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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
argued where Walter of the inner Temple moved that the office was insufficient and he cited one Baylies case to be resolved here where an office found that A. died seised de quodam tenemento that office was not good because of the incertaintie for it may be a rent or a house but otherwise it would be if it were upon a special verdict after issue joyned as he said it was there agreed also he said that it was there agreed if an office findes that A. was seised of B. acre in see and died it is not good because it is not found that he died seised yet in pleading it is good because when the fee simple is shewed to be in a man it shall be intended to continue in him until the contrary appears also in Pasch 43. Eliz. Morton and Brigs Case an office found A. to be seised of certain lands in D. holden in capite c. it is not good without shewing the certaintie c. so if the office had found that he was seised of 100. acres in D. and that certain of them were holden c. this is not good without shewing which c. as it was there also agreed in 26. H. 8. the condition of an Obligation was that the Obligor should make a sufficient estate of B. acre in debt upon this obligation it is no good plea to say that he had made a sufficient conveyance c. without shewing in certain what it was Mich. 32. c 33. Eliz. between Ireland and Gold a man pleaded for title that A. was seised and by deed inrolled gave and granted such land c. this is no good pleading because no sufficient certainty therein also it is not good because there is no certain time shewed of the grant made and although that a grant by record is good as it is in 37. H. 6. yet in pleading he ought to shew the time of the making of it 20. H. 7. also it is specially required to have the time of the making of the grant to be found here because there were divers Acts of Resumption made to nullifie grants by H. 6. in some of the years of his raign and it may be that this grant was made within those times contained in the Acts of resumption and therefore c. Hutton Serjeant argued that the office finding quod concessit generally is good and sufficient without these words by sufficient conveyance and the Traverse may be generally non concessit modo et forma and by 40. Assise pla 24. it is sufficient to say that A. was seised in fee and committed a forfeiture 5. Ed. 4.10 accordingly also he said that it appears by 14. 15. H. 7. if an office findes that A. was seised in tail it is a good office but in pleading not good without shewing how also in Knights Case Cook lib. 5.56 it appears that an office is good enough to intitle the King if it have substance although the manner be not formal 3. H. 6. an office finding that A. died seised and findeth not of what estate and yet it is good to intitle the King Bacon Solicitor general contra and he said that they are in veigled by reason of this office for the partie grieved knoweth not where or how to Travers because it is not found by what conveyance H. 6. granted the reversion for if it be by letters Patents a man cannot plead to them nul tiel Record also a verdict upon an office is principally to inform the partie who may Traverse and not like a verdict upon issue joyned whereunto the partie hath no answer but is only to inform the Iudges who ought to Iudge Hobert Attorney generall contra yet he agreed that if a patent be pleaded a man cannot say against it nul tiel Record but he said that Lucies Case 14. H. 7. is a stronger case then ours where an office is holden good finding a man to be seised in tail and upon that book he relied much to prove the office to be good Bacon Solicitor said here is an incertaintie in the conveyance and also in the estate which is not in the 14th of H. 7. for there is an express finding of an estate and a dying seised thereof but here the finding is that he was seised prout lex postulat Harris Serjeant that the office is good and he vouched also Knights Case Cook lib. 5. vouched by Hutton and also the case of Alton-woods Cook lib. 1. that an office there was holden good although more uncertain then this office and here the office is only that H. 6. granted and shewed how and therefore c. Walter said that it appears by the argument of Keeble in the case 14. H. 7.26 where he argued that where the right of the estate is to be inquired there it ought to be certain in all circumstance but otherwise it is if the inquiry be only upon the possession for there if a sufficient possession be found it is good enough And Brian chief Iustice said the office was void in that case fo 27. and the Iudges in this case would be advised until the next Term and the next Term it was recited again by Nichols Serjeant for the Earl of Cumberland and by Bacon Solicitor for the the Countess of Dorset at which day the Iudges said that the question in the case is only this viz. if an office findes only that A. was seised of a particular estate and that the King granted the reversion c. without shewing how or other particular certainties and to that if such an office be good or not they said that it is not easie to determin for although it be good in the case of a common person yet it will be greatly mischievous to the King if by such offices his inheritance should be devested in respect no Traverse can be to such an office but yet they would not award the office to be void but advised the Attorney of the wards to grant a special premunire to the heir general who was the Countess of Dorset Salvo jure cujuslibet c. and so in an Action at the Common Law the Earl might trie his right and title and not upon the validitie of an office and so it was done The King against the Earl of Nottingham and others BEtween the King by English Bill and the Earl of Nottingham and others Defendants but concerned Sit Robert Dudley in interest and was as followeth viz. Sir Robert Dudley intending to travel beyond the Seas did by indenture inrolled the 10th of June for a valuable consideration expressed but none paid convey the Mannor of Killingworth amongst other lands to the Earl of Nottingham c. in see but the Barganees were not privy unto the Deed not till afterwards and in the Deed there was a proviso that upon the tender of an Angel of Gold all should be void and convenants on the part of the Barganees that they should make all such estates as
REPORTS in the Court of EXCHEQUER Beginning in the third and ending in the ninth year of the Raign of the late KING JAMES By the Honourable RICHARD LANE Late of the Middle Temple an eminent Professor of the Law sometime Atturney Generall to the late PRINCE CHARLES Being the first Collections in that Court hitherto extant Containing severall Cases of Informations upon Intrusion touching the Kings Prerogative Revenue and Government with divers Incident Resolutions of Publique Concernment in Points of LAW With two exact Alphabeticall Tables the one of the Names of the Cases the other of the Principall Matters contained in this Book LONDON Printed for W. Lee D. Pakeman and G. Bedell and are to be sold at their Shops in Fleetstreet 1657. AN ALPHABETICALL TABLE of the names of the Cases contained in this BOOKE A. AIrie against Alcock p. 33 Arden against Darcie p. 68 Sir Anthony Ashleys case p. 83 B. BRet against Johnson p. 1 Bates in an information p. 22 Bently and others against Leigh p. 71 Brown Sir Henry p. 81 86 Bromleys case p. 90 Brockenburies case p. 91 Beckets case touching recâ—sancy p. 91 Bents case p. 96 Beckets case p. 118 C. CAtesbies case p. 3â— Cumberland the Earles case p. 39 Calvert against Kitchin and Parkingson in Simony p. 71 100 Carew against Broughton p. 79 Clare Sir Henry p. 96 Clerke against Rutland p. 113 Chamberlains case p. 117 D. DEnnis against Drake p. 20 Dimoek Sir Edward in an information for intrusion p. 31 35 60 Doille against Jolliffe p. 48 52 E. EWer against Moile p. 83 Edwards case p. 98 F. FOrtescue see Isabell p. 91 G. GIbsons Case p. 90 Gooches Case p. 99 H. HUddlestone and Hills case p. 16 Halseyes Case of Recusancy p. 104 I. INformation See Page p. 19 Information See Page p. 21 Information see Bates p. 22 Information see Dimock p. 31 Jacksons Case p. 60 Isabell Fortescues case p. 91 K. THe King against the Earle of Nottingham and others p. 42 Kent and Kelway p. 70 L. LIttleton Sir John p. 56 Levison against Kirke p. 65 Leazure Sir Stephen p. 100 M. MAior of Lincolnshirs Case p. 16 Mary Reps against Babham p. 17 N. NOrton Sir Daniel p. 74 O. OVerburies Sir Thomas p. 55 P. PAges Case an information p. 19 Phillips against Evans p. 33 Q. QUeens Colledge in Oxfords Case p. 15 33 R. RIchards against Williams p. 18 S. SKelton against the Lady Airie p. 17 St. Saviours in South warke in an information p. 21 Shstabey against Walker and Bromley p. 49 Sweet and Beale p. 56 Sawyer against East p. 74 108 Smith and Jennings Case p. 97 Scot and his Wife against Hilliar p. 98 T. TRollops Case p. 51 V. VAuxs against Austin others p. 59 W. WIkes case p. 54 Worslin Mannings Case p. 58 Wentworth and others against Stanley p. 93 Wickham against Wood p. 113 Y. YOrke and Allein p. 20 ERRATA In page first l. 31. for Nay 1. Noy 37 fol. 32. Hill left out in the Margent untill 37. fol 37. in the margent Tâ—â—th for Trin. 111. for 101. MICHAELMAS 3 Jac. in the EXCHEQVER Bret against Johnson IN an information for the King by the Attorney General against Sir Robert Iohnson for entrie into a house and Close in Buckingham Town called the Parsonage Close in February 4. Iac. upon not guiltie pleaded a special verdict was found to this effect that Queen Elizabeth was seised in fee in right of her Crown of the late Prebends of Sutton Buckingham Horton and Hordley in the Countie of Buck whereof the place where c. is parcel and she 20 Februarie 11. Eliz. granted to Henry Seymor Lord Seymor the said Prebends for life rendring 11. s. 4. for rent and the Iurors say that these Letters Patents by the command of the said Lord Seymor were restored to be cancelled and he being seised pro ut lex postulat Queen Eliz. 21. Mar. 37. Eliz. reciting the former Patent Quas quidem litteras patentes et totum jus statum titulum terminum et interesse de et in praemissis praefatus dominus Seymor modo habens et gaudens surfum rediddit et restituit cancellandum to this intention nevertheless that we should make to him another patent which surrender we accepted of by these presents she by her patent under the great Seal aswell in consideration of the said surrender as for other causes and considerations demised and granted to the said Lord Seymor the said foure Prebends for his life the remainder to Anthony Wingfield for life the remainder to Robert Iohnson for life rendring 90 l. 3 s. 3. d. for rent and they found that there was not any actual surrender or cancellation of the said Letters Patents of 11. Eliz. but restitut ad cancellandum as before the making and acceptance of the second Patent of 37. Eliz. and they found that there was not any Vacat made upon the inrolment of the Patent of 11. Eliz. and they found that 10. April 37. Eliz. Anthony Wingfield and Iohnson granted to the Lord Seymor for 90. years to commence after his death or forfeiture of his estate if Wingfield or Iohnson or one of them should so long live and 20. April the same year the Lord Henry Seymor granted to Sir Robert Iohnson for 60. years to begin after the death of the said Seymor rendring 400. l. rent to him his Executors or assignes the Lord Seymor died 4. Iac. and Sir Robert Iohnson entred upon which entrie this information was brought nay that the Defendant is guiltie and he divided the case into two points First if there be any actual surrender of the patent of 11. Eliz. because there is not any record thereof and the King cannot take by bargain or contract if there be not a record of it as appears by 5. E. 4. and 7. E. 4.6 and Plowden in the Dutchy of Lancasters case for as it is there said it agrees with the Majestie of the King to have a record of things made by him Mich. 3. Jac. in the Exchequer or to him and if a grant is pleaded to be made to the King it is good to say quod non habetur tale Recordum and here is no record but a memorandum made upon it for otherwise leases made by Abbots before the dissolution shall be said to be of record because after the dissolution they were all put in the Tower amongst the records but questionless those leases are not of record because there is not any Memorandum made upon them also in the Lord Latimers case 12. H. 7. in Kelloway where Baron and feme seised in right of the feme in fee granted to the King this is not good if the deed be not inrolled for there they of the other side would have concluded the Tenant to say the contrary but that the deed was inrolled and so by way of admittance confess that a grant to the King is not good if the deed be not inrolled 3. Eliz.
and these words restituit Cancellandas are no new words but usually used in surrenders of Patents as it appears by 9. E. 4.7 and in Altonwoods case Cook lib. 1. and there the not entring of a Vacat doth not hurt for it was the fault of the Clark and Sir Maurice Barkleys case in 2. Eliz. 176. cited before doth not question it that the entring of a Vacat should be material but the question here is because he did not deliver them up to be cancelled in the Lord Darcies case Dyer 195. the jury did think that there was no surrender at all but the Book-doth not marrant but that there may be a surrender without a Vacat and he said that at this time the matter is depending for Saint Saviours in Southwark if it be a good surrender without a Vacat entred and no opinion as yet given in that case and where it hath been objected that there is no actual surrender until that the Queen hath agreed and 8. and 21. H. 7. cited that where a man pleads a surrender he must also plead an agreement yet because the agreement cannot appear by any Record that the partie can procure to be made of it it shall be good although there be no record made of that agreement yet in this case the Queen doth agree as appears by the words in the second Patent Quam quidem sursum redditionem acceptamus c. Secondly admitting there is no actual surrender in this case yet if when the Queen did recite the particular estate and that she had accepted the surrender thereof and in consideration of it she maketh a grant whether this second Patent shall be good and it seemeth that it shall and therefore it appeareth by 37. H. 6.18 that the taking of a second lease shall be a surrender of the former and in Corbets case 11. Eliz. Dyer 208. 4. Mar. Dyer 140. although the first lease be by deed indented and the second but by word and in Ives case Cook lib. 5.11 acceptance of a future lease is a surrender of a lease in possession and to that purpose is 21. H. 7.14 H. 8.15.31 Assises placito 26. and other Books and in 3. Eliz. Dyer 200. the King granted a house for years and after did grant to the Patentee the custody of the house with a fee and the Patentee accepted the fee and it is there doubtted it that shall be a surrender of the Term and the matter was Compounded but he said that he heard that the opinion of the Iudges was that the acceptance of the custodie and fee was a surrender of the Term by that I do infer that there shall be a surrender by implication aswell where the King is partie as where a common person only first if a surrender be effectual it is sufficient although it be not formal because it worketh as much profit to the King and the surrender in this case was at the same instant that the Queen did Seal the letters Patents for the estate passeth from the Queen without delivery and it appears that the intention of the Queen was not to have any actual possession of that by these words modo habens et gaudens but it hath been objected in as much as this surrender was at an instant that it should be void because that in instants the best shall be taken for the King yet it seemeth to me that it is good as in the case of 49. E. 3.5 a. a man deviseth Burgage land holden of the King and dieth without heir this devise is not good against the King because the devise taketh not effect until the instant of the devisors death and at that instant also doth the title of the King begin by death without heir and he cited Plowden 108 109. in Fusmerstons case for the exposition of these words not now in being within the Statute of Monasteries and if in that case issue had been taken whether it had been a surrender or not it should have been found to be a surrender because it is a surrender in the law as it was in Thetfores case in the Common Pleas p. 28. Eliz. Rot. 122. in wast Baron and Feme Donees in tail make a lease for life the husband dieth and the wife disagreeth to the lease and the issue was if the husband and wife did lease and it was found that they did not lease because now by her disagreement it is become in law not the lease of the wife Cook lib. 3. Butler and Bakers case accordingly fo 27. 28. but if the King be to sustain any loss by the consideration if that were false then shall it make the Patent void as it is in 9. H. 6. where the King was deceived in the value so 18. Eliz. Dyer 352. where there was a loss in esse but it is contrary where there grows no loss to the King as 26. 28. H. 8. of a thing passed because the King is not to have benefit of it the Lord Chandos case is not answered on the other side for there the King did intend to have the actual possession where in facto he had not yet because that was only a recital and Collection in the matter in law it doth no hurt so in the principal case and so if the King grant a Mannor although he hath but a reversion of it yet it shall pass without the word reversion 7. Eliz. Dyer 233. and the Kings Patent also shall be so construed that one part may stand with another viz. that the Lord Seymor now having the estate c. doth restore unto us c. the which we do accept c. as in Sir John Molins case 40. Eliz. Cook 6. Lord measne and Tenant the Tenant was attainted of Treason and the King did grant the laud tenendum de nobis c. suis noftris et aliis cap. dominis feodi illius per servitia inde debita et de jure consueta He shall in that case hold of the mesne as the Tenant held before for if he should hold of the King the words subsequent would be void and for that cause such a construction shall be made that all may stand together now for the third point admit that the surrender is not good yet it is aided by the Statute of 43. Eliz. cap. 1. which aides all grants and surrenders c. to or from the Queen the clauses for conveyances to the Queen are with restraint but for the conveyances of the Queen there are certain exceptions our case is within that part of the Statute which relates unto the 25th year of her Raign and our case is within the words of the Statute viz. surrenders and surrenders within the Statute are such as are surrenders to a common intent and therefore where the partie hath done that in him lieth but some thing is to the perfection of a surrender that is aided by the Statute also by this word assurance in the Statute a purchase
an actual surrender before made for the consideration but whereas it hath been objected of the other part that the word modo doth often signifie the time past and some instances according to Grammatical construction were given in proof thereof and thereupon they would infer that the Queen by these words modo habens did intend no other but lately having or injoying to that he gave a double answer to the first he said that there was no cause shewed or instance given That modo habens joyned together will signifie a time past though taken â—everally that may signifie so much which makes a plain difference betwixt those instances and this present case Secondly admitting in a Grammatical construction they did signifie as the other side would have it yet the judges ought to adjudge thereof according to the most natural sence of these words in Common understanding and that so it may be done he vouched one Talbots Case in 32 Eliz. in Banco Regis in which after the Iudges had conferred in the Court with divers learned Schollers touching the Grammatical construction of a word used in a Convey ance they afterwards notwithstanding did wave the Grammatical construction and adjudged the word to signifie in Law according to the Common received sense of the word and according to this he vouched 12. H. 8. where the word uterque received the like construction also he vouched the 20. Eliz. Dyer fol. 262. where it is admitted that the word modo is to be taken in the present Tense and to this purpose he also vouched Billings Case in 38. H. 6. and Bozuns Case Coo. lib. 4. and then he concluded that in asmuch as the special verdict had definitively found no consideration but generally for the consideration above exprest he held that the second Patent was good for a Patent cannot be void because there is no consideration to move the King to grant but a Patent may be void as is pretended for a false consideration which is not in this case and therefore c. Fourthly admitting that the consideration in this Case was for an actual surrender before made and that in this case no such actual surrender was before made yet he held that in this Case the second lease is good notwithstanding the false consideration for it appears by 37. H. 8. Brook title patents 100. that a Patent shall never be void for a false consideration but by reason of a false surmise it may but he confessed this difference was generally denied because a Patent shall be void by reason of a false consideration but he said that the differences were infinite also upon this ground for some take a difference where a consideration is real and where it is personal and they hold that a real consideration being false shall not avoid the grant but otherwise of a personal and so they take the Book of 37. H. 8. before cited to be good Law and upon this difference others also have taken a difference where the consideration is to come to the King himself and where it is to come to a stranger others also have taken a difference where the consideration is of a thing valuable and where it is not of value yet they take a difference where that is past and executed and where it is to come or Executorie but he said that although divers of these differences seemed to be good with great reasons and were backed with some Authorities yet he needed not to take advantage of any of them for the maintenance of this Case and for that he took this general difference for the maintenance of this Patent viz. that if the consideration be such which brings a benefit or commonditie to the King and this is false that this avoyds the grant but if it bring no commoditie to the King although it be false yet the grant is good and to prove this diversitie he cited Harris and Wings Case to be adjudged in Banco Regis and Barwicks Case Cook lib. 5. and Sir Hugh Cholmleys Case Cook lib. 2. to be adjudged accordingly of a false recital and he said although it be admitted that the consideration which the King intended to have was an actual surrender yet in asmuch as this cannot be intended a thing more to his advantage then a surrender in Law the which plainly appears to be in this case that the Patent is good and for that he held that the second lease shall not be avoided for such a falsitie and also he said that this Case is more strong of his side then any Case which may be cited in asmuch as the King had no discommoditie or loss by the falsitie of the consideration but in this Case also he should be at a loss if the second lease were not good for the second lease reserveth a greater rent to the King then was reserved by the first and therefore it is for his benefit that the Law should allow of the second lease to the intent it may make a surrender of the former lease for the Kings advantage and if the King granteth probis hominibus de O. rendring rent they are by this grant impliedly made a corporation for the benefit of the King to render him the rent whereas otherwise the grant would be void and so he took it in the principal case although the grant should be void by reason of the false consideration yet it should be good to this purpose for the Kings benefit and after Termino Mich. Anno Sexto Jacobi Regis this Case was argued again and Nicholas Serjeant for the Defendant said that the sole point of the Case is if the consideration of the lease made in 27. Eliz. be good or not and this is exprest to be Tam in consideratione sursum reddditionis praedict quam pro aliis Causiis et Considerationibus c. then it is to be considered if here be such a surrender as is meant to be within the intent of the Consideration of the Queen and he said that in this Case here was a good surrender in law clearly by the Book of 37. H. 6. for in all Cases where a Teimer for years accepts a lease of him in Reversion as here the Lord Seymor did then this is a surrender in Law of his first interest but the Earl of Salisbury Lord Treasurer said that this is not properly a surrender of this Antient Term but an extinguishment thereof to which the Lord chief Baron Tanfield agreed and Serjeant Nichols further said that the Consideration which moved the Queen to her grant was only the sufficient surrendring of the precedent estate of the Lord Seymor and not the restoring of the letters Patents and therefore although it be admitted that here was not a sufficient restoring of the letters Patents nor an actual surrender by this means yet here is an effectual surrender by the operation of Law and then this being the sole Consideration which moved the Queen to her grant the not sufficient restoring of
the letters Patents is not material for he said it seemed to him that in rei veritate the particular estate cannot be sufficiently surrendred by this bare giving up of the letters Patents by the Tenant for life as it appears by Walshes Case cited in Altonwoods Case Cook lib. 1. and therefore he insisted not upon that Secondly he argued that a recital in the Kings Patents of a thing material if it be false and come by information of the partie is all one as a false Consideration and not otherwise and he said that it appears by Brook tit Patents pla 100. that all Considerations valuable although they are false do not avoid a Patent as where the King grants lands prodecem libris sibi solutis although that in facto this is false yet the grant is good also it appears by 26. H. 8. and Sir Thomas Wrothes Case and by 21. E. 4 fol. 48. that a consideration executed avoideth not a grant although it be false but he said that it appears by the Case of 18. Eliz. Dyer 352. that if the King make a lease in Consideration of a surrender of a precedent lease which in truth was void by some that the King may avoid the lease but others contrary because it was not done upon the suggestion of the partie but for a consideration executed and the surrender of the estate precedent was the material cause and consideration of the grant and he said that although in this Case there be not a good surrender of the letters Patents yet the Consideration being only the surrendring of the estate that is not material for as it is said in Altonwoods Case Cook lib. 1. if the King in Consideration only of the surrender of precedent Patents makes a grant in this Case there needs no averment of an estate for the surrender is not material of the letters Patents Also it appears Cholmleys Case Cook lib. 2. that if the King recite an estate to be made with Condition although that at the same time of the recital this is not Conditional yet if once this were Conditional the King is not deceived although the condition be now released and he cited also the Lord Chandos Case Cook lib. 6. where it appears that if the King recite a thing untruly which cometh not of the information of the partie this shall not hurt the Grant except it be part of the consideration and he said that Harris and Wings Case differs from this Case for there the King had a Tenant who held a Tenement by the yearly rent of six pounds and another Tenement of him by the yearly rent of nineteen pounds and he made a new lease of both those to the said Tenant without any recital of the former leases reserving but Nineteen pounds for both and there it was adjudged that the second lease was not good but he said that the reason of that judgement was not because the antient lease was not recited but by reason that a loss in the rent came to the King and so by intendment he was deceived and this was also upon the matter the reason of the resolution of Barwicks Case and also in Mack-Williams Case for there was not a surrender of the estate as the King intended which ought to be but in our Case the estate is well surrendred clearly and he thought that these words modo habens may well stand with the Kings intent aswel to a surrender in Law as to an actual surrender The Attorney generall to the contrary First for the recital that the information of the partie was that the King should have an actual surrender and so was the Kings intent collected upon the information of the partie Secondly that here is not any actual surrender Thirdly that by consequence it followeth that the Queen is deceived Fourthly here is no surrender in Law in this Case Fifthly although here were a surrender in Law yet that is not sufficient to make the grant good to the first point be said that alwayes a familiar construction ought to be made of the Kings grants and therefore if the King grant all his portion of Tithes in D. this doth not pass his Parsonage in D. although he had no other Tithes there so if the King grant all his Titheable lands within the Mannor of B. although the lands of Coppiholders are parcel of the demeasnes of the Mannor of B. yet these lands in such Case do not pass Cook lib. 1. Bozuns Case and Cook lib. 1. Altonwoods Case fo 46. aâ—so it appears by the pleading in Plowden in Wrothesleys case and in Adams case and also in Fulmerstons case that although the antient particular estate be gone in Law by the acceptance of a new estate yet it ought not to be pleaded as a surrender and therefore it shall not be construed that the King intended such a surrender which pleaders in their pleading do not accompt a surrender also he said that in regard that the Queen saith quam quidem sursum redditionem acceptamus it seems by that that she did not intend a surrender in Law and therefore accepted nothing but gave an estate c. and must be meant such a surrender to which she is partie by her acceptance also where the words are modo habens et gaudens and therefore it is inferred that the Queen intended an estate containing in the Patentee this is true for although that the Queen intended an actual surrender precedent to be made by the Patentee yet his estate continues against the Queen untill an acceptance of a surrender by her although also this may be called a surrender like unto a surrender of a benefice untill an acceptance by the ordinary also although it was found that the Queen made a new lease or letters Patents of the said Land to the said Lord Seymor yet it appears not that the new letters Patents were accepted by the Lord Seymor until a moneth after the making of them when he made a lease to Johnson and until that time without question there was no surrender either in fact or in Law and where it hath been objected that these words modo habens implie only the present time he said that the word modo will alwayes signifie such a time as the Verb with which it is joyned will signifie and therefore Cicero saith modo hoc malum in hanc Rempublicam invasit also the words Jam et nunc are of such signification as this word modo is and these words are alwayes governed by the Verb as Jam venit c. so in the Bible the story of Naaman and Gehesey Jam modo venerunt duo behold two young men are come to me c. and as to the second point it is clear that here is not any actual surrender for the King cannot take by an actual surrender without matter of Record And therefore it was holden in the Lord Stanleys Case that the King took nothing although his officers by his command did
feise a mans lands into their hands for the Kings use also he said that this appears by the 11. E. 4. and 2. Eliz. Dyer if a man comes and saith that he surrenders his office and a Memorandum is recorded thereof but the Patent is not delivered up it seems this is not sufficient to make a surrender so on the other side if the Patentee make a deed purporting asmuch yet it appeareth by 19. of Eliz. Dyer if the deed be not inrolled it is a good surrender and he agreed to that which hath been objected against him that although that the Iury did not finde in what Court the restoring of the Patent was yet it ought to be intended to be made in Chancery but he said that the Iury did not finde any time when the surrender was made and that is a thing material to be found as it appears in Kemps Case and Mack Williams Case before Thirdly an actual surrender being in the King new letters Patents urged to be made shall be intended to be part of the consideration which moved the King to a new grant and he vouched 18. Eliz. Dyer 352 where a lease was recited which needed not and in facto the said lease was a void lease in Law And therefore the new lease made was also void à fortiori here where an actual surrender is recited to be made Fourthly he said that the sole reason in Harris and Wings case was that the first lease ought to have been recited for if the King makes a lease and after makes another lease of the same land to the same lessee the first lease is in being at the time of the acceptance of the new lease as appears by Fulmerstons case in Plowden and therefore if in such case there be not a good recital of the lease in being the second lease is not good and so the acceptance of it makes no surrender of the former lease and he said that the recital of the Queen in the principal Case is a shewing of a former lease destroyed and not in being and then no actual surrender being made the said former lease contrary to this recital is in being still and so the recital is false and consequently the second lease is a void lease and so this worketh no surrender in Law of the old lease and so he concluded the fourth point that here is no surrender in Law and he held that if there had been a good surrender in Law yet this had not made the Patent good and where it was objected that a consideration executed though valuable being false avoyds not a Patent he said it appears in 6. Ed. 2. tit pardon Brook 79. that a consideration of service in the Kings Patent ought to be alledged to have been performed nevertheless it appears in Sir Thomas Worths case in Plowden that such a particular service being alledged in the Patent to be executed needs not an averment that it was performed for the Patent is good although such consideration be false but he said that in this Case the precedent surrender is the material consideration and therefore there ought not to be any material variance in the form of the consideration and so is the difference betwixt this Case and Worths Case and therefore if the King make a grant to A. in consideration that he had released by deed inrolled and he had released by fine here is a failing of the consideration that he had released by deed inrolled when as he had released by fine and so the grant is void and he said that as it appears by the judgement given in Welshes Case cited in Altonwoods Case that no equitie ought to be observed in the Kings grant against his express words so here no equitie ought to be observed against the King otherwise then his plain words import and therefore here his words import and intend an actual surrender precedent which ought not to be satisfied with a surrender subsequent and after upon the motion of the Earl of Salisbury Lord Treasurer of England this Case was referred to the Lord Privy Seal and the Lord of Worcester who awarded to Sir Robert Johnson 200 l. per annum during his life and the life of his wife for all his interest but the Earl of Salisbury Lord Treasurer seemed that the matter in Law was against Sir Robert Johnson although that equitie was for him to which opinion Tanfield chief Baron also inclined in regard there was not here any surrender in the Case but an extinguishment only Hill 4. Jac. in the Exchequer IT was moved by one whether the Kings Patentee of Pirats goods seising some goods of Pirats should pay custome for them or not and it was holden by the Barons that he should pay none for in asmuch as they are goods given by Law unto the King no reason that he should have custome for his own goods The Case of Queens Colledge in Oxford of Minosmer UPon a special verdict the Iury found that Queens Colledge in Oxford was incorporated by the name of Provost and Schollers of the Hall of the Queens Colledge of Oxford and they were seised in fee of an advowson whereof the place is parcel the Church being void the Provost and Schollers aforesaid did by the name of Provost of Queens Colledge in the Universitie of Oxford and the fellows and Scholers of the same present one A. to the same avoydance who after admission c. made a lease for years yet to come to the Defendant which was confirmed by the Patron and Ordinary and that afterwards A. died and the Plautiff was presented admitted instituted and inducted and the Defendant entring claiming his lease the Plantiff had brought this Action Harris Junior Serjeant for the Plantiff seemed that the presentation of the lessor of the Defendant was not by the true name of the Patrons and so the lease void and therefore the Defendant a Trespasser as to the Plantiff and he said that the name of a Corporation is not like to a mans surname which groweth by nature but is like to a name of Baptisme which groweth by politie and therefore ought to be truly observed in their grants and presentations as appears by 35. H. 6. fo 5. and it is there said if a man be baptized by the name of Posthumus if this addition of Posthumus be omitted this abates the writ but yet he agreed that variance of the name of a Corporation in some manner of Surplusage hindreth not as in Plowden Crofts and Howels Case and it was in Fisher and Boys Case ruled that Custos for gardianus was not any material variance but he said that in Mich. 29. 30. Eliz. in Banco Regis in Merton Colledge Case where the title was that the said Colledge was incorporated by the name of the Colledge of Scholers of the house of Merton Colledge and in a lease by them this word Scholers was omitted and holden void for that cause and so it was betwixt one Wingate
it seems to me it is apparant by the Statute of the 26. H. 8. Cap. 10. which gives power to the King by his letters Patents to limit the time for importing of Wines against the Statute of 23. H. 8. Cap. 7. which was no more but a restoring of his power abridged before and so was the Statute of 31. E. 3. for otherwise the Parliament would never have given him Authoritie to contradict an Act of Parliament by his letters Patents or to revive these Acts Impositions are meerly a new custome and so are they stiled in the Margent of the Roll of the 3. E. 1. in this Court where it is Recorded that the King had assigned Merchants to receive using the same words which are used here half a Mark for every Sack of Wool and a Mark of every Last of Leather and that if the Merchant who is so appointed Transport any after that it shall be forfeited and out of this record I observe that three hundred Pelts make a Sack of Wooll from the 21. Ed. 1. unto the 28. E. 1. the customs for Wools was 40. s. a Sack and in 25. E. 1. the Imposition of Maletolt was repealed by Act of Parliament which Maletolt was an increase of Impost upon staple commodities and therfore was given to the King a great subsidie with this cause that it should never be drawn into president which shews that this Maletolt was rightly imposed otherwise the Parliament would never have given him so great a Recompence for the Abrogation of it but after in the 13. of E. 3. because it was a thing of so great consequence to the Crown it was revived and made 40. s. for Wool and Woolfels and 3. l. for Leather for denizens and double for strangers in the 14. Ed. 3. a Petition in Parliament to abate it and for a great subsidie it was released and in the 18. of Ed. 3. it was again revived and a new petition was made in Parliament and this petition was continued until the 36. of Ed. 3. and then it was abated and also by the 45. E. 3. it was again abated so that it seem that between these times it was revived but after it did not continue long for in 48. E. 3. it was again revived and for Wool the Impost was 50. s. et sic de singulis and in 1. R. 2. after it was answered to the King as it appears in the accompts here and in 5. R. 2. it was again suppressed by Parliament for a subsidie granted to the King with a saving of antient rights all these Statutes prove expresly that the King had power to increase the Impost and that upon commodities of the land and that he continually used this power notwithstanding all Acts of Parliament against it and so much for commodities of this land but for forrain commodities it appears by no Act of Parliament or other president that never any petition or suit was made to abate the Impost of forrain commodities but of them the Impost was paid without denial as for example for Wines in the 16. E. 1. as appears in this Court upon Record it was commanded to the Bailiff of Dover to levie and Gollece of every Tun of Wine of a stranger 4. s. and in the 22. E. 1.2 s. thereof was released at the suit of the French Ambassador in the 26. of E. 3. the King granted priviledges to Merchants strangers but there was given for it an increase of custome and this was answered as it appears upon accompt in the times of E. 1. and E. 2. the case of Allom was as it hath been recited by my brother Clark it is objected that the Merchant ought to have free passage upon the Sea but that both not conclude the King but that he shall have his Impost if he cometh into his Ports and here the question is for Merchandise after that they are brought into the Port but it is said that they cannot come into the Port but by the Sea that is true but if this reason should hold then the King could not grant Murage Pontage and the like because the common Channel to them is free and Average is for securitie aswel as Ports another objection that the Defendant here is not restrained but that is answered for if a pain be inflicted upon them who import this is an inhibition upon a pain to all another objection was that there was no consideration of the Imposition and if it be demanded what differences between the cases I answer as much as is between the King and a subject and it is not reasonable that the King should express the cause and consideration of his Actions for they are arcana Regis and no satisfaction needeth for if the profits to the Merchant faileth he will not trade and it is for the benefit of every subject that the Kings Treasure should be increased an objection was made against the form of proceeding because it was by the great Seal to the Treasurer and that he by the customers Peteret et reciperet and this could not be better as it was answered before it was objected that it should be by Proclamation and that needs not for it toucheth not all the subjects but only those who are Traders in Merchandising the best and aptest means to give them notice by the customers and it is alledged by the information expresly that he had notice It was lastly objected that there ought to be a quod damnum in the case before the grant that is not so for that shall be only when the King granteth any thing which appertaineth to his prerogative and not when he maketh Charters to his servants to levy his duties due to his Crown wherefore I think that the King ought to have judgement which was after given accordingly 6. Jac. in the Exchequer An Information against Sir Edward Dimock THe Bishop of Carlisle called John May in A. 26. Eliz. made a lease in reversion to Queen Eliz. of the Mannor of Horncastle whereof the Bishop was seised in right of his Bishoprick and this was for 4. years and it was acknowledged before Commissioners appointed for this purpose and the Bishop prayed it to be inrolled and this prayer is indorsed but not inrolled and in 37. Eliz. this lease was confirmed by the Dean and Chapter in the life of the lessor and in 44. Eliz. the successor Bishop leased this land to Sir Edward Dimock the Statute of the 43. of Eliz. hath a proviso that it shall not extend to any lease before made by the Bishop of Carlisle to Queen Eliz. then not inrolled and after the death of the Queen viz. 5. Jac. this lease in 26. Eliz. is returned and certified to be acknowledged and is then also inrolled and Sir Edward Dimock had entred and was in possession by vertue of his lease in the 3. Jac. and the information was for entrie and intrusion in 3. Jac. and upon the Bar all this matter was discovered and a
Earl of C. now dead and found that by fine and recovery he conveyed an estate in this land to the use of his brother that now is Earl of C. in tail the remainder over to c. and died having a daughter now Countess of Dorset who moved by Dodderidge the Kings Serjeant in the Court of wards that this office was insufficient for by the pretence of the said Countess the first estate given to the Cliffords by E. 2. was a general tail and then the fine levied and the recovery suffered by the last Earl her father is no Bar but that it may discend to this Countess as his heir in tail and therefore Serjeant Dodderidge said to the Lord Treasurer then present in Court that if this should be allowed that Iurors may finde generally a grant made and shew no quallitie of the conveyance nor any place or time but if this were a grant of reversion or of a possession he said that many men by such offices should have their lands given away whereunto they had no means for uncertainties to take a Traverse and as to insufficiency of this office he said that the insufficiency therein consisted first in matter Secondly in form for the insufficiency of the matter is two fold First because that the office findes only that King H. 6. by sufficient conveyance not limited any manner of conveyances nor any qualitie thereof which ought to be shewed and it is material because we may give a different answer thereunto for against letters Patents we may plead one thing and against an other conveyance we may plead another thing and so our answer differeth according to the qualitie of the conveyance Secondly it is insuffient in matter because it is found that H. 6. granted the possession and that he granted the reversion nec non manerium which is repugnant for if the King grant a reversion then no possession passeth and if he pass a possession then no reversion passeth and therefore it is repuguant to say that he granted Reversionem nec non manerium which implieth a possession also he said that his exceptions to the office as to the Mannor of it are two-fold First the office doth finde any time of the grant made by H. 6. and this is material for the grants upon Record take their force from the time of their date as appears by Ludfords Case in Plowdens Commentaries and he said that at this time the case is material to be exprest in respect that H. 6. was for part of his reign deposed and after restored and it might be in the time that he was deposed by Edward the fourth but unto that it was answered by the attorney of the wards that the office found that H. 6. granted c. that it was not in the time when he was deposed the second insufficiency in the Mannor is because it is not found at what place H. 6. made the said grant and that this is material to be found by office he vouched 36. H. 6.32 and he said that it is very requisite that in such offices all circumstances ought to be expressed in as ample certaintie as in a declaration so that the partie prejudiced by the office may know where to search for the conveyance but the Attorney general said that there needs no such express finding of all circumstances by a Iury as it ought to be in pleading for it shall be taken by intendment in divers cases but yet he said that it appears by 1. Eliz. Dyer 174. it is a good plea to say that A. granted a reversion c. to the King without shewing how much more in office which is the Act of the Iurors and therefore Serjeant Harris cited the Book of 14 15. H. 7.22 where an office found an estate tail without mention of the Donor and yet good and the Attorney general said also that it appears by the finding of the Iury in Fulwoods Case Cook lib. 4. that the Iury need not precisely to finde all circumstances for if there be convenient certaintie the residue shall be supplied by intendment as it is there said and the Attorney said that whereas it hath been objected that the issue is evil because it is found that H. 6. granted the reversion and also the Mannor and Castle aforesaid and doth not limit incertaintie that the King granted a reversion or that he granted a Mannor in possession to that he said that it is clear that the King may after recital of a particular estate grant the reversion nec non terras sive manerium and then be the land in lease or be the lease void in Law yet the land shall pass and this is his course alwayes in granting the Kings lands to others and therefore the Iury did well to finde the truth without determining what should pass for admit that there were no estate precedent in being yet by this finding it appears plainly that the Mannor and Castle should pass by the grant in the time of H. 6. to which the Lord Cook agreed for Law and so he said it was his use when he was Attorney general to which also the Lord Treasurer Flemming chief Justice and Tanfield chief Baron agreed and the Attorney general said that his use was if A. had a lease from the King of B. acre which by effluction is to determine in Anno. 1612. and the said A. doubting that this lease was not good in Law prayed to have a new lease that in this case he recited the first lease in the new letters Patents and thereby granted the land for twentie years from c. which shall be in Anno 1612. or from the sooner determination of the former lease and the Iudges allowed it to be good and Dodderidge Serjeant said that after the difference taken between the pleading and the finding of the Iury it seemed to him that there is a great difference between them but after the finding of the Iury upon an office as our case is and a pleading there is no difference for the office is a thing to which an answer may be made but a verdict given upon issue joyned between the parties hath no other proceeding but to judgement immediately and therefore such a verdict shall be divers times supplied by the construction of the Iudges but a verdict upon an office ought to be as certain as an indictment because the partie may Traverse and to prove that upon such uncertain offices there is no remedy by Traverse he vouched the case of 3. H. 4 5. upon an insufficient office after the outlawry of A. and no time is found of the outlawry and he observed out of the said book that the partie outed by the said insufficient office had no remedy by Traverse but was compelled to make a motion to the Court and after this case for difficultie was referred to the two chief Iustices and the chief Baron to consider upon who the said Term at Serjeants Inne appointed it to be
Sir Robert Dudley appointed and after Sir Robert Dudley by licence from the King Travelled beyond the Seas to Venice and after the Barganees made a lease to Sir Robert Lee to the intent that the Lady Dudley should take the profits of part thereof for ten years if the estate of the Barganees should continue so long unrevoked and after the King having notice of divers abuses made by the said Sir Robert Dudley in the parts beyond the Seas commanded the said Sir Robert Dudley by privy Seal delivered unto him the 10th of April in the 5th year upon pain of forfeiture of all his lands and fortunes to return again immediately c. and after a Commission issued forth to inquire what lands and Tenements c. Sir Robert Dudley had or others for him in use or upon confidence and the Iury found this special matter but found not any fraud expressy and thereupon the King exhibited his Bill here against the Barganees and also against Sir Robert Lee their Lessee who truly discovered all this special matter and that they were not knowing of the Deed until long time after making of it and that no consideration was given by them in this case for the lands so bargained and it was argued by Sir Henry Mountague Recorder of London for the King if these lands should be seised or not he conceived that there are three things considerable in the case First the contempt of Sir Robert Dudley in his not returning upon the sight of the privy Seal and of what quality this offence is Secondly what interest the King had by this offence in the land of Sir Robert Dudley being the offender Thirdly if notwithstanding these offences these lands ought to be seised for the King touching the first point he said that it is requisite to examine if a subject at the Common Law may go beyond the Seas without Licence and in what cases the Law allows a man to go out of the Realm without Licence and as to that he said that it appears by the reason in the 12th of Eliz. Dyer that at the Common Law every man may go out of the Realm but the Statute of the 5. Richard 2. restraineth all but Merchants noble men and Souldiers and as he conceived this was but an affirmance of the Common Law notwithstanding the Book before cited and to prove that he said that the opinion of Dyer in the first Eliz. fo 165. seemeth to agree also it is proved by divers Licences granted before this Statute see F. N. B. fo 85. in the writ de securitate invenienda quod Se non divertat ad partes exteras sine licentia regis according to the 12. Eliz. in Dyer and he further said that there are two reasons to prove that no man may go beyond the Sea without Licence at the Common Law for by 2. E. 3. and the 16. E. 3. and Glanvil in his Chap. of Essoynes by such means the subjects may be deprived of their suits for debt and also the King may be deprived of the attendance of his subject about the business of state and it appears by the Register fo 193. 194. that religious persons purchased licences to go beyond the Seas and it appears by Littleton in the Chap. of confirmation that a dissent takes not away an entry of him who is beyond the Sea except it be by the Kings commandment see the case intended by Littleton in the Chap. of Continual claim there it seems to be a doubt to Littleton then he argued further if the Common Law alloweth not a subject to go beyond the sea without licence but reputes it a great contempt this is a great contempt in him who will not return by the Kings command and the Law hath alwayes punished such contempt as it appears by Dyer fo 28. 177. 19. E. 2. John de Brittons Case also there is a president for seisure of all his lands for such contempt and he vouched the book what the King had done where he cited that the Prior of Oswaldshire forfeited all his lands and possessions for such contempts and so concluded the first point of the quality of the offence and spoke nothing of the licence which Sir Robert Dudley had of the King at the time the which as it seemeth was not expired nor the power which the King had to Countermand it within the time to which the Attorney general in his argument did speak to the Second point it seemeth that the contempt giveth such an interest to the King that he shall retain the land until conformity for he who dwelleth in contempt ought not to have any possessions here and he cited the 22. H. 6. and the 21. H. 7. and divers other books which are cited in Calvins Case Cook lib. 7. also he said that there is a difference where the King is offended as King of England and where as head of the Kingdome as this case is which is a greater offence in qualitie then for any offence for which men should lose their lives as if they should stand mute upon their arraignment c. also there is a great difference between this contempt and by outlawry and therefore in case of outlawry he needs no office but the King is only intitled to the profits of his lands which is but a transitory Chattel in which case an office is not necessary but where an interest coms to the King there ought to be an office and he vouched Pages Case in Cook lib. 5. and Sir William Herberts Case but he did not endeavour to prove what interest came to the King in this case for when an interest comes to the King there ought to be on office as to the second point he said that trust between parties is fraud as to the King and in this case the badges of fraud are found by the office First his purpose to go beyond the Seas Secondly his Barganees are not privy to the Deeds Thirdly no summe was paid by them Fourthly here is a power of Revocation Fifthly covenants to execute all grants as Sir Robert Dudley appointed Sixthly the subsequent Act that is viz. his staying beyond the Seas and his not returning upon the Kings command and although in this case there be no fraud in the parties who are Barganees and so the fraud is only of one partie yet it appeareth by the 19. of H. 8.12 that if an infant hath right to land and a stranger disseise the Tenant to the intent to infeoffe the infant without Covin in the infant yet the infant shall not be remitted and he vouched Delamores case in Plowden to be accordingly also there are divers cases in our books to prove the inveterate hatred which our law beareth to all Acts which are fraudulent and therefore in 44. E. 3. 41. Assise pla 28. it appears that a recovery upon a good title although it be in Dower which is favoured in Law against a Tenant who comes to the
Common Law it is also to make an obligation in the name of another to be forfeitable although it was not at the Common Law so if we will have a confidence or a trust to be forfeited we ought to have a Statute made to this purpose and as to Pauncefoots case he said that the King had a title by the indictment of recusancy before the conveyance made by Pauncefoots but so it is not in our case whereby appeareth a plain difference betwixt the cases see the 14. H. 8. fo 8. the Attorney general to the contrary at another day and first he spake to the quality of the offence viz. the contempt and this offence as he said is aggravated by these circumstances First the command of the King himself came and not of any inferiour officer as Sheriff c. and it is immediately directed to the partie himself Secondly the command is that he shall return upon his faith and allegeance which is the strongest compulsion that can be used Thirdly the thing required by the King is the principal dutie of a subject viz. to be at the command of the King for service and not as the common summons in Law is to answer at the suit of I. S. and he said that this contempt is to be accompted in quality of a contempt from the very time when the privy Seal came to his hands for the words quod indilate c. and it hath been in all ages the course and use to punish contempts of this kinde by seising their lands and he vouched in proof thereof the presidents of John de Brittons case in 19. E. 2. and of Edward de woodstock in the time of E. 2. and the case in 2. Ma. Dyer fo 128. 2. Eliz. Dyer Barners case fo 176. and 23. Eliz Dyer 375. and Englefields case Cook lib. 7. moreover he argued in so much it is clear that the King shall seise his lands for this contempt it is to be considered what estate or interest the King shall gain by this seisure and as to that he thought that the King hath an estate at the least for the life of the effendor and that he conceived is proved by the presidents for these words are used in the seisure c. donec aliter duxerimus ordinandum c. and he said that this is proved by Englefields case and also by the way and manner of the seisure and disposing of the land for such contempt in 23. Eliz. Dyer 375. by the Statute of 13. and 14 Eliz made against fugitives also he used this reason to prove that the King had an estate for life viz. because the offender by this contempt had impliedly deserted his land and left it to the Kings dispose and then it is all one as if he granted the land to the King to hold and use as long as he pleaseth and such an express grant will create an estate for life in the King as is proved by 35. H. 6. where it is agreed that if I give land to A. as long as he will this is an estate for life and so here by this implied Art c. also as to that that may be pretended in this case that the King granted licence in this case to Sir Robert Dudley to travel for a time certain which time is not yet expired and therefore the contempt qualified or satisfied by reason of this licence to that he said that notwithstanding that was the case yet the contempt is all one as if he had no licence at all in regard it is countermanded by the privy Seal which injoyns him to return and to prove that this licence is alwayes countermandable by the King he said that besides the common usage and obedience of countermands of this kinde he said that it was to be proved by reason also and authority of our books for although here be a licence indeed yet there is great adversitie between a licence indeed which giveth interest and a licence indeed which giveth only an authoritie or dispensation as in our case for the one is not to be countermanded but the other is as appeareth by 5. H. 7. and 1. Ma. Dyer 92 and admit that after this licence and before the departure of Sir Robert Dudley the King had said unto him you shall not go this had been a good countermand as seemed to him and he vouched 9. E. 4.4 and 8. E. 4. if I licence A. to stay in my house for three dayes yet I may put him out in the mean time but otherwise it is if I licence A. to hold my land for 3. dayes because there an interest passeth and the reason wherefore this licence in our case is countermandable is because all licences of this kinde have tacite conditions annexed to them for no Act or licence wil. free a subject from his allegeance as appeareth by Doctor Stories case in the 13. Eliz. Dyer fo 300. and no man can put off or be dismissed of duties which belong to a subject no more then he can put off his subjection and this is the reason that an honor or dignitie intailed ought to be forfeited although it be intailed for the honor which is given by the King hath a tacit condition in Law annexed unto it and it ought not to continue in him who committeth Treason nor in his posteritie although that the partie had but an estate tail therein see Nevels case Cook lib. 7. and so had the King his licence which is but a dispensation for the time and countermandable by the King and he said that the Book in 2. Eliz. Dyer fo 176. makes it a doubt but he thought it clear for the reasons aforesaid and as to the material point viz. if this land shall be priviledged from seisure by reason of this bargain or not and he said that it shall not be priviledged for this conveyance which is revokable at the will of the Bargainor is meerly fraudulent against any interest of forfeiture for otherwise the Kings subjects are but as ferae naturae which when they are out of their pale the King had no means to reduce them within the Park again for in this case had no means directly to punish this offence upon the body of the offender but by the depriving him of the means of his maintenance and although there be no fraud here in the parties Bargainees yet the fraud in the Bargainor makes the conveyance void against the King for as it appeareth by our books the King cannot be an instrument of fraud although he may be party thereunto see 17. and 21. E. 3. so in the case of an infant cited before by Mountague all which and many others to this purpose of fraud are cited in Farmors case Cook lib. 3. fo 48. and whereas it was objected that here can be no fraud intended in the offender in regard he had a licence to travel and it cannot be intended that he presupposed any countermand of this licence and
to commit a contempt by his refusing to return and so to save his lands by this conveyance in respect this countermand is a thing whereof he could not have divined to that I answer that the contempt subsequent is a sufficient proof of such precedent conjecture and that the conveyance was made fraudulently to prevent the prejudice which might accrew unto him by such contempt and this opinion will appear by the makers of the Statute of 13. Eliz. cap. 3. and 14. Eliz. cap. 6. made against fugitives and may well be collected upon the perusal of those Statutes and that the Iudges here ought to make such construction upon the subsequent Act he vouched the case of Doctor Ellis in Plowden and Saunders case in the matters of the Crown happening at Salop by which cases it appeareth that the Iudges proved the first intent by secondary Actions subsequent by way of discourse and therefore in Saunders case the partie having an express intent to poyson his wife delivered unto her a poysoned apple and the wife not knowing it to be poysoned gave it to her child who died thereof there the indictment against Saunders was that of malice forethought c. he intended to murder the child although this was not his first intention so in the other case there cited if a man intend only the death of A. and being fighting with him be a stranger interposeth himself to part the affray and he is slain this is wilful murder although here was no primer intent to kill B. but this is made an intention by legal collection and so in our case here is intentio Jegalis and not actualis and yet aswel unavoidable as any other also although it hath been objected that by the common Law none shall avoid a conveyance by reason of fraud except he who hath a former interest and the Statutes give no authoritie to any but to purchasors upon valuable consideration yet I say that the Statute of 13. Eliz. is to avoid all fraudulent conveyances against such as by any means may be hindred thereby yet the intention was not to defraud the partie who is thereby defrauded but some other and therefore although it was not to defraud the King in our case yet being fraudulent it is void against him by this Statute for he should be hindred thereby also the proviso in this Statute saveth such conveyances only which are upon good consideration and bona fide and that is such wherein simple and plain dealing are used but in this conveyance there was not any simple and plain dealing used for the Bargainees paid no money nor ought to take no profits of the land nor dispose of any estate therein and therefore fraud for Dolus est Machinatio cum aliud dissimulat aliud agit also the preamble of the Statute of the 27. Eliz. willeth that conveyances shall be void which are made to the use of him who maketh the conveyance or otherwise to defraud purchasors although that the body of the Act mentioneth such only which are to defraud purchasors and he vouched the Statute of the 28. Eliz. made against couveyances by resumption and he said that Twines case in Cook lib. 3. proveth our case effectually to be a void conveyance which cannot be answered but the Lord Treasurer said that there was fraud in both parties and he argued further and vouched Goodales case Cook lib. 5. to prove that a Deed shall not be deemed to be good except it be free from all fraud or clandestine agreement as it was there resolved that the payment for performance of a condition was not good as to strangers by reason of a precedent agreement and Burrels case Cook lib. 6. where it appeareth that no fraud shall be accounted bona fide as to strangers which is accompanied with trust c. also although here is not any fraud expresly found by the office yet he thought that the equity of the case appears plainly and that it shall be for the King and he vouched divers decrees in this Court to prove it as 43. Eliz. Howse was outlawed and took divers bonds of Carne in the names of others his friends viz. of Marlow and others in trust also took Statutes in their names in trust and it was decreed here that the King should have all vy reason of the fraud although it be not found by any office and in Hoards case it was decreed here that whereas the said Hoard betwixt the years of 25. and 32. had sent divers summes of money to Sheldon of Bealie and had taken divers obligations and other securities of him in others names before his conviction yet it was decreed to the King in this Court without any fraud found by office and in Sir Walter Raughlies case the same year decreed in this Court that whereas Sir Walter Raughlie being possessed of a tearm of 100. years of _____ he having a determination to purchase the reversion in fee of the same land conveyed his Tearm to his eldest son to the intent it should not be drowned and therefore about 40. Eliz. he purchased the fee and after in the year c. of our King that now is he committed Treason and was attainted and it was decreed here that the King should have the land discharged of this lease viz. in possession and although no fraud be found in the case but only it appeareth by circumstances of witnesses here examined that Sir Walter Raughley took the profits of the laud and held Courts in his own name until the attainder yet the said assignment was conceived to be in trust and therefore decreed to be void against the King as for fraud although he was convicted of Treason a long time after and so the Kings title subsequent to the said assignment and he vouched Walter de Chirtons case in 24. E. 3. Rot. 4. also as to Mr. Wardenfords case in 2. and 3. Eliz. Dyer 193. and the 9 and 10. of Eliz Dyer 267. but our case is different from them in two material circumstances which alter the law in the cases First we are in a Court of equitie by English Bill where the Iudges are only to adjudge upon the fraud and there they were in a Court of Law and the fraud was the matter of fact which ought to be expressy found by the Iury as appears by the books Secondly in that case the Iury found expressy that the conveyance was not by fraud to deceive the King of his wardship but only to deceive the Creditors c. but in-our case there is no such negative and therefore it differeth much see Dyer 267. and 268. as to the finding in the negative at another day in the same Term of Easter 7. Jac. the Barons decreed for the King and the Lord Treasurer agreed and he then demanded of Tanfield chief Baron if upon the return of Sir Robert Dudley he ought to have his lands again of right or if but upon special grace and the Lord chief
come ceo only of foure Bullaries if this fine and the use of the estate passed thereby shall be directed by the covenant it was the question and it was moved for a doubt what Bullarie that shall be intended whereof the fine is not levied by reason of the incertaintie quaere and it was adjourned Nota that an estreate of divers fines imposed upon several indictments at the Quarter Sessions for several Riots was sent into this Court and the estreat here being mentioned not for what offences the fines were imposed and the records of the indictments were in the Crown office by a Certiorari and the chief Baron Tanfield said that the estreat was insufficient and we ought not to send out Proces upon them because they do not mention the quality of the offence for which the fines were imposed and therefore it may be discharged by Plea yet if the estreat be not warranted by the indictment so that the indictment is discharged for insufficiency in the Kings Bench the Record thereof may be certified into the Chancery and by mittimus transferred hither and we may discharge the estreat and Altham Baron agreed that the partie grieved by such fine upon an insufficient indictment may plead all this matter and spare to remove the Record and if the Kings Attorney will confess the plea to be true it is as good as if the Record had been removed which was not denied An Amercement for a by Law IT was moved for the King upon a lease holden for him that I.S. was amerced 10. l. because he received a poor man to be his Tenant who was chargable to the parish contrary to a pain made by the Township and thereupon Proces issued out of this Court and the Baily distrained and I. S. brought Trespas and it was said by the Barons and ordered that if I. S. will bring an action for the distraining for this amercement be it lawfully imposed or not yet I. S. shall be restrained to sue in any other Court but in this and here he shall sue in the office of Pleas if he will for the Bailiff levied it as an officer of this Court and for the matter Snig said that if I. S. received a poor man into his house against a by Law made in the Township there is good cause of amercement but by Tanfield it is nothing to us that they have a custome to make by-Lawes herein against a by Law made by us also a leet of it self hath no authority to make by Lawes or such an order but by custome it is good Snig and Altham Barons it is good policy to make an order with a pain in a Leet that no person shall receive any such Tenant as shall be chargable to the parish but clearly the Steward cannot amerce one for such a cause without an order with a pain made before Sir John Littletons case SIr Iohn Littletons case was that all the lands of a Monastery were granted unto one Dudley reserving 28. l. rent yearly for a Tenth of all the laid land according to the Statute and after Dudley granted the greater part of this land to Littleton and that he had used upon the agreement made between Dudley and him to pay 20. l. yearly for the Tenth of his part and Dudley had used to pay 8. l. yearly for that which he retained and after Dudley was attainted whereupon his part of the said land came to the King and now the Auditor would impose the charge for all the Tenth upon Littleton but by the Court although the Tenth was Originally chargable and leviable upon all and every part of the land yet it being apparant to them that part thereof came to the Kings hands it was ordered that the land of Sir Iohn Littleton should be discharged before the Auditor prorata and so it was and Littleton to pay only 20. l. yearly Sweet and Beal NOta that in Michaelmas Term 6. Iac. upon a special verdict this case was depending in the Exchequer viz. Anthony Brown devised a term to his wife until the issue of the body of the Devisor accomplish the age of 18. years bringing up the said child Provided that if the devisor die without issue that then the land shall go to the said wife for term of her life paying to the sister of the Devisor 6. l. 13. s. 4. d. yearly which he willed to be paid at two feasts half yearly and that if it be arrear then it shall be lawful for the sister to distrain and to detain the distress until it be paid and the Iury found that the devisor had issue at the time of his death but that the said issue died before he accomplished the age of 18. years and they found also that the rent of 6. l. 13. s. 4. d. payable to the sister was not paid at one day in which it was payable and that no demand was made for it and that Moil Beal who was the right heir entred for the condition broken and made a lease to the Plantiff who being outed by the wife brought an Ejectione firme and Chibborn of Lincolns Inne argued that the entrie of the heir is lawful first he said when he devised to his wife until his heir come to the age of 18. years bringing up the said heir if in this case the heir die within the said age the state of the wife is determined by reason that the education was the cause the land should continue to the wife and the cause being determined by the death of the heir before the said age therefore the estate is also determined and upon that he bouched a case in Mich. 3. Iac. one Collins devised that one Carpenter should have the over-sight and managing of his land until his son should attain the age of 5. years and the son died before he attained the said age and it was agreed admitting that Carpenter had by that devise an interest that it is now determined by the death of the heir to the second matter viz. when it is limited that if the devisor die without issue that then the wife shall have it by that it seems to me that the wife shall not have an estate for life by these words as our case for at the time of the death of the devisor he had issue so that it cannot be said that he died without issue although now we may say that he is dead without issue but in regard that the words of the will are not performed according to the proper intendment of them the Iudges ought not to make another construction then according to the litteral sence the litteral construction being properly the words to bear such a meaning and this as he said may be proved by Wildes case in Cook lib. 6. but more strong is our case because in a case which carrieth the land from the heir there ought to be a strong and strickt and not a favourable construction made to the prejudice of the heir
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
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
ought to take notice as it was said by Damport who was of Councel with the Plantiffe in the Error for this word capiatur is of course entred in the Roll for the Kings fine which is due by him who is convicted of Trespass as it appears by Cook lib. 3. in Sir William Harberts case and in this case the fine was pardoned therefore pardonatur ought to be entred as it was in Vaughans case Cook lib. 5. but the Iudges resolved that of these general pardons they are not bound to take notice without pleading for in regard there are divers exceptions in them the partie ought to shew that he is none of the parties excepted as the Book is in E. 4. but if they will they may take notice thereof without pleading as it seems by Vaughans case and so said the Iudges in the Common Pleas this Term and so here the judgement was affirmed Calvert against Kitchin and Parkinson Trin. 7. Jac. in the Exchequer IN Trespas by Calvert against Kitchin and Parkinson upon a special verdict these points were moved and argued by the Councel at Bar and first â—â—e case in substance was that one Parkinson was a devisee of the next avoidance of the Parsonage of D. the which Church became void by the death of the Incumbent and after one A. and the said Parkinson Simoniacally agreed that the said Kitchin should be presented by the said Parkinson to the said Church aforesaid and that after Kitchin not knowing of this Simoniacall agreement was presented instituted and inducted to the Church aforesaid and all this was after the Statute of 31. Eliz. cap. 6. and after Queen Eliz. intending that this presentation belonging to her by reason of this presentation for Simonie by force of this Statute of the 31. Eliz. presented one D. and before that B. was admitted and instituted the Queen died and now the King presented Calvert with out any recital or mention of the presentment made by the Queen and without any Revocation actually made of the said first presentation and thereupon Calvert is admitted and instituted and for the Tithes as Parson he bâ—ought Trespass Hitchcock intended three questions as he said but moved also other things First if a devisee of the next avoidance be a Patron within the intent of this Statute of the 31. Eliz. cap 6. Secondly it within the said Statute here be Simonie in the Patron and not in the Parson if this ought to prejudice the Parson or not Thirdly if the King ought to present by this laps after the Queen had made presentment without recalling of the former presentation or if the presentation of the Queen ought to be adjudged a Turn to the first matter he said that a next avoidance is a thing devisable well enough within this Statute for the truth is it is not a thing of any value in the accompt of Law and therefore it is no prejudice although that the third part do not descend to the Patron for the Common Law intends it to be of no value and he said that the form of conferring to a benefice was ad ecclesiam c. as appears by 7. E. 3. fo 5. and he vouched Bracton to prove that the Patron had nothing but to provide that the Church should be full c. and to prove that this is a thing devisable he said that it was so adjudged in the Common Pleas Mich. 33. and 34. Eliz. Rot. 2122. but admitting that here was not any Patron by reason of any devise then if he who presented be a disturber and had acquired this Patronage hac vice by Vsurpation then that also is given to the King within the intent of this Statute by reason of this agreement for Simonie and therefore he said that if he who had but a nomination corruptly agree to make a presentation or nomination this nomination shall be forfeited to the King within this Statute as it is said in Plowden in Hare and Bickleys case he who hath the nomination hath the effect of the Advowson and also he observed the words of the Statute which say that if any person do for money c. present any one c. that every such persons presentation shall be void and it shall be lawful for the King to give the same benefice for that turn c. so that if he had title or not yet this turn is forfeited to the King as by the Statute of 1. Jac. cap. 33. it is provided if any goods which ought to pay subsidie be laid on the land the subsidie not paid c. the same goods shall be forfeited it hath been agreed that if a stranger who had nothing to do with these goods cause them to be laid upon the land that they shall be forfeited against the owner as it was admitted in Levison and Kirks case in 7. Jac. and so here in respect that the true Patron suffers a Vsurper to present and his presentee to be admitted and inducted this turn shall be forfeited to the King by reason of the Simonie against the rightful Patron and he conceived that although that the Presentee in this case was not partie to this corrupt agreement yet he shall be prejudiced by it although not so prejudiced thereby but that he may be capable to be presented again to the same benefice but hac vice the presentation of him is void for as Littleton saith the presentee ought to accept the Parsonage subject to such charges as the Patron pleaseth who in the time of Vacation hath power to charge it and so by his Act had made it subject to the forfeiture and therefore the person who cometh under him shall be prejudiced and therefore he vouchâ—â— the case in the 19. H. 8. fo 12. if a stranger agree to disseise an infant to the intent to infeoffe the Infant although that the Infant were not knowing of the Coven yet he shall not be Remitted because he came in under a wrong deer To the third matter he said that the King may revoke his presentation and by the same reason he may present another before his Presentee is instituted and to prove it he said that a Common person may recal his Presentation before the institution c. and he vouched the Book of the 31. E. 1. Tit. quare impedit 185. the Abbot of Leicesters case although that Dyer citing of it 12. Eliz. fo 292. conceives the Book contrary but it seems to be in reason that the Law is cleere that a Lay person may change although that a Spiritual person cannot and the reason is because a Lay person did not know his sufficiency peradventure at the first but a Spiritual person by intendment may inform himself thereof wel enough and therefore he vouched 18. H. 7. and 1. H. 8. Kelloways Reports which proves that diversity plainly as he said then he thought by the same reason if the King present one and dye or vary before institution that here he himself or
his successor may present anew and seemed to him no question and to this purpose he vouched 12. Eliz. Dyer fo 292. that he may repeale and it is not of necessity that this instrument which purporteth the repeale should be shewed to the Gardian of the Spiritualties and by the 19. Eliz. fo 360. in Coleshils case if it is said that when the King hath presented a Repeale by him ought not to be admitted after institution see for such matters in the Book also he vouched Dyer 339. Yattons case to prove that the King may repeale his presentation by a new presentation without mention made of the former except that the second presentation be obtained by fraud as there it is and he vouched Dyer 294. Goodmans case and so he concluded Damport to the contrary there are two points The first is the Patron and a stranger corruptly agree to present Kitchin whereupon he is presented if this shall be void against Kitchin 2. admitting that the Queen had title to present and she presents and dyes before admittance if the King may present a stranger without mentioning the other presentation to be repealed As to the first he said that at the common Law so if one be simoniacally presented yet this is not void untill the Presentee be deprived and if before this Statute such a corrupt presentment had been made the incumbent and ordinary being free then no presentment should ensue and he vouched the saying of Linwood an Author of the Civill Law to be accordingly but if money be given by the friends of the Presentee and after the King had notice thereof and assent then it is not punishable but pardonable at the discretion of the King and now by him the Statute provides no punishment for the person when the Patron only consents to the Simonie for he observed that after the said Statute of 31. Eliz. had appointed a punishment for the Patron then in the last part of this branch the words are the persons so corruptly taking c. shall be incapable of the Benefice aforesaid and so it seemeth that the intent of the Statute is not to punish any party but he that is to the Simonie and this is also explained to be so by other Clauses in the Statute for another Clause inflicts punishment upon him who is party to a corrupt resignation and so in all the clause those only who are partakers of the Crime shall be punished and to prove that such comstruction hath been made upon penall Statutes that he only shall be punished who had notice of the crime he vouched Littleton who saith that upon the Statute of Gloucester notice was requisite or otherwise no default also he vouched to this purpose the case of Pickering in 12. Eliz. Dyer fo 292. a Lay Person presents a Bastard to a Benefice who was admitted accordingly c. and in a suite thereupon issue was admitted to be taken if the Patron knew that he was a Bastard so if he had no notice thereof then there is no default in him and he vouched 43. E. 3. to this purpose 22. E. 4. tit consultation and he well agreed Closse and Pomcoyes case now lately adjudged which was that Sir George Cary being seised of aâ— Advowson granted the next avoidance to his second sonne and dyed and after the Sonne corruptly agreed with I. S. to procure the said I. S. to be presented to this Benefice and the second brother knowing thereof it was agreed that for the perfecting of the agreement the second Brother should surrender his Grant and interest to the elder brother which elder brother not knowing of the said corrupt agreement presented the said I. S. who was instituted c. all shall be void for he is presented here by reason of this corrupt agreement between the Patron who then was and the parson and the elder Brother was only used to convey a bad gift by a good hand and all had reference to the corrupt agreement with the assent of the Patron who then was but here in our case was no agreement assented unto by the Parson and this diversity also seems to be good that if A. hath the presentation and B. the nomination to a Benefice and the Presentor upon a corrupt agreement makes a presentation unknown to the Nominator here the Nominator shall not be preâ—udiced within this statute As to the second matter it seemes that by the demise of the Queen this presentation is not countermanded or repealed in Law and therefore he said that he would agree that if the Qeen had made such an Act which was only a bare Authority without interest this will determine by her death as it was ruled for a Letter of Atturney to execute livery of Dutchy Lands for this is a bare Authority and is a means to do a thing to her prejudice and he agreed that by implication or without cause a common person could not vary from his presentation as if a Feme sole present and intermarry this is not controuled by her marriage for it is a thing which is not to her prejudice and he vouched Cook lib. 4. Forse and Hemlins case and one Marke Ogles case proveth that the death of a Common Patron is no revocation of his presentation for if a man present and dye if it be a disturbance his Executors may have a Quare impedit and much more in the case of the King who dyeth but he well agreed that the King might have repealed his presentation and after have resumed it again which proveth that it is not a meere Authority but mixt with an interest for an Authority revoked cannot be revived but without Actuall repealing it is not to be avoided and therefore he vouched Sir Thomas Wrothes case in Plowden fo 457. That if the King grant to one licence to purchase Land in respect that by a means this doth acquire an interest to a party this doth not determine by the demise of the King although the Grant be not for the King and his Successors so here this presentation is a meanes to give an interest to the Party and therefore is not determined by the Demise of the King and he vouched 1. Ma. Dyer fol. 92. and so if it be a Licence dispensative this is not determined by her death and he vouched 3. E. 3. fo 29. cited in Sir Thomas Wrothes case see more after Mich. 7. Jacobi in the Exchequer Sir Daniel Nortons case IN Sir Daniel Nortons case it was agreed that where one Oglander was chargable to the King for 27. l. for an Amercement for which Processe issued out of this Court to Sir Daniel Norton Sheriff of Hampshire to levie it and his under Sherif being Chamberlain came to Oglander upon another occasion and Oglander said unto him Chamberlain you do owe vnto me 30. l. by bond I pray you pay me whereunto Chamberlain said you are to pay me 27. l. for an Amercement which I ought to Levy against you by
Process which I have and if you will give me my Bond I will give you 3. l. and discharge you of the said Amercement to which Oglander agreed and delivered the Bond accordingly and all this Oglander disclosed by Affidavit and further said that Sir Daniel Norton had taken his goods for the said Amercement again this not being discharged in the Office and it was said by the Court that this was a good levy of the said Amercement by Chamberlaine in the Law and therefore Sir Daniel Norton ought to be charged for it to the King as a thing levied by him and Oglander shall be discharged of any another levying and therefore c. Sawier against East SAwier against East in an Ejectione firmae for certain Mills in East Smithfield called Crush Mills a speciall Verdict was found that Queen Eliz. was seised of them in right of her Crown and the 28. of her Raign leased them to Potter for 40. years who in the 30. Eliz. dyed and Mary his Executrix entred and took to Husband one Burrell which Burrell 33. Eliz. demised parcell to Wilkinson for 20. years and dyed Mary took Hitchmore to Husband who in 44. Eliz. 2. May surrendred to the Queen and after the 2. of June 44. Eliz. the Queen reciting the first Demise made to Potter the interest of which is now come to Hitchmore and that he had surrendred to us demised the premisses to Hitchmore as well in consideration of xxx l. paid as for that that the said Hitchmore did assume upon himself to repair the said Mills at his own cost being greatly in decay and to leave them so repaired and the Iury also found that in the same Patent there was a Covenant that Hitchmore should repaire them c. for the doing thereof he had given some assurance and that the Mills were not repaired and that the Lease made to Wilkinson is now in Esse being for 20. years and that the King that now is had granted the said Mills to the Lesse of Sawier c. Walter for the Plaintif First it seemeth that this false recitall in the lease made to Hitchmore makes the lease void and the point is that the King by recitall in this Lease intends that all the interest of the former lease was surrendred whereas Wilkinson was possessed of part thereof and so it is in deceit of the Queen in matter of Profit and therefore makes the new Lease void and to prove that a false recitall in the Patent may avoid it he vouched 37. H. 6. fo 23.3 H. 7. fo 6. and 11. H. 4. fo in all which cases it is said that if the King make a Grant upon a suggestion made to him which is false this will avoid the Patent but if a true suggestion be made to the King and he himsel thereupon makes a collection or surmise this doth not avoid the Patent as the Lord Chandos case Cook L. 6. and by 21. E. 4. fo 48. By Hussey but there if the surmise of the party be false in any thing this avoids the Patent and therefore Hussey there saith that if the King recite that whereas the Mannor of D. is escheated to him and he grants it to A. where in truth it was parcell of his Autient Inheritance this doth avoid the Patent but there by him if the King recite that whereas his servant is decrepit he of his meere motion grants the Mannor of D. to him this falcity doth not avoid the Patent because the consideration is of his meere motion and by intendment the recitall is not the information of the party and then in our case the lease is not ex gratia c. and the recitall is the recitall of the party for it is of an Act done viz. of a surrender supposed to be made by the party and that upon the matter is resolved to be a cause to avoid the Patent as it is in the Lord Chandos case and so also holden by Hussey in 21. E. 4. fo 48. and 9. of E. 4. in Baggots Assises if the surmise of the party be false and valuable to the King then the falcity there avoids the patent but if it be not of a thing valuable or beneficiall to the King the falsity doth not avoid the Patent 29. E. 3. Grants 58. if the King recites that whereas the Advowson of D. is holden of A. and he licenceth A. to appropriate if in facto it be holden of the King himself the licence is not good because the King is deceived in matter of profit and so 12. Eliz. Dyer 292. and 25. E. 3. there cited where the King presents and before admision he repeals and then recites that whereas his Presentee is Canonice institutus c. and confirms it here although that the Bishop after this repeale had instituted the party yet it appears that the recitall which is void makes also the confirmation void 8. H. 7. fo 3.9 H. 6. fo 28. and 21. E. 4 if the King recite that whereas the Mannor of D. came unto him by the Attainder of A. be grants to B. and in truth this did not come by the Attainder of A. but is an inheritance of the Crown this avoids the Grant and 21. E. 4. fo 28. by Bryan if the King recite that he is indebted to A. in 20. l. and grants to him the Mannor of D. if he be not indebted to him the Grant is void and so it appears by Sir Hugh Cholmleyes case Cook lib. 2. fo 54. that if the Queen recite a thing the falsitie whereof doth prejudice her in matter of profit now the misrecitall avoids the Patent as there it was admitted that if the Queen recite that whereas A. is seised of an Acre in taile upon a condition c. and she grants the reversion to B. here if the state of A. were without a condition the grant of the reversion is void for this false recitall and according he vouched Alton Woods case Cook L. 1. and in our case it is prejudiciall to the Queen that all the interest in the former lease is not surrendred but a part thereof is in Wilkinson for the Queen intended that all this Land now leased should be immediately lyable to her rent newly reserved where in deed it cannot be so here untill the antient lease be determined whereby c. this recitall is tacitely intended part of the consideration For the second Point it seemeth that here is a falcity in the consideration expressed for the Queen leased to Hitchmore as well for 30 l. as for that that he assumed to build and sustaine so that the assumpsit to build and sustain is part of the consideration and therein the Queen is deceived and to prove that the word pro is as good as if it had been in consideration he vouched 43. Eliz. Luttrels case that the word pro implyes a consideration and here the finding of the Iury is that no other security or assurance was given to the
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
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
Serjeant moved that this matter might be specially found Tanfield said the Iury knows our opinion and therefore leave it to them and the Verdict was given that the condition was not broken See Term Pasch that proofes by deposition taken here in a former suite shall be allowed in this notwithstanding all the parties be alive and it was adjourned Note that in Staffords case in the Court of Wards this Term Flemming and Cook were of opinion with Tanfield here viz. That notice ought to be given to the Infant in the Case above-said I. S. was Parson of D. as appropriate and A. is Vicar and the King is Patron of the said Vicaridge and debate was between the Parson and the Vicar this Suite ought to be in the Exchequer for these Tithes and by the Court it may be commenced accordingly by English Bill in the Exchequer or by Action to the Office of Pleas for it is apparant that the King is Supreme Ordinary this was Pasch 9. Jacobi Sir Stephen Leazures case IN Sir Stephen Leazures case upon a charge upon Sir Thomas Gresham deceased Process issued to the Sheriffs of London to inquire what Lands the said Sir Thomas had in London at the time of the debt accrewed and to whose hands c. And the Inquisition found that the said Sir Thomas was seised of divers Messuages in London in four severall Parishes viz. in c. And now the Maior and Comminaltie of London came as Tenants of the premisses and demanded Oyer of the Inquisition and then demurred thereupon and by the Court the Inquisition is insufficient for the words of divers c. are so generall that no exception thereupon may be made nor the party can give no answer thereunto so of an Office found in the Court of Wards as it hath been divers times here used see Carters case Pasch 8. Jac. in the Court of Wards Kitchin against Calvert SEe the Case before fo many Arguments therein at the Bar by Bridgeman Ireland Serjeant Hutton and the Atturney Generall in Michaelmas and Hilalry Jac. And now the Barons argued and first Bromley Puisne Baron argued for the first matter which is when a Church being void the Patron contracts with Parkinson for money to be given to present Kitchin the money to be given by Parkinson and Kitchin not knowing of this Symonie is presented instituted and inducted thereunto whether this be void or not The 2d Matter is admitting that this is void that the Queen presented Covell who died before Institution or admission if this presentation be good to Calvert without a Repeal of the Presentation made by the Queen and it seems to be in both points for the Plaintiff To the first point be said That the intent of the Statute was to cradicate all manner of Symonies and therefore the words are not if any man give money to be presented but they are if any present for money and the Iutors here found 20. l. to be given and nothing for what it was given or to whom it was given for if money be the meede a Presentation is void and therefore if I. S. be Patron of the Church of D. which is void and a stranger saith to me procure the Presentation for A. and you shall have 100. l. and he procured A. to be presented here if the Patron had notice of the money given to me this Presentation is void but otherwise not and in our case without notice of the Parson the Admissor and all which ensued thereupon is void by reason of the Symonie in the Patron and it is void as to the Parson also and if in this Case we are not within the words of the Statute yet we are within the intent cleerely as upon 1. Ed. 6. of Chanteries an estate made for years or for life to Superstitious uses shall be within the intent although not within the words of that Statute as it appears in Adams and Lamberts case Cooke lib. 4. So the Statute of 11. H. 7. should be construed to meet with Cases of like mischief as it appears in Sir George Browns case Cooke Lib. 3. and Panormitane saith that Simonia est Studiosa voluntas emendi vel vendendi aliquid Spirituale vel Spirituali annexum cum opere subsequente To the second Point it seems that the Presentation made by the King to Calvert is good without aid of the Statute of 6. H. 8. cap. 15. for Covell who were the Presentee of the Queeen had nor interest no estate and yet if he had it would be void by the death of the Queen for the presentation is but a commendation and therefore if the Patron present his Villaine this maketh no infranchisement and so if Lessee for years of a Patronage be presented this doth not extinguish his Term. And whereas it hath been said that the Kings Grant cannot be construed to two intents true it is if it be to the Kings prejudice but otherwise it is if it be for his benefit as plainly appears in Englefieldss case Cook lib. 7. See 17. Ed. 3. fo 29. Also it is without question that the King may actually revoke his Presentation as it appears by 28. Ed. 3.47 And this implied Revocation is as good being for the Kings benefit as an actuall or expresse Revocation Dyer 18. Eliz. 348. And it was adjudged in Pasch 3. Jac. in the Common Pleas Rot 1722. one Williams case that an Actuall Revocation or Repeale is not necessary And so it was adjudged Trin. 8. Jac. Rot. 1811. in the Bishop of Chichesters case and therefore the King may make a Presentation to a Church which belongs to him by reason of Wardship under the Seale of the Court of Wards because the presentation is only a Commendation as it was there said and so it was agreed also Trin. 8. Jac. at Serjeants June by Flemming Cook and Tanfield in the Lord Windsors case referred unto them out of the Court of Wards and there it was said by Cook that the King may present by Parol as it appears by 17. Eliz. Dyer and that a Second Administration may be well granted without Repeal of the first and also it seemes that the Statute of 6. H. 8. cap. 15. doth not extend to a Chaplain for he is not a Servant within that Statute nor a Presentation is not a thing within that Statute and moreover in this Case Covel who was the Queens Presentee is not in life and therefore this Case cleerely is out of the Clause of the Statute of 6 H. 8. and so he concluded on the whole matter that Iudgement ought to be given for the Plaintiff Altham the second Baron accordingly The Presentation made to Kitchin is void and the Admission and all subsequent thereupon is void also for the words of the Statute are that if a Presentation be made for monie it shall be void and that the King may present that Turne and therefore the want of privity in the Incumbent is nothing to the
Dyer the Lord Dacres surrendred a patent of an office granted to him before Sir Nicholas Hare Master of the Rolls but the surrender was not recorded nor the patent Cancelled nor a Vacat entred upon the inrolment this is void and shall not be aided now after the death of Sir Nicholas Hare per optimam opinionem in Kemps case Dyer 195. but it will be said that it appears not there that the surrender was made in Chancery and therefore differs from our case but see 19. Eliz. Dyer 355. which is direct in the point where an exchange of land was with E. 6. by deed acknowledged to be inrolled c. but not inrolled it cannot after nor be inrolled nor vest any interest in the Queen either as heir or Purchasor so hereby it appears that before inrolment an estate vests not in the King and he said that he had heard Popham late chief Iustice say that the opinion of the Iudges was that in this case nothing vests in the King until inrolment and for that there was a private Act made in 39. Eliz. to relieve this particular case so the Memorandum makes the record and not the delivery of the patent to be cancelled but the opinion of Davers in 37. H. 6.10 may be objected against me where he saith that if a man make a feofment to the King and deliver the deed in the Exchequer or at the Kings Coffers it is good without inrolment which by the Court is intended for goods and not to a feofment made to the King for this is only the opinion of Davers which I denie to be law and also all this may be admitted for law and yet prove nothing for when the partie surrenders to the King and delivers the deed to be inrolled so that he had done all which in him is to pass the land to the King then it may aptly be said in common speech that the right of the land is in the King because he of right ought to have it after inrolment although he had not the propertie of the land before the Deed be inrolled then if nothing vest in the Queen in the principal case before the patent made in 37. Eliz. the words subsequent in the patent will not help the matter viz. quam quidem sursum redditionem acceptamus per praesentes because the King had taken nothing before and the recital in the patent concludes not the Queen it hath been said that the not making of a Memorandum is the fault of the Clark and this shall not prejudice the partie in so great a mischief but I answer that the same mischief will insue where a man sells land by indenture and delivers it to the Clark to be inrolled and he inrols it not within 6. moneths nothing shall pass by the sale yet this is only the fáult of the Clark but in this case he may have his action upon the case against the Clark if so it be that he had paid all his fees the fame law in the principal case but admitting that yet great mischief will insue if it be so that the estate shall pass to the King before inrolment for then the estate and interest shall be tried by the Countrie and not by the record and then also in what place should a man search to finde the Kings estate and perhaps for want of knowledge thereof every grant of the King will be avoided and this would be a great mischief to the subjects but admitting that this should be a good surrender without a Memorandum or Vacat yet this is not shewed in this case for it appears not here that his intent was to surrender it for although he deliver up his Letters patents yet his estate remaines and then the consideration of the patent in 37. Eliz. being of a surrender of the first patent and also of a surrender of the estate if the estate be not surrendred as well as the patent the consideration is for that false and then the patent is void and to pâ—ove that the estate remains although that the patent be surrendred it appears by Fisher 12. H. 7.12 where Tenant in tail of the gift of the King loses his letters patents his heir is not at a mischief for he may have a Constat and this shall be good in evidence but he cannot plead it and this appears by the Preamble of the Statute of 13. Eliz. cap. 6. Dean and Chapter Lease land this shall be by Deed and in this case although that the lessee redeliver his deed it is no surrender of the estate but he shall not plead it without shewing a Deed of the assent of the Chapter but he shall give it in evidence and good because he had once a Dâ—ed thereof as it appears by 32. E. 3. Monstrance of Deeds and it appears by 32. H. 8. Patents Br. 97. that if the Kings Patentee lose his letters Patents he shall have a Constat and by 32. H. 8. surender Br. 51. and 35. H. 8. tail that if the King give in tail and the Donee surrender his Patent the tail thereby is not extinct so although letters Patents are necessary for pleading of the Kings Grant yet they are not requisite for the essence and continuance of the estate also it is found that the said Patents were restored to be cancelled per mandatum Domini Seymor it is not found what manner of authoritie the Lord S. gave nor found to whom the letters Patents were delivered nor at what time and peradventure they were delivered after the second Patent made and then is the second Patent false because then there was no surrender and this is one of the reasons put it Kemps case 3. Eliz. 195. The second point admitting that there is no actual surrender if notwithstanding that the Patent of 37. Eliz. be good and as to that I say if this Patent be good it is because the Queen had recited the particular estate and therefore is not to her damage or because the second Patent is a surrender in law of the first and the rather because it appears to be the intention of the Queen that the acceptance should be a surrender by these words quam quidem sursum redditionem acceptamus per praesentes and as to the first reason it seems to me that the Queen recites this as a particular estate determined and not as an estate continuing for by these words modo habens et gaudens it appears that the meaning of the Queen was that the Lord Seymor had not an estate continuing in the intent of the Queen at the time of the making of the second Patent but the Lord Chandos case in Coo. 6. fol. 55. seems to impugne me in this opinion where the King made a gift in tail and afterward by Patent reciting the former Grant and also that the Patentee had delivered up the Patent into the Chancerie to be cancelled by vertue whereof he thought himself to be seised in demeasne as of fee
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