeiture within 11. H. 7. and this differs from Sir George Browns case for there the Conuser entered by vertue of a remainder and not by the estate tail which passed to him by estoppel and upon that he concluded that if this is an estate meerly by estoppel he shall not have benefit by that Pope and Reynolds before NOw the case between Pope and Reynolds which see before was moved again by Ashley for the Plantiff in the prohibition and the case was that he was owner of a Park and the Park had been time beyond memory replenished with deer till the 10th of Eliz. at which time that was disparked and that the owners had used before the disparking to pay a Buck in Summer and a Doe in winter in full satisfaction of all Tithes due to the Vicar and the Parson had libelled in the Ecclesiastical Court for Tithes in kinde and also traversed the prescription and it was found for the Plantiff in the prohibition and it had been moved in arrest of judgement that notwithstanding this prescription is found for the Plantiff yet he shall not have judgement for two causes First because gross Tithes belong to the Parson and not to the Vicar for the Vicaridge is derived out of the Parsonage to this he answered that for the most part every Vicaridge is derived out of the Parsonage but it is a meer non sequitur that this doth for the Vicarage and the Parsonage may have several patrons Fitzh 45. also a Vicarage may be time beyond memory as in our case 40. E. 3. 2. 7. and Fitz. juris utrum a Vicar may have a juris utrum and
objection is that though it is given to the King yet it is not extendable upon the Statute by the Commissioners for answer to that see Sir Christopher Hattons case 13. Eliz. cap. 4. upon the Statute of H. 8. which saith if a man be indebted to the King all his lands and Tenements shall be extended for this and it was ruled that an advowson was extendible for the debts of the King and more is given to the King by the Statute of the third of Iaco. then was by the 28. Eliz. for by the 28. of Eliz. the King may not seise the land but upon default of payment of 20. l. by the month but by the Statute of the third Iaco. he may seise presently and no election is given to the party secondly by the Statute 28. Eliz. the seisure of the King was only in the nature of distress for the payment of money but by the Statute of 3. Iac. the King had election to seise to satisfie himself and he may refuse to be satisfied at his pleasure and so the Statute which gives this to the Vniversity doth not take away the title of the King and upon that he concluded and prayed judgement for the Plantiffs Harris Serjeant to the contrary the Statute of 3. Iaco. is the only subject of the doubt and the first branch disables the recusant to present secondly it makes the present action void thirdly after conviction the Vniversity shall present and this in verity is that upon which the doubt is founded and upon that branch he conceived that the King had concluded himself to present to the church of the recusant for he being party himself to that act of Parliament he had dismissed himself of all right and Fortescue in laudibus legum Angliae non sunt ad voluntatem principis sed ad voluntatem totius Regni id est the Statutes of England are not at the will and pleasure of the King but at the will of the whole Kingdome Doctor and Stud. agreed and 14. H. 8. Fo. 7. E. 6. Mounson and the case of Alton woods if the saving of an act of Parliament be repugnant it is void and so upon those cases he inferred that the King being party to every act of Parliament he is bound by that and had dispossessed himself of the advowson by the Statute of the 3. of Iaco. which had given that to the Vniversity and had abrogated the power of the King to seise the advowson by vertue of the act of 28. of Eliz. for otherwise this Statute which gives that to the Vniversity shall bee meerly void and Statutes which are repugnant to former lawes take them away and do not confirme them and though the Statute of the 3. of Iaco. is in the affirmative yet that hath taken away the force of the Statute of the 28. Eliz. but it may be objected that before the recusant is convict the King had but a possibility and then by the Statute of the 3. Iac. the King had not dismissed himself of that which in judgement of the law is but a meer possibility and by consequence because he had nothing at the time of the making of the Statute but a possibility he had not given that over by the same Statute to the Vniversity to this he answered that the King may well give a possibility and a future thing as 9. H. 6. 62. 24. E. 3. 24. 30. E. Eliz. Treshams case and so he concluded because that this is given to the Vniversity by act of Parliament the King being party he had dismissed himself and the 3. Iaco. repeals 28. Eliz. as to that purpose and so he prayed judgement upon the whole matter for the Defendants And it was said by Hobert chief Iustice that this is indeed a case of great weight and importance and the Court agreed that the Statute of the 3. Iacobi gave only a power to the Vniversity of Oxford and not an interest but day was given over to argue this again the next Term. Sir George Savil against Thornton SIr George Savil declared that he was seised in fee and in gross of such a Church and that he presented I. S. his Clark who died and that he presented another and was disturbed by Thornton the incumbent the Defendant pleaded that a long time before the Plantiff had any thing in that the Pryor of D. was seised of the advowson and he being seised such a day granted the next avoydance to one Golding and that the advowson and the Priory came to the hands of H. 8. by the Statute of 31. H. 8. by force of which H. 8. was seised and afterwards the church became void and the executor of Golding who was grantee of the next avoidance presented his Clark who was admitted accordingly and afterwards he died that H. 8. died seised of the advowson which discended to E. 6. and so to Queen Mary and from her to Queen Eliz. who was seised in the right of the Crown and she being so seised granted the next avoidance to one Buckley her Clark who was admitted instituted and inducted after which Queen Eliz. died and the advowson discended to King Iames and in the 7th year of his raign the Church became void and he presented the Defendant the Plantiff by way of protestation said that Queen Mary was never seised nor died seised and by protestation that Queen Eliz. was never seised so that this might discend to King Iames and for plea said that well and true it is that H. 8. was seised and died seised so that this discended to E. 6. and that E. 6. such a year of his raigne granted that to Wyat and his wife in fee who granted that to the Plantiff and that Queen Eliz. presented L. only absque hoc that E. 6. died seised upon that it was demurred in law and he shewed the cause of his demurrer first because the protestations which he had taken in his replication are not good secondly the traverse is not good And it was argued for the Defendant by Bawtry Serjeant that the replication is not good because he had taken that by protestation which is traversable see the principal case of Gresbrook and Fox and see the 22. H. 6. and then for the traverse he held that to be naught First because he had traversed that which was but a mean conveyance Secondly he had traversed that which he had confessed and avoided and thirdly he had not traversed that which he ought not to have traversed and for the first it is put regularly in our books that a mean conveyance shall not be traversed and the descent here from E. 6. is but a mean conveyance and the substance is the presentation of Queen Eliz. and that ought to be traversed 17. H. 7. 2. the Prior of Tower Hills case there it said if in Assise the Tenant plead that the Plantiff was seised who infeoffed one B. who infeoffed C. who enfeoffed the Tenant that it is no
plea for the Plantiff to say that he was seised till the Defendant disseised him absque hoc that C. enfeoffed him and for that reason he ought to traverse the feofment made by B. for the other was but a mean conveyance see Dyer 107. in Trespass the Defendant conveyed to the donee by 5. or 6. discents by dying seised of the estate taile in every of them the Plantiff confessed the intaile and conveyed to him by feofment made by the heir of the donee which was a discontinuance and took traverse to the dying seised of the same feoffor and ruled to bee evil for he ought to traverse the most antient discent 43. H. 3. 7. Secondly it is evil because he had confessed the seisin of E. 6. and the grant by the same King to Wyat and so had confessed and avoyded the seisin of the same King and then the Law will not suppose that E. 6. purchased that again and for that the traverse of his dying seised is evil when he had sufficiently confessed and avoided that before as Dyer 336. in Vernons case a discent was pleaded to the heire from his ancestor the other party said that the ancestor devised that to him absque hoc that this discended to him as son and heire and ruled to be evil for a traverse needs not when he had confessed and avoyded that before Vide 14. H. 8. Sir William Meerings case 26. H. 8. 4. by Fithzherbert but Brook in the abridgement of the same case said that if the traverse is evil then he had waved the plea before and all was evil 7. E. 4. by Littleton for hereby the representation of Queen Eliz. she had gained the inheritance to the Crown and then the traverse being evil he had waved the former plea which was good without traverse and this seisin in the Crown is not answered but by way of argument as here 14. H 6. 17. he ought to traverse absque hoc that he died in his homage 20. E. 4. 5. 35. H. 6. 32. Serjeant Iones to the contrary and as to that which hath been said that the presentment is alleaged to be in jure coronae and the confessing the presentment is a plea by way of argument to which he answered that the record is not so but the seisin of the advowson is alleadged by discent to Elizabeth Queen by force of which she was seised in jure coronae and Iones argued that the traverse is good for every plea in barre ought either to be traversed and denied or confessed and avoided and here that ought to be traversed Dyer 208. 312. in avowry for a rent charge and seisin was alleadged in the grantor of the land in fee and the Plantiff said he was seised in taile he ought to traverse that he was seised in fee and a good traverse Hill 2. Iac. in C. B. Rot. 1921. Edwards against D. it was pleaded that such a man was seised in fee of a rent charge and the other confessed that he was seised in fee and that a long time before he enfeoffed one I. S. there he ought to traverse that he was seised at the time of the grant see the new book of Entryes Tavener and Gooches case in a Qu. Impedit And a note by the Lord Cooke also he said that after the grant there may be an usurpation and so the dying seised in the case of an advowson in gross ought to be traversed â—e 21. E. 4. 1. 20. E. 4. 14. and as to that which hath been said against the protestations he answered it ought to be traversed and for that the rest ought to be taken by protestation and in some cases the conveyance is traversable see Cromwels and Andrews case And so he concluded and prayed judgement for the Plantiff Note that he said that it was adjudged in that Court 2. Iac. in the case of the Bishop of Winchester that two usurpations gaine the advowson from the King And the reason was because the King by an usurpation may gaine an advowson in him out of a Common person and if the King Vsurpe and the right patron present he is remitted Hobert by such usurpation the possession is gained from the King but not the right and note that upon the argument in the principal case by Bawtry and Iones it was ruled by Hobert Warberton and Hutton that if the Defendant do not shew better cause by such a day judgement shall be given against him and Hutton said that he had studied the case and found no doubt but that the traverse is good Winch was absent in the Chancery M. 19. Iac. C. P. IT was moved for a prohibition by Harris Serjeant to the Court of Audience because that the Plantiff was sued there for saying to one thou art a Common Quean and a base Quean and Harris said that a prohibition had been granted in this Court for saying to one that she was a piperly Queen and it was the case of Man against Hucksler and Finch said though the words are not actionable in our Law they are punishable in the spiritual Court for the word Quean in their Law implies as much as whore but Hobert said that this word Quean is not a word of any certain sense and is to all intents and purposes and individuum Vagum and so in certain see more after Note that it was said by Justice Warberton that it was adjudged in the case of one Ablaine of Lincolns Inne that if a man made a lease for years rendering rent and the lessee or a stranger promise upon good consideration to pay the rent that in this case no action upon the case will lye for it is a rent and is a real thing and Hutton Justice being only present agreed this was upon the motion of Finch Serjeant Mic. 43. Eliz. in the Kings Bench in an action upon the case he declared how he let certain land to the Defendant for years in consideration of which the Defendant promised to pay him for the farm aforesaid 20. l. and Hitcham moved that the action will not lye because it appears to be for a rent for which an action of debt lyes but by Gaudy Fenner and Clench it is not a rent but a summe in gross and for that reason because he promised to pay that in the consideration of a lease cleerly an action upon the case lyes but Sir John Walter replyed that a writ of error was brought of this case of Simcocks in the exchequer chamber and the matter in law was assigned for error and it was ruled that no action upon the case will lye for Walmsley said this was a rent for of necessity there ought to be supposed a commutation between the lessor and lessee and that the lessor demanded of the lessee how much he would give for that and then he answered 20. l. this made an entire contract and for that reason an action of debt lyes and not an action upon the case and Savil and
who hath an interest and see for that Coo. 3. Lincoln Colledge case and Dyer 148. Thirdly he held that though it should be so that lessee for years may not enter by force of the Statute of the 11. H. 7. yet he may falsifie a recovery by the Statute of the 21. H. 8. which enables lessee for years to falsifie as well as lessee for life and it appears by the verdict that the sole intent of this recovery was to defeat the lease for years for this was suffered within 6. moneths after the death of Henry Mark-Williams the son and also the recovery was to the very same uses which they were before and therefore the lessee may falsifie the recovery it is true in Capels case the lessee of him in remainder may not falsifie a recovery suffered by Tenant in tail though it was suffered of purpose to defeat the lease for years but in our case the lease for years doth not enure by vertue of the estate tail for that is bound by the fine but this issues out of the reversion in fee and for that reason the lessee shall falsifie this recovery in an ejectione firme or in an avowry and he cited Kings case Hill 37. Eliz. B. R. Rot. 293. Tenant in tail infeoffed his son and after he disseâ—sed him and afterward leavied a fine of that with Proclamations the son entered upon the Conusee and made a feofment and the Proclamations passed and the feoffee of the son let for years and then the father and the son died and the issue in tail brought a formedon and recovered and it was agreed that lessee for years may falsifie this recovery and he said that he had seen a Note in Iustice Manwoods Study that it was agreed in his Circuit that lessee for years to begin at a day to come may falsifie a recovery and so be concluded his argument Hendon Serjeant to the contrary and he divided the case in three points First when Tenant in tail had issue a son and a daughter or two sons and the eldest son in the life of his father who is Tenant in tail levies a fine and dies without issue whether this shall binde the youngest son and he thought that it should not and yet he agreed that an estate tail may be barred by a fine though he who leauied the fine was not seised at the time of the estate tail and this by the very words of the Statute of the 32. H. 8. see the case of fines Coo. 3 and Grants case vouched Lampets case and so is the case of Hunt and King 37. Eliz. cited by my brother Harvey and so he agreed cleerly if the son who leavies the fine survives the father who was Tenant in tail that then in this case this binds the estate tail for ever and the reason is upon the very words of the Statute of 32. H. 8. or any was intailed to the Ancestor of the issue in tail and in this case when the issue doth survive the Ancestor and dies this shall binde the issue because it was intailed to him who leavied the fine who was his Ancestor for he may not make any Conveyance to the estate tail except he make mention of him who leavied the fine because that he survived the father who was Tenant in tail but when he who leavies the fine dies in the life of his father viz. the eldest son then the youngest son may convey an estate taile to him without making mention of his eldest brother and this appears by the 46. E. 3. 9. 4. H. 6. 10. 11. H. 7. 6. see the case of Buckner Coo. 8. from which cases he inferred that if the youngest brother may have an action at the Common Law without making mention of his eldest brother then such a construction shall be made of this word Ancestor in the Statute of 32. H. 8. that it shall be taken for such an Ancestor by whom the issue in tail claimes and for no other Ancestor and for this he put the case if land be given to a man and to his heirs females begotten of his body and he had issue a son and a daughter and the son leavied a fine and died this shall barre the estate tail for the cause aforesaid and for authorities in this kinde he cited the reports of Dallison of Eliz. printed at the end of Ashles Tables in Stamfords case in the end of the same case where the very difference is agreed Mich. 29. Jac. C. P. where the eldest son dies in the life of the father and where not and Hobert demanded of him by what warrant those reports of Dallison came in print And then Hendon cited the opinion of some of the judges in the case of Zouch and Banfield and see Coo. 3. the case of fines according to this difference and he said that Sir George Browns case will warrant that in the very letter of it for there it is said that no issue inheritable by force of the tail may enter after the fine by which he inferred that if he is such an issue that is not inheritable he is out of the Statute and so he concluded the first point that the fine being leavied by the eldest son in the life of his Mother that shall not barre the estate tail Secondly he argued that as this case is the feme is not within the Statute of the 11 H. 7. because that at the time when she suffered a recovery she was seised of an estate in general tail by force of the remainder which was limitted to her and her husband and to the heirs of their two bodies ingendred which took effect in the feme at the time of the death of the husband and this being an estate in tail of the purchase of the huband which took effect in remainder this may not be a joynture within the Statute of of the 27. H. 8. and then if she be not a joynteress within that Statute though this estate was of the purchase and of the acquisition of her husband yet this is out of the danger of the Statute of the 11. H. 7. for the words are any woman who had any estate in dower or in tail joynt with her husband of the purchase and of the acquisition of the husband which words of the purchase of the husband had relation to Tenant in dower or to a woman who was a joyntress and was not the intent of the Statute to make such a remainder to be within the danger of the Statute when the husband himself in his life may dock this by a recovery and therefore it is not within the Statute And as to the Third point he argued that admitting that she was a joyntress within the Statute of the 27. H. 8. yet when the feme suffers a recovery with the assent of him in remainder in fee this recovery is out of the body of the Statute of 11. H. 7. any which shall discontinue or release with warranty and
years then this is void by resignation and so is the case of Packhurst that when he resignes during the years of the Commendam the Patron shall have that and not the King and so also my opinion is clear that if he had died within the 6. years limitted by the Commendam that the King shall not have that for then it is void by death and not by the assumption of the Bishoprick which book proves directly that a Commendam may be aswel for years as for life but yet I do not hold that upon those temporary Commendams if the Bishop continued Parson during the years and made no Act to impeach that then is a void cause S. the assumption of the Bishoprick and then when that is determined the supension is determined and it is void by the original cause S. by the assumption of the Bishoprick and this Commendam doth not turn the second or first Patron to any prejudice for the incumbent is still in by the presentation of the Patron and the determination of the Commendam is not any cause of the avoidance of the benefice but this is quasi non causa which is causa stolida as the Logicians do term it but in this case the assumption is the cause of the Cession and it is like to the case of 25. Ed. 3. 47. where the King brought a quare Impedit against the Arch-Bishop of York for a Prebendary vide the case and ruled in that case that the confirmation of the King had not taken away his title to present and the reason was because the confirmation had not filled the Church but continued that full which was full before and here this temporarie Commendam may not restrain the King to present afterwards for this is not a presentation and therefore may not take away the title of the King and here the Plantiff hath not well expressed it for he hath not shewed in this Court that the presentation of the King was lawful neither that Chardon held that by vertue of the Commendam for all the 6. years but only that the Church became void by the Laws of England and that is not sufficient and then if all before were for the Plantiff yet the question is whether he hath lost his turn and I think that he hath omnis argumentatio est à notoribus and the first is better known then the second and the second may not be the first and there when the devise gave him the first it is idle to say that he shall have the second for that departs from the meaning of the words and in every grant the law implies quantum in se est and no man may say that the devisor did intend to warrant that from antient Titles and so the Lord Hobert concluded his argument and said his opinion was that the Plantiff shall be barred and judgement was commanded to be entred accordingly Mich. 22. Jac. C.P. Michaelmas Term in the two and twentieth year of King James in the Common Pleas. DAvenport moved for the amendment of a Record where a recovery was suffered of lands in Sutton in the Countie of York and the indenture of bargain and sale was by the right name and the indenture of uses by the right name but the writ of entrie was of the Mannor of Sulton and upon the examination of the parties to be recovery that the recovery was to no other uses then is expressed and mentioned in the said indenture this was to be amended Sheis against Sir Francis Glover SHeis brought an action upon the case against Sir Francis Glover and shewed for the ground of his action that where one Harcourt was bound to the Plantiff in a Recognizance c. upon which the Plantiff took forth an elegit and the Defendant being the Sheriff of the Countie took an inquisition upon that upon which it was extended but he refused to deliver this to the Plantiff but yet he returned that he had delivered that and upon that he brought his Action and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Hendon and the reason he shewed was because he laid his action in an improper Countie for though the return was in Middlesex where the Action was brought yet because the land lies in Oxfordshire where the seisin ought to be delivered the place is Local and for that the Action ought to be brought there and now Serjeant Breamston argued that the Action was well brought in Middlesex for this being but a personal thing he may bring that in either of the Counties as 14. Ed. 4. 13. Ed. 4. 19. expresly in the point and to the second objection that had been made that an Averment may not be against the return of the Sheriff to that Breamston answered that in an other Action an Averment may be against the return of the Sheriff though not in the same Action as 5. Ed. 4. but it was agreed to have a new trial by the preservation of the Iustices for otherwise it seemed the opinion of the Court was that the Plantiff shall have judgement upon the reasons urged by Serjeant Breamston Mary Baker against Robert Baker an Infant in Dower MAry Baker brought a writ of Dower against Robert Baker an Infant who did appear by his Gardian and he pleaded that his father who was husband of the demandant was seised of a Messuage and of land in Socage and devised that to the demandant for her joynture in full satisfaction of all Dower and he shewed that after the death of his father the demandant did enter into the said Messuage and land and was seised of that by vertue of the devise and to that the demandant did replie by protestation that he did not devise and for plea confessed the seisin of the husband and her own entrie but she further shewed that the Infant who was then Tenant was but of the age of 14. years and that she entred as Gardian in Socage to the Infant and disagreed to accept of that by vertue of the devise and traversed the entire and the agreement and it was said by the Court that his bar is good though it had been more pregnant to have alledged that she entred virtute legationis praedictae and so was seised and after it was said that the Replication was very good without the traverse for this was not expresly set down but that was but meerly the consequence of the plea which in veritie was not traversable Hickman against Sir William Fish HIckman had judgement for 600. l. and 10. l. damages against Sir William Fish and he acknowledged satisfaction for 410. l. of the said debt and damages and after there was an agreement between them that if Sir William did not pay the residue by such a day that then it should be lawful for Hickman to take out execution against the said Fish without suing of any scire facias though it was after
and to be forth comming and for that reason he ought to appear within a convenient time when the Plantiff demands him which Hobert also granted but he said that there needs not any demand if the course of the Kings Bench is contrary and Iones Iustice said that he had a judgement given in the Kings Bench that the bail is forfeit after default is assigned in the principal and Winch said that the course of the Kings Bench is that default ought to be assigned in the principal upon the return of the Capias before the Bail shall be charged and it was agreed if that course be there it shall be observed here also but it was said by Hutton that there ought to be a scire facias awarded and returned against the Bail before the Bail is forfeit and it was adjourned until another time that they might see presidents Cyprian Web against Barlow CYprian Web brought a replevin against Barlow and the Defendant avowed as lessee for life of the Mannor of Froston to which the Plantiff is a Copiholder of a Copihold of the same Mannor and that 15. Iaco. in mense May he girdled and cut a tree in the middle upon his Copihold and that the steward Anno Supradicto charged the homage to finde this by which he had forfeit his Copihold and the Defendant being Lord of the Mannor distrained his beasts damage feasant and the Plantiff said that the custome of the Mannor is that every Copiholder may lap and girdle absque hoc that he cut the tree and upon that the Defendant demurred and Attoe argued for the Plantiff in the replevin that this is no cause to forfeit the Coppihold for though the steward did charge the homage to finde that yet it doth not appear that he gave any proof of that And secondly the forfeiture is alledged to be in May and the Court was holden in April before which was impossible which the Court granted as to that last point and for that the Plantiff had judgement East 21. Jac. C. P. Thorntons case in a Prohibition THornton prayed a prohibition to the Arches and the case was such one had a recovery in a quare Impedit and he had a writ to the Bishop against Thornton upon which A. his Clark was admitted c. and after the recoverer died and Thornton supposing his heir to be in the ward of the King and that the said A took another benefice without sufficient qualification by which the Church was void by Cession and he attained a presentation of the King and he was admitted c. by the Lord keeper being within the Diocess of Lincoln and A. sued him in the spiritual Court and Thornton prayed a Prohibition and it was granted per Totam Curiam for without question there ought nothing to be questioned in the spiritual Court after the induction of the partie and whether it is a Cession or no doth properly belong to the Common Law and Iones cited a judgement in Williams case according note that by the constitution of Otho and Othobon that institution and induction is voidable in the spiritual Court if no Prohibition be prayed Sheldon against Bret. IN a quare Impedit between one Sheldon and Bret Hutton said that we in Chancery have adjudged that the grant of the next avoydance for money when the Parson was sick in his bed ready to die is Simony for the Statute is if the contract be made directly or indirectly by any way or means Fleming against Pitman FLeming brought an action of Covenant against Pitman and he declared upon an indenture and that the Defendant Covenanted to serve him honestly and faithfully as an apprentice in the mystery of Drapery for seven years and that he had defrauded him of his goods c. the Defendant pleaded the Statute of the 5. of Eliz. that none shall be an apprentice to any of the most worthy trades among which Drapery is one except his father have freehold to the value of 40. s. per annum to be certified to the place in which he is to be apprentice by three of the Iustices of the peace of the same County and this certificate to be inrolled in the Town book and he pleaded that no such certificate was made and he pleaded the branch of the Statute of the 5. of Eliz. which made every retainer contrary to the form of this Statute to be void and the Plantiff replied that he had 40. s. per annum and the Defendant rejoyned that he had not 40. s. per annum upon that the Plantiff demurred because the Defendant said in his rejoynder that he had not 40. s. per annum and in his plea he pleaded no such certificate and the Iustices c. Hutton Hobert and Iones said that the retainer is good though there is not any such certificate or inrolment if re vera the father had 40. s. per annum for the intent of the Statute is that sufficient mens sons should be apprentises which is observed if the father had 40. s. per annum and Winch cites Englefields case upon the Statut 28. Eliz. cap. 3. that every one which claims by a conveyance from a Traitor shall bring in his conveyance to the Chequâ—e to be inrolled and yet if it be brought in though it be not inrolled the intention of the Statute is fulfilled and Iones cited a case in Banco Regis 18. Eliz. Robins case upon the Statute of 21. H. 8. of Pluralities where it was adjudged that a dispensation is good though it is not inrolled and yet there are as strong words of inrolment as may be And after in Trinity term 21. Iac. the same case was argued again by Attoe for the Plantiff and by Hitcham for the Defendant and per totam Curiam at that time it was agreed cleerly that this is a departure but for the second point whether the pleading of the certificate were good or no that was the doubt and Iustice Hutton thought there ought to be a certificate precede the indenture or otherwise that shall be void but Hobert as to that would not give his opinion but he seemed as Hutton and Hobert chief Iustice took exception to the laying of the action for he thought the Statute of the 5. of Eliz. shall not be intended so strong against infants as to make Collateral covenants to be good but Attoe moved that this covenant is incident to the retainer to serve truly and faithfully and yet if it were a Collateral covenant yet he had lost the advantage of that by his pleading as in debt upon an obligation against an infant if he plead non est factum he shall not have advantage of his Infancy to which Hobert also agreed but he said this is not like to our case for here it appears by the Count of the Plantiff that the Infant was but of the age of 15. years at the time of the retainer of which the Court ought to take notice and here the
Plantiff in Hammond which indenture rehearseth that King Henry the eight was seised of this land in his demeasne as of fee in the right of his Crown from him conveyed that to Ed. 6. who in the 7. year of his Raign by his letters patents bearing date at Westminster he granted that to one Fitz Williams to Hilton in fee as by his letters patents may appear they being so seised by indenture which bore date c bargained and sold that to Henry Hoskins and to Proud also recited that Proud releaseth to the said Hoskins all his right as by the said release may appear and conveyed that to Iohn by discent and so the said Iohn being seised he and his son Peter made this conveyance to the Plantiff upon a good consideration in which they did covenant with the Plantiff in this manner and the said Iohn and Peter for them and there heirs do Covenant and grant to and with the Plantiff c. that they the said Peter and Iohn Hoskins according to the true meanâ—â—ing of the said indenture were seised of a good estate in fee simple and that the said Iohn and Peter or one of them have good Authoritie to sell that according to the intent of the said indenture and that there was no reversion or remainder in the King by any Act or Acts thing or things done by him or them and the Plantiff laid the breach that neither Iohn nor Peter had a lawful power to â—â—ll the Defendant pleaded that Iohn had a good power to sell that according to the intent of the said indenture notwithstanding any Act or Acts made by him or his faâ—her or by any claiming under them and upon that the Plantiff demurred and the case was now argued by the Court and Iones Iustice began and said that his opinion was that the Plantiff shall be barred the case being upon construction of covenants and the sole question is whether they are several covenants or only one covenant and I held that they are all one covenant and those words for any Act or Acts do relate to the two other precedent sentences and so it is all but one covenant though this stand upon several parts for if these words were placed in the fore-front there had been no question but that this had been but one covenant and this made no difference when it is set before and when it is set after and the repeating of that had been toutalogie for if I covenant I will build a house at Dale Sale and a vale of Brick here Brick shall refer to them all because it is tied in one entire sentence and covenant and so if I covenant with you that I will goe with you to Canterbury to Salisbury and Coventrie here the word goes relates to all 3. as in the case of Sir Henry Finch the rent was granted out of the Mannor of Eastwel and not of the Messuage lands and Tenements lying and being in the Parish of Eastwel or else where in the same Countie belonging thereto and resolved that land which is not parcel of the Mannor is not charged with the rent because it is all but one sentence and one grant and cited the case of Althams case and Hickmots case where special words will qualifie general words where they are all in one sentence and so I conceive they are but one covenant Cook 8. 9. especially in the intents of the parties and upon the intents of all the parties of the deed for when a deed is doubtful in construction the meaning must be gathered from all the parties of that but yet that is tied with two cautions that it be not against any thing expressed by the said indenture but only in case where it is doubtful Cook 2. 5. so Cheineys case and Baldewins case a habendum will destroy an implied premisses Cook 4. but not an expressed and so in Nokes case an express particular covenant qualifies the generalty of the implyed covenant like to the case which was 32. Eliz. in the Court of Wards between Carter and Ringstead Cook 8. where Carter was seised of lands in Odiham and of the Mannor of Stoy and there covenanted that he would Levie a fine to his son of all his lands in Odiham in tail and for the Mannor of Stoyes that should be to the use of his wife now these subsequent words drew that out of the tail according to the intent of the parties and so in our case and I also take an exception to the form of the declartion for he conveyes that to Fitz Williams and to Proud and Hoskins by the name of all his lands and Tenements which were in the tenure of Anne Parker and did not aver that these lands for which the Covenant was made were in her hands and for that it is not good and for these reasons I conceive the Plantiff shall be barred The argument of Hutton Justice HUtton to the contrary I hold that they are 3. several Covenants and yet I agree the cases afore cited and the reason is they are all included in one sentence for it is the care of the Purchasor that he had an owner of the land before he purchase for that which is the ground of assurances that he is seised in fee and hereafter that the Covents that this is free from incumberances made by him and that he had good title to alien which strikes at the very root of assurances and my first reason is because here are several parties and they covenant that one of them is seised of a good estate and that they or one of them had power to alien that for it may not stand with the intents of the indentures to buy of him who had no title and might not sell and also the last Covenant is meerly in the negative that they have made no Act or Acts by which the reversion shall be in the King and that is all one as if the word Covenant had been added in every clause of the sentence and Covenants in law may be qualified by express Covenants but if a man made a lease for years upon condition to pay 20. l. in this case an entrie by the law is implyed for default of payment but yet if it added that if it be behinde he may enter and retain till he is satisfied of the 20. l. now in this case this had taken away the implyed Covenant and condition but every express Covenant must be taken most beneficially for the Covenantee and in Nokes case it is said that an express Covenant controuls an implied one but he may use either of them at his pleasure and election and I grant Henry Finches case to be good law for there is not any clause or sentence till after the Alibie but yet in Dyer 207. they are distinct sentences and shall receive several constructions and so here the matter being several they shall receive divers constructions and he Covenanted that
and died by whose death the Church became void the which was the first and the next avoydance after the grant and Harcourt presented Cardon and that the said Arthur Basset so being seised in fee 18. Octobris 17. Eliz. by his will in writing devised to Iohn Basset his son the first and next avoydance of the Church aforesaid which first and next avoydance hapned after the death of the said Arthur Basset and that the said Iohn Basset was possessed of the said next avoydance and the said Chardon being incumbent 29. of September 37. Eliz. he was elected Bishop of Down in Ireland and he being so Elect the Queen by her letters 37. of her Raign considering the smalness of the said Bishoprick that it was not able to maintain him in his episcopal dignitie ex gratia sua speciali concessit Lycensavit et potestatem dedit to the said Chardon Bishop elect that he with the said Bishoprick the rectory of Tedbome in comendum ad huc recepire et fructus de c. in usus suos convertere disponere et applicare valeat et possit habendum that in Comendam for 6. years and within the 6. years he was consecrated and after the Term of the 6. years the Church became void per legis Anglie and that the Queen by her prerogative presented one Bee who was admitted instituted and inducted and the Plantiff conveyed from Iohn Basset his title by his grant of the next avoydance and shewed that the said Church became void by the death of Gee and that the vacation by the death of Gee is the next avoydance after the death of Arthur Basset by reason whereof the Plantiff presented and was disturbed and upon his decla ration Edwards the patron demurred and the Bishop claimed nothing but as ordinary and Manering pleaded and confessed the seisin of Arthur Basset and the grant to Manwood and the presentation by Harcourt of Chardon and the devise to Iohn Basset but he shewed that after the death of Arthur Basset the Acre to which the advowson is appendant descended to Thomas Basset as c. and he being so seised the Church became void by the death of Chardon who had the next avoydance after the death of Arthur Basset and that this remained void by 2. years after his death by which the Queen presented by Lapse the said Gee who was admitted c. and Thomas Basset conveyed that to Edwards and that became void by the death of Gee and that he presented the said Mannering c. absque hoc quod praedicta vacatio Ecclesiae praedictae post Mortem de Gee was the first and next avoydance after the death of Arthur Basset as the Plantiff had alleadged and upon this bar the Plantiff demurred and it was argued by the Councel of both sides on several dayes and in Michaelmas Term ensuing it was argued by the Court but because that Harvey was newly made Iustice he did not argue the case but Iustice Hutton began The argument of Justice Hutton ANd Iustice Hutton after a recital of the case said that his opinion was that the Plantiff should be barred and in the first place it is to be considered whether the King had any title at all to present by the Creation of Chardon to be Bishop Secondly admit that he had title whether he had dispensed with that and by his dispensation he had satisfied his prerogative Thirdly admit that the King had title and that this was not satisfied with the Commendam whether the grantee had lost his turn and as to the first point it ought to be agreed that when a parson is made a Bishop that he is discharged of the Church by the Common Law and so is the 45. Edw. 3. 5. and Dyer 159. petit Broo. 116. and this is an avoydance by Cession and for any thing that I see in our books the King had not any title to present except that he himself was patâ—on but because that did not happen fully in question here I will not deliver any opinion but I will say what our antient books do lay 41. Edw. 35. adjudged that the King shall not present to a prebendary where the prebend was made Bishop and the tithe which the King had to present was by reason that the temporalities of the Bishoprick of which he was prebend was in his hands and see the 7. H. 4. 25. a good case 11. H. 4. 37. Dyer 228. and for Brooks presentation 61. that is but the report of the Chancellor who had that in presentation but our Common Law doth not warrant any such thing and then for the second point whether the King had dispenced with his prerogative and in the first place we are to know that these Commendams were at the first but to see the cure served and by the opinion of Pollard the ordinary is to see the cure served though that be charged with such rents that none would have it and for that Commendams were at the first good but now if the King had title then that began per the consecration otherwise he shall never have it and so is 41. Edw. 3. 5. if consecration doth not give that he shall never have it and hereby his grant to hold that in Commendam he had dispenced with this prerogative and if this had been granted to him for his life none will deny but that he had dispenced with his prerogative and shall never take advantage of that again afterwards and no more in this case for he is incumbent to all intents and purposes for Fitz N B. 36. he may have a Spoliation and yet in this case he is parson and Bishop and now that the King may dispence with that it is not to be doubted and I will compare that with the like cases A. 6. Eliz. Dyer 252. where the King granted the Custody of the land and heir of his Tenant if he died his heir being within age and this grant was to Cantrel and it was agreed to be good and Wardship is as Royal an antient perrogative as any appertains to the Crown and 3. H. 6. title grant 61. the King may grant the temporalities of the Bishoprick before it is void which in my opinion is Cosen German to our case out of which book I conclude the King may dispence and by the dispensation he is full parson and this is for his life for the King may not make him incumbent except it be for life like to the case of Dyer fo 52. where the patron and the ordinary made a confirmation of a lease for part of the time which was made by the parson and agreed that this shall stretch to the whole time and no better case may be put then the case of Packhurst in Dyer 22. 8. where Packhurst was incumbent of the Church of Cleave and was made Bishop of Norwich but before he was created Bishop he had a dispensation from the Arch-Bishop to retain that in Commendam for 3.
years notwithstanding his advancement and he resigned during the 3. years and issue there taken upon the resignation and this case proves all the partes of our case first that the King may dispence and that by his dispensation he is compleat person to resign and if he do resigne during the years the King shall not have the prerogative to present again for that was satisfied with the dispensation and also when the King came to his prerogative by subjects means he ought to take that as it falls for otherwise he loses that quite vide Bastervils case Coo. 7. and another reason is if it be not satisfied then the King shall have another which is mischievous and this being a new case such president is not to have more favour then the necessitie of the Law will require and so my opinion is that it is all one as if it had for life and there is a good case 9. Ed. 3. 20. where the King had 2. presentments vide the case but it was upon another reason but the case of 21. H. 7. 8. Frowike where the grantee of the next avoydance had judgement to recover and the incumbent resigned so that it is the second presentment yet the Plantiff shall have the effect of his judgement and he had a writ to the Bishop quere the application for I did not well heare that but in our case if the prerogative of the King was not satisfied yet it ought to appear that when he presented Gee he had no title but that was an usurpation and if the King was not satisfied then the Plantiff shall not have judgement for then Gee was an usurper and upon that declaration the Plantiff shall be barred but now for the last point admit that the King was satisfied of his prerogative by his presentation of Gee whether the Plantiff had lost his course I think he had in the first place the words of the devise are the first the next avoydance which shall hap after the death of Athur Basset now it hath been objected that the King had the first by his prerogative and therefore he shall have the second I think in this case Brook presentation 52. is a strong case where a presentation was granted to one and after to another when the first is void and ruled that the second grantee shall not have the second and so Dyer 35. it ought to be taken according to the words for otherwise he shall not have any for modus et Conventio uniunt Legem and the case of quare Impedit 152. proves something to this purpose for a man had 4. advowsons and granted the next which should hap of them to I. S. and he died and the heir assigned the wife for her Dower one Mannor to which the advowson was appendant which first became void and ruled that the Grantee shall not have that against the feme and then it was moved by Thorpe that he shall have the second but Shard said certainly never which proves that if the turn of the Grantee was taken from him by the indowment of the feme he had lost that for ever the like case is the 15. H. 7. 7. 14. H. 7. 22. moved by Mordant that the Grantee of the third shall have the fourth when the wife is indowed of the third which case is brought to prove a case which without question is not law and that is that the King being Gardian of the Grantee of the next avoydance and he grant that in this case the heir shall have that at his full age which without question is now law for by the same reason his course may be the 20. but there are two rules from this which seem to cross this opinion one rule is that the words of the grantor shall be taken most strong against himself and the other that the Grantor shall not be received to avoid his own grant as it is said in Davenports case Coo. 8. but yet these rules are to be intended where the words are compleat for as the case is the 13. Ed. 3. Grant 65. that where the husband and his wife are joynt Tenants for life and he in reversion grant the lands only which the husband held in this case nothing passeth for the reversion was expectant upon a lease which the husband and wife held nay I will cite one case where a man by his own Act shall avoid his own grant in a quare Impedit Elmes against Taylor where a man was seised of the Mannor to which the advowson was appendant and he granted the third next avoydance and after against his own grant he usurped and it was adjudged that by this usurpation he had gained the advowson to be appendant to his Mannor again and that the Grantee had lost his course and so the case in Dyer 283. where the Church was void and the patron granted the next avoidance tunc vacant to another and this pro hac unica vice tantum and there resolved that the grant was not good and that it should not extend to another and so in our case it shall not extend to a second another reason is if the King had a prerogative he is bound and every derivative estate under him for he shall not be in better case then the grantee for he was bound by the law of the land and for that it is equitie and it is Iustice that the estate of the grantee should be bound and so in this case like to the case in Plowden 207. and Dyer 231. where by Act of Parliament the possessions of an Abbot were bound now if afterwards the Abbot made a lease for years or granted the next avoydance and then after they came to the King he shall avoid the grant for the interest of the Grantor was bound by Act of Parliament and see the case of the universitie of Oxford Coo. 10. where a man before he was a recusant convict he granted the next avoydance and after he became a recusant convict and then the Church became void now the grantee shall not present for his interest was bound by Act of Parliament and so he must take it and here it behoves him to take that as it is bound with the prerogative of the King and so upon all the matter he hath lost his title and he concluded that the Plantiff shall be barred The argument of Justice Winch. WInch Iustice of the same opinion but because his argument was much to the purpose of that with Hutton and the Lord Hobert therefore I will not Report that verbatim and Winch said I will speak to the last point which was moved by my brother Hutton and I hold that where he had the first granted to him now he shall have none at all for it is punctually expressed that he shall have the first and that shall not extend to the next which may be granted but I grant if two coparceners had an advowson and the eldest presented and
then she granted the next avoydance that in this case the grantee shall have the next which may be granted and the reason is because she may not dispose of the estate of another but if in this case the course be evict by title Paramount of the King then the grantee had lost that and he cited the case of Brook presentation 52. and Gilbie and Iuxtons case which was directly adjudged with the case of Brook in which he was in councel as he said and he said that the book of 15. H. 7. is not to be relied upon for Law and he cited quare Impedit 154. and said that the King in this case shall not have the presentation against the devisee for he had a title setled before the title of the King for though the prerogative of the King is more antient yet his title is subsequent and he cited divers cases where the title of the subject was before the title of the Kâ—ng and so the case of the 15. H. 7. was adjudged that he may not out the grantee of the next avoydance and I think there is much difference between a patron of inheritance and he who had only a turn to present for there if the prerogative shall hold place he had lost all the fruite of his title and he said our antient books are that the King shall not have any prerogative except he himself be patron but admit he had then he had dispenced with that for the Commendam may not be for years and the Commendam did not make any alteration but only a dispensation and the case in Dyer shews that he remained parson to resign and shews plainly that the King had lost it true it is there are some few precedents of these Commendams but there are none in our books and for the assumption of the Bishoprick it is all one with England for the 17. Ed. the third the Bishopricks are donatives and Fitz N. B. 169. 14. Ed. 3. 26. Plowden 44. and the books are the Common Law that we have and he shewed some precedents of these Commendams to the Court and shewed the case of the Earl of Kildare where the incumbent had a Church with cure in England and an other in Ireland and void for the Pluralitie and 16. Eliz. Thorn-Borrow Parsonage was void when the incumbent was made Bishop of Ireland and Bancrofts case who was Deau in Ireland and then was made Bishop of London and it waâ— holden his Deanry was void and 4. Iac. Dod was made Bishop of N. and the Chancellor here in the right of the King presented to the living and if a beneficed man do take a Bishoprick by the very taking of that his benefice is void by the consecration clearly by the Lawes of the land for they are two incompatible benefices and may not by any means stand together and so upon the whole matter in regard that by the assumption of the Bishoprick the benefice was void by the very consecration and if the King had any title this was satisfied by his Licence and dispensation to hold that in Commendam and so he held the Plantiff shall be barred The argument of the Lord chief Justice Hobert HObert chief Iustice of the same opinion and after a Brief Recital of the case said that his opinion was that the Plantiff shall be barred upon the most of his case S. admitting that Clardon did live above the 6. years so that the King did present Gee in point of prerogative yet the Plantiff had not title upon the most of his matter much less upon the viciousness of his pleading and first we are to deal with the avoidance of benefices with their compatibles and then with the Commendams of the King and first I hold if a beneficed man take a Bishoprick he hath clearly lost his benefice by his consecration by the lawes of the Land for they are two incompatible benefices and they mâ—y not stand together but in this we must distinguish in this manner first a benefice may be void by subordination as where one is made Bishop of the same Diocess in which his Parsonage is this is the very reason of Dyer 158. and 8. Ed. 3. 9. where a Prebend of the same Church is made a Dean but otherwise if he be made Dean of another Church and so my opinion is if a Bishop be made an Arch-Bishop of the same province where his Bishoprick is nay if there is Parson and Vicar of the same Parish with cure and the Vicar accept the Parsonage the Vicaridge is void for the Vicaridge was derived out of the Parsonage our books say it was a long time before they would give the Vicar any estate and the reason was because here was a Corporation erected without Lawful Authoritie chiefly by the ordinary with the consent of the Patron and this case hath not his fellow in the Law and it is de novo that it is made for ab nitio non suit sic and that also had inabled him to bring an action against the Parson and also it gave to him a freehold but the chief reason was he eased the Parson in his dutie and therefore good reason he should have part in the profit but in our case the reason of the subordination doth fail for he is Bishop of another Diocess S. in Ireland and therefore we ought to search for another reason and without doubt the Law is all one in that also and this is ratione eminentiae by reason of the dignitie of a Bishop and so is Packhursts case in Dyer ruled without any exception and the case of the 44. Ed. 3. where one who had been prebend in England was made Bishop in Ireland and ruled the prebendary to be void and because the office of a Bishop and a Parson do differ in the eminencie therefore a Bishop may not be a Parson and now for the other point whether the King had a prerogative or no I spare to speak because there is no necessitie to draw that into question for the Plantiff had admitted that and the Defendant had not denied it but for the Commendam I do not make question but the King may make one and so may the Arch Bishop but the power of the Arch-Bishop is potestas limitata but the King had a double power one by antitient title before any claim made by the Pope and the other by the Statute but now for the other point I think it is a Commendam for years and first I hold if the case had been that he should hold that in Commendam with his Bishoprick in pristino Statu that had taken away the power of the King to present afterwards and the reason is plain for the prerogative is to present to that which is void by the assumption of the Bishoprick which doth never hap for by the Commendam he had that still as before but here the Commendam is for years and if he do also resign during the
shall be given for the Plantiff and yet they agreed he might have demurred upon the declaration and that was good and also they held if that had been generally saepius requisitus c. it had not been good because the request is parcel of the promise and therefore ought to be precisely set down to be after the promise and the payment of the 52. l. but here they said for the time it is very well expressed by this word postea and there is not any defect but only in the place for postea implies that this was after the promise and payment of the money and Hobert said that all the points of the declaration quoad the substance are good only it fails in the place where the request was made and this varied by the issue and all the rest is sufficiently alledged to ascertain the Court that the promise is broken and Hutton said that in his opinion such a request ought to be given in evidence but Harvey said that though the request is parcel of the promise and that ought to be sufficiently alledged and so it was here so that the Court may give judgement of that and he said that postea requisitus had relation to the time of the promise and the payment of the money and judgement was given accordingly for the Plantiff in the said case Sir John Davis priviledge denied NOte that this day being the 26. of November Davis who was the Kings first and chief Serjeant came to the Bar and he offered to move the Court and they refused to heare him because his course was gone in his absence and he claimed his priviledge that the Kings Serjeant might move at any time but Iustice Hutton answered that 20. years agoe when he was made Serjeant there was no such custome or priviledge except they moved for the King and so said Iustice Winch also and he said that though of late time such favour had been given to them yet that was ex gratia Curiae and this was an evil custome especially now when the King had five Serjeants and he used to have but two and so they told him they would not allow of any such priviledge or prerogative neither would they hear him upon any such account and they said perchance of favour they might hear him Austin against Beadle AUstin brought an ejectione firme of lands against Beadle and declared of a lease made at Haylesham and the Defendant pleaded that Haylesham praedict ubi tenementa jacent is within the five Ports where the writ of the King rans not and so he pleaded to the jurisdiction of the Court and the other replied that the Town of Haylesham was within the Countie of Sussex absque hoc that it was within the five Ports and upon that the Defendant demurred and it was argued by Finch that the traverse was not good and he said that he ought to have traversed absque hoc quod villa de Haylesham ubi tenementa jacent is within the five Ports for the veritie was that it was part in the five Ports and part in the Countie of Suffex and the land lies in that part which is in the five Ports and for that he may not take issue upon that traverse for then it will be found against him and so he said it was held 50. Ed. 3. 5. that the Plantiff in trespass there in his declaration and replication he distinguished the part and so the Plantiff ought here but it was answered by the Councel of the other side and resolved also by the Court that the traverse is good and that the Bar is naught and if the Plantiff may not traverse in other manner and that the Defendant in his Bar he ought to have made his distinction and every plea which goes to the jurisdiction of the Court shall be taken most strong against him who pleads that and the traverse here ought to be to the Town and not to ubi which was idle for the law said as much and we do not imagine any fractions of Towns and so I conclude the Plantiff ought to have judgement Ashley against Collins IN a case between Ashley and Collins it was agreed clearly by the Court that if an infant made an obligation and after he being sued upon that an Attorney without warrant suffers a judgement by non sum informatus that this was no cause to grant an audita querela and upon the opinion of the Court the audita querela was quasht for it was said he shall have a writ of error if he were within age and if he was not then he shall have his writ of disceit against the Attorney Anthony Gibson against Edward Ferrers ANthony Gibson brought an Action of debt of 1000. l. upon an obligation made the 11th of December 21. Iac. and the Defendant came and demanded Oyer of the condition and the condition recited that whereas there were differences between the said parties concerning some accompts now they had for the final determination of them they had put themselves upon the award and arbitrement of Gerrard de Malines to be made before the last day of December next if therefore the said Edward Ferrers his Executors c. shall and do for his and their parts perform stand to and keep the said Arbitrement of the said Gerrard de malines that then c. quibus lectis et auditis idem Edwardus dicit quod praedictus Antonius Actionem suam versus cum habere non debet because he said that the said Gerrard de malines did not make any Arbitrement and the other replied and shewed an Arbitrement which he did award to Gibson interested to be paid for money among divers other things and upon that the Defendant did demur in law and it was argued by Bridgman Serjeant for the Defendant that Arbitrement is void for it is for the payment of interest and I hold that Arbitrators who are judges indifferently chosen may not award interest to be paid for that is an unlawful thing for all the Statutes which have been made concerning usury have branded that to be unlawful and those differences which are submitted ought to be intended to be lawful differences and he cited a case in the Kings Bench where an action upon the case was brought upon a promise made upon consideration that if the Defendant will forbear the principal together with the interest that he will pay that at a certain day and it was adjudged that the action lies because there was no certain interest set down for he said if the certaintie of the interest had been set down the consideration had not been good and then if this thing be so unlawful that a man may not binde himself by his promise then á fortiori Arbitrators may not award that and for another reason it is void because that interest is awarded for the time after the submission was made and so I pray that the Plantiff may be barred Hendon contrary I hold the award