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
land by Tort and Covin is void which cases and many other you may see in Farmors case Cook lib. 3. and the 12. Eliz. Dyer fo 294. and as it is said in Twines Case Cook lib. 3. all frauds are covered with trust expressed or implyed and here is an express trust and he vouched also Cook lib. 5. Gooches Case and also Englefields case and Pauncefoots case cited in Twines case Cook l. 3. fo 83. also he said that this conveyance being void by reason of the fraud by the Law it is more clear that it shall be decreed to be void here the Deed being in court and course of equity and therefore he said that it hath been decreed in this Court for equity that if a man outlawed taketh bonds in the name of another that they shall be forfeited to the King also it hath been decreed in Venables Case that where a widdow upon good devotion bad devised great summes of money for the relief and sustenance of poor silenced Ministers and Preachers for not subcribing to the Commons c. to be ordered and paid to them by the discretion of the Executors that the money should be disposed for the maintenance of poor conformable Ministers by the discretion of the Executors and not to them who retused to subscribe for when a thing is disposed to maintain contempt and disobedience in any this ought to be ordered and disposed by the Court to a contrary end and use and so in the principal case in so much that the conveyance was made by Sir Robert Dudley for the maintenance of himself in contempt and for the maintenance of his wife and other uses this by the rules of equity shall be decreed to be void and in regard the King is offended by the contempt he ought to have means to punish It and so he prayed that it may be decreed for the King Hutton Serjeant the same day to the contrary and he argued first that this confidence is as an use at the Common Law which was not forfeitable and secondly admit that this conveyance be fraudulent yet it is not now to be avoided and these are the grounds whereupon he would insist in the maintenance of his conveyance against the King but first as to that which hath been said that at the Common Law a man could not go beyond the Sea without the Kings licence he said that he thought the contrary for it appears plainly by the book 12. Eliz. Dyer fo 296. and F. N. B. cited accordingly that any man may go beyond the Sea to travail except there be a proclamation or a writ of ne exeas Regnum to restrain him so that he agreed that every man was prohibitable before his going or after by recalling but without a prohibition or recalling his departure was no offence but he agreed that if a man be prohibited or recalled that for this contempt his lands ought to be seised and that the King hath interest to dispose of them as it is proved by the president of John de Britanies case in the 19. E. 2. and vouched in the 2. Ma. Dyer 128. and this is also proved by other presidents and authorities as 39. Assise pla 1. where it appears that for a contempt of the Arch-Bishop of Canterbury for not executing of the Kings writ that the King seised his lands and held them during the life of the Arch-Bishop and also Englefields case in Cook lib. 7. proveth that the King hath power to seise and dispose for such a contempt and therefore he would not argue what interest the King should have by such seisure but for the matters which he intended First he thought clearly that this confidence betwixt the Bargainor and the Bargainee was as an use at the Common Law and that cestuy que use should not forfeit this use at the Common Law is directly proved by 11. H. 4. fo 52. where without an express Statute an use was not forfeited as he said and he vouched accordingly 5. E. 4. fo 7. where it appeareth that cestuy que use shall not forfeit the land at the Common Law and the reason is because that it is subject to the forfeiture of the Donees and it is inconvenient that the same land should be subject to several forfeitures at the same time by several men viz. the Bargainor and the Bargainees and he said although that these uses were begotten by fraud as it appears in our books see Chudleys case Cook lib. 1. yet in so much that without an express Statute they were not forfeitable by the same reason a trust or confidence is not forfeitable although they are begotten by fraud without a special Act of Parliament also in out case there are not any Badges of fraud but only as a trust betwixt the Bargainees and that a bargain and trust may be without fraud although the Bargainor continue possession against his Bargainee which is another argument that there is no fraud in the case and the estates after made to the Tenants now in possession viz. Sir Robert Lee c. for the Bargaines were not made by the appointment of the Bargainor but of their own head also he said that if here be any fraud it is matter of fact whereof the Iurors ought to have inquired and the Iury here have found no fraud and to prove that the fraud ought to be found by the Iury he vouched Wardenfords case 2. 3. of Eliz. Dyer 193. 267. where it is also said that although a fraud he found by the Iury yet if it be found specially not to defraud the King but the Creditors then the conveyance shall be good against the King and so he concluded the first point Secondly admit that it was found that this conveyance was fraudulent yet it is not void against the King for it seemed to him it shall be avoided by fraud only by those who have an antient right or antient duty and if in this case there were any fraud this was long time before any title or right accrewed to the King for that was two years after this conveyance and to prove it he vouched Upton and Bassets case cited in Twins case in Cook lib. 3. there it is said expresly that a conveyance by fraud is void only in respect of an antient title see 22. Assise pla 72. accordingly but the Statute of 27. Eliz. makes such a conveyance void to those who have a present right if there were a valuable consideration as is not in our case and therefore we are out of this Statute and also he said that he agreed the case cited of the other part if a man outlawed purchase goods or takes an obligation in trust the King shall have them for this is by the Statute of the 3. H. 7. cap 4. but this concerus not land and therefore we are at the Common Law and as a Statute was requisite to be made to make an use forfeitable which was not forfeitable at 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
and there bought Currants and imported them into England and he recited the Statute of the first of King James cap. 33. which grants 2. s. 6. d. for Poundage and he said that he had paid that and therefore he had refused to pay the 5. s. because it was imposed unjustly and unduly against the Lawes of the land whereupon the Kings Attorney demurred in Law this matter had been divers times argued at the Bar and at the Bench by Snig and Savil Barons and now by Clark and Flemming chief Baton whose arguments I only heard and Clark who argued first this day said that this Case being of so great consequence great respect and consideration is to be had and it seemeth to me strange that any subjects would contend with the King in this high point of Prerogative but such is the Kings grace that he had shewed his intent to be that this matter shall be disputed and adjudged by us according to the antient Law and custome of the Realm and because that the judgement of this matter cannot be well directed by any learning delivered in our Books of Law the best directions herein are presedents of antiquitie and the course of this Court wherein all actions of this nature are to be judged and the Acts of Parliament recited in arguments of this Case prove nothing to this purpose the best case in Law is the Case of Mines in Mr. Plowden Com. where this ground is put that the precedents of every Court ought to be a direction to that Court to judge of matters which are aptly determinable therein as in the Kings Bench for matters of the Crown in the Common Pleas for matters of inheritance and Civil contracts and in the Exchequer for matters of the Kings Prerogative his revenues and government and as it is not a Kingdome without subjects and government so he is not a King without revenues for without them he cannot preserve his dominions in peace he cannot maintain war nor reward his servants according to the state and honor of a King and the revenue of the Crown is the very essential part of the Crown and he who rendeth that from the King pulleth also his Crown from his head for it cannot be separated from the Crown and such great Prerogatives of the Crown without which it cannot be ought not to be disputed and in these cases of Prerogative the judgement shall not be according to the rules of the Common Law but according to the Presidents of this Court wherein these matters are disputable and determinable as for Example an action of accompt lies not by the Common Law against him who had the land of the accomptant by mean conveyance but if one be an accomptant to the King and had land in fee and alien it unto A. who alien it unto B. B. by reason of this land shall be charged with this accompt in 14. E. 3. a Coroner was elected by the Kings writ as he ought to be by the Countie and after be was amerced and because he was not sufficient to answer the Amercement the Countie was charged therewith and that appears of Record here and in 30. E. 3. Rot. 6. as appears also of Record in this Court one William Porter was Magister monetae and had received Bullien of divers Merchants and Coyned it in the Kings Mint and did not restore the Coyne to the Merchants but was insufficient and the King paid the Merchants and inquired of the suerties for the Coyne and it was found that he had none then it was inquired who recommended him unto the King and it was found by whom he was recommended and they who only recommended him as friends were charged with the Debt and if one be outlawed in a personal action and Debt is due to him upon a contract this shall be forfeited to the King and this is ordinary by the Presidents of this Court and yet this seems to be contrary to Law and is against our Books and the Kings Debtor shall have a quo minus against Executors upon a simple contract and therein he cannot release nor be non-suited and I put these cases to prove that the presidents of this Court ought to be pursued and observed although they seem to cross the Common Law and the Books thereof a case was here betwixt the King and Jourden Jourden was receiver and sold his office to one D. and he not being able to pay Jourden for his office at the day limited it was agreed that Jourden should come to the next receipt and when D. received the Kings money that Jourden should take it for his office which was done accordingly after D. was indebted to the King and this matter appearing as above c. Jourden was charged with the money which he had received and as Stamford in his first cap. of Prerogative saith that the King is the most worthy part of a Common-wealth so is he the preserver nourisher and defender of the people and true it is that the weal of the King is the publick weal of the people and he for his pleasure may a forrest the word of any subject and he thereby shall be subject to the Law of the Forrest and be may take the provision of any man by his Purvieour for his own use but at reasonable prizes and without abuse the abuse of which officer hath been restrained by divers Statutes and the King may take wines for his provision and also Timber for his Ships Castles or houses in the wood of any man and this is for publick benefit and the King may allay or inhaunce Coyne at his pleasure for the plentie of the King is the peoples peace and these imposts are not only for the benefit of the people and for the Kings profit but are also imposed many times for the increase of Merchandise and Commerce as the Statute of Aulnageors made in the 2. E. 3. cap. 14. which was made principally to make cloathes more Vendible and so Corporations are granted by the King with immunities and priviledges and to seclude other subjects from them are well limited and good for it is for the increase of the peoples wealth and thereby the Kings revenue is increased and sometimes there is contained in grants a Prohibition to other subjects that they usury not upon the priviledges of such Corporations upon a pain as in the custome of Forraign bought and Forraign sold in London and York and divers customes are permitted to such Corporations as in the Chamberlain of Londons Case Cook 5. and the breach or violation of these customes is a decay of the Corporations and so an impairing of the revenues of the Crown and therefore the King may make them and also give them priviledges and make inhibitions to others not to Vsurp upon them King Edward the third in the sixteenth year of his Raign proclaimed that no man should sell Wool-fels or Leather under such a price so that these staple commodities might not be
debased and this at no place but at Northampton and Anwick and this proclamation was the cause wherefore the Merchant in 43. Assise 38. was punished for using the slight to abate the prices and for presidents in this matter of Impost there are many of antiquitie and first for Wines in 16. E. 1. the custome for a Tun of Wine was 4. s. and 21. and 24. E. 3. it was increased to and 12.13 14. of H. 8. it was increased to 17. s. the Tun and after in the 4th of Mary it was increased to 4. Marks and as it appears by the Records of this Court it was answered upon accompt for all this time according to that rate and it is apparant that no act of Parliament gave this to the King but that it was imposed by his absolute power and shall it now be doubted if it be lawful God defend Prisage that the King shall have one Hogs-head before the Mast and another Hogs-head behinde is not given to the King by any Statute but was only an Impost by the Kings power the Impost upon cloathes in 31. E. 1. was two shillings for a Scarlet and 18. d. for other cloathes in Grain and after in the 37th year of E. 3. it was raised again and in the 37. E. 3. an Act was made for the length of cloathes in the 33. H. 8. it was raised again and in the time of Queen Mary because that the making of so many cloathes made the Impost of Wooll to be of so small value therefore the Impost of every cloath was raised by her to a noble and in the first of Eliz. an Impost was imposed for the overlength of cloathes and it appears in 30. E. 3. that the Impost of one Cloath was for a stranger 2. s. 8. d. and for a denizen 1. s. and all for cloathes another Impost was for Woolfels and Leather the 31. E. 1. it was for Wooll half a Mark for a Sack and after that to 10. s. and in the time of E. 3. to 20. s. and after to 40. s. and after to 3. l. and so of Woolfels and Leather and as the benefit and price of commodities did rise so was the Impost raised and no Act of Parliament for the first imposing and increase thereof and so much for Woolfels and Leather Now for allom upon every kintal of allom was imposed 3. s. 4. d. which was answered upon accompt and in the case of Smith it was not doubted if it shall be paid as here it is but if it were contained in Smiths Patent or not the imposition imposed upon Coles now the 1. s. increase is paid the imposition upon Tobacco was never doubted to be unjust as this is and so much for presidents And now for Statutes the Statute of Magna Charta cap. 30. which was objected that thereby all Merchants may have safe c. to buy and sell without all Tolluets but there is a saving viz. by the antient and old customs the Statute of Articuli super chartas cap. 2. hath a saving in the end of it that the King or his Councel did not intend thereby to increase the antient prices due and accustomed so are all the other Statutes of Purveyors the Statute of the 45. E. 3. cap. 4. which hath been so much urged that no new imposition shall be imposed upon Woolfels wooll or Leather but only the custome and subsidie granted to the King this extends only to the King himself and shall not binde his successors for it is a principal part of the Crown of England which the King cannot diminish and the same King 24. of his Raign granted divers exemptions to certain persons and because that it was in derogation of his state imperial he himself recalled and adnulled the same as to that which was objected that the Defendant had paid poundage granted by the Statute of the first to the King that is nothing to this purpose for that is a subsidie and not a custome for when any imposition is granted by Parliament it is only a subsidie and not a custome for the nature thereof is changed and the impost of Wine is paid over and above the poundage and so should it be here and whereas it was objected that if it were in the time of war it is sufferable but in peace not this seems no reason for the King cannot be furnished to make defence in war if he provide not in peace and the provision is too late made when it ought to be used and as to that which was said that the subject ought to have recompence and valuable satisfaction it seemeth to me that he had for he hath the Kings protection within his Ports and his safe conduct upon the land and his defence upon the Sea and all the Ports of the Realm belong to the King and in this Court there is a president where one in the time of Queen Eliz. claimed to have a Port to himself as his own and it was adjudged that he could not for it belonged to the Queen and it could not be severed and the King only shall have the customes for landing throughout all the land and in the 17. of E. 3. there is a notable president where he reciteth all the benefits which the subject had in his forraign Traffick by the Kings power and protection and therefore he imposed a new Impost the writ of ne exeat Regnum comprehends a probabition to him to whom it is directed that he shall not go beyond the Seas and this may be directed at the Kings pleasure to any man who is his subject and so consequently may he prohibite all Merchants and as he may prohibite the persons so may he the goods of any man viz. that he shall export or import at his pleasure and if the King may generally inhibite that such goods shall not be imported then by the same reason may he prohibite them upon condition or sub modo viz. that if they import such goods that then they shall pay c. and if the general be lawful the particular cannot be unjust and the words in the writ of ne exeat Regnum viz. et quam plurima nobis et Coronae nostrae praejudicialia ibidem prosequi intendis are not traversable by the subject but he ought dutifully to obey his Soveraign as to that which is said that this command to the Treasurer is not sufficient under the great Seal that is otherwise for before the Statute of R. 2. for matter of customes no command was directer to the Treasurer but alwayes the King signified his pleasure to his customers under his privie Seal and this gave authoritie to them to collect customes and the same authoritie is given now to the Treasurer and derived from him to the customers as to that which is said that the conclusion is evil because it is in contempt of the King without doubt it is a contempt for the King may inhibit Traffick into any part of
but the great custom aforesaid which was after increased by Parliament which was called the petit custome it is a great grace in the King to the Merchants that he will command and permit this matter to be disputed between him and his subject and the most fit place is in this Court and the best rules herein are the presidents thereof and pollitick reasons which I shall give and apply them to the particulars before recited and first for the person of the King omnis potestas à deo et non est potestas nisi pro Bono to the King is committed the Government of the Realm and his people and Bracton saith that for his discharge of his office God had given to him power the Act of Government and the power to Govern the Kings power is double ordinary and absolute and they are several Lawes and ends that of the ordinary is for the profit of particular subjects for the Execution of Civil Iustice the determining of Meum and this exercised by equitie end Iustice in ordinary Courts and by the Civillians is nominated Jus privatum and with us Common Law and these Laws cannot be changed without Parliament and although that their form and course may be changed and interrupted yet they can never be changed in substance the absolute power of the King is not that which is converted or executed to private use to the benefit of any particular person but is only that which is applied to the general benefit of the people and is Salus populi as the people is the body and the King the head and this power is guided by the Rules which direct only at the Common Law and is most properly named pollicy and Government and as the constitution of this body varieth with the time so varieth this absolute Law according to the wisdome of the King for the Common good and these being general rules and true as they are all things done within these rules are Lawful the matter in question is material matter of state and ought to be ruled by the rules of pollicy and if it be so the King hath done well to execute his extraordinary power all customes be they old or new are no other but the effects and issues of Trades and commerce with forraign Nations but all commerce and affairs with forrainers all wars and peace all acceptance and admitting for Currant forrain Coyn all parties and Treaties whatsoever are made by the absolute power of the King and he who hath power of causes hath power also of effects no exportation or importation can be but at the Kings Ports they are the Gates of the King and he hath absolute power by them to include or exclude whom he shall please and Ports to Merchants are their Harvours and repose and for their better securitie he is compelled to provide Bulworks and Fortresses and to maintain for the collection of his customs and duties collectors and customers and for that charge it is reason that he should have this benefit he is also to defend the Merchants from Pirats at Sea in their passage also by the power of the King they are to be relieved if they are oppressed by forrain Princes and his Treaty and Embassage and he be not remedied thereby then lex Talionis shall be executed goods for goods and Tax for Tax and if this will not redress the matter then war is to be attempted for the cause of Merchants in all the Kings Courts and of other Princes the Iudges in them are paid by the King and maintained by him to do Iustice to the subjects and therefore he hath the profits of the said Courts it is reasonable that the King should have asmuch power over forrainers and their goods as upon his own subjects and if the King cannot impose upon forrain Commodities a custome aswel as forrainers may upon their own Commodities and upon the Commodities of this land when they come to them then forrain states shall be inriched and the King impoverished and he shall not have equal profit with them and yet it will not be denied but his power herein is equal with other states and so much for the person of Bates the subject it is said that an imposition may not be upon a subject without Parliament that the King may impose upon a subject I omit for it is not here the question if the King may impose upon the subject or his goods but the impost here is not upon a subject but here it is upon Bates as upon a Merchant who imports goods within this land charged before by the King and at the time when the impost was imposed upon them they were the goods of the Venetians and not the goods of a subject nor within the land but only upon those which shall be after imported and so all the arguments which were made for the subject fail and where it is said that he is a Merchant and that he ought to have the Sea open and free for him and that Trades of Merchants and Merchandise is necessary to export before the Surplus of our commodities and then to import other necessaries and so is favourably to be respected as to that it is well known that the end of every private Merchant is not the common good but his particular profit which is only the means which induceth him to Trade and Traffick and the impost to him is nothing for he rateth his Merchandise according to that the impost is imposed upon Currants and he who will buy them shall have them subject to that charge and it is a great contempt to denie the payment and so much for the person I will give a brief answer to all the Statutes alledged on the contrary part with this exposition that the subjects and Merchants are to be freed of Maletolt and this was Toll unjustly exacted by London Southampton and other Ports within this Realm but they are with this saving that they pay the duties and customes due or which hereafter shall be due to the King which is a full answer to all the Statutes the commoditie of Currants is no commoditie of this land but forrain and whereas it is said that it is Victual and necessary food it is no more necessary then Wine and impost for that hath been alwayes paid without contradiction and without doubt there are many drinkers of Wine who are also eaters of Currants that which should be said Victual for the common-wealth is that which ariseth from Agriculture and of the earth within this land and not nice and delicate things imported by Merchants such as these Currants are and are rather delicacy or Medicine then a Victual and it is no reason that so many of our good and staple Commodities should be exported to Venice for such a slight delicacy and that all the impost shall be paid to the Venetians for them and the King should have none for their Commoditie and although that the price be thereby raised this
the Mannor of Caversfield rendring rent and that this rent was arrear and thereupon an Inquisition returned and a scire facias issued to Moil who occupied the land to shew cause wherefore the King should not have this land whereupon he pleaded as Ter-tenant and upon this plea the Kings Attorney demurred but it was misentred as see hereafter but for divers great imperfections aswell in the Kings Commission as otherwise the Defendant ought to have judgement as all the Barons agreed as by the arguments of every Baron upon mature deltheration appeareth but for the reasons of the Barons to the exceptions taken by the Councel see after for they are very good Bromley Puisue Baron whereas the Inquisition purporteth that the Iurors in the County of Bucks have found a foundation of a Priory in the County of Oxon. that is not good by course of Law for if a thing be local the Iurors of another County cannot finde it and here the Commission giveth power only to inquire of things in the County of Bucks and he vouched Plowden in the Earl of Leicesters case upon a Commission directed to White Lord and Maior c. also the Inquisition is that Thomas Banbury Nuper Prior was seised and made a conveyance as is affirmed that is not good also the word Nuper may be intended a 100. years before and so no certainty as appears in Wrothesly and Adams case in Plowden Altham 2d Baron there are three faults in the Commission First is to inquire of a Mannor and lands of the late Priory of Bister in Caversfield in the County of Bucks and by these words no power is given to inquire of any thing concerning the Priory which is in the County of Oxon. and the words in the County of Bucks do defer to all the sentence precedent and not to the word Caversfield only 19 E. 4. fo 16 7. H. 6. fo 8. if A. B. and C. be insula de D. it shall be construed that the word insula hath reference to all the three Towas but if it were in A. B. and C. insula and not in insula then it is otherwise a Commission to inquire of lands of the Prior of Bister is evil without question where Bister is and he said that this may be proved by Pages case Cook lib. 5. also the Commission doth not propose any end wherefore the Iury should be but generally to inquire of the lands of the Priory at the time of the dissolution so that it may be certified to the King by the Inquisition the first fault which is found is that the Priory was founded by the name of the Church of Saint Mary and Saint Egbert without saying the Prior and Covent of c. and without finding of the place of the foundation viz. Bister and this cannot be without assignmend of the place of the foundation viz. Bister also the finding is that one Thomas Banbury then Prior as is affirmed made a feofment c. and this is not good because it ought to be absolutely found or otherwise it is not material also the intent of the feofment is found to be made by the Prior but no livery is found thereupon as it ought although that livery shall be intended in the case of a feofment pleaded by a common person yet it ought to be found expresly in the case of a Corporation and the finding here and that by vertue whereof he was seised as the Law requireth doth not aide the case Snig Baron it seems to me that this Commission was only to inform if the matter had been sufficient to us to give judgement to the King but here being to intitle c. it is not good the Commission is to inquire for the King of the lands of the Prior and this meerly incertain without saying certainly of what Prior and therefore they have no power to inquire of the lands of the Priory also the Iury of the County of Bucks cannot inquire of the name of the foundation of a Corporation in the County of Oxon. for the foundation is matter Local but it seems to me here that the finding by vertue whereof he was seised prout c. shall be intended that livery was made being by a verdict Tanfield chief Baron here is not any demurrer being mis-entred and therefore we have power to proceed to any matter in Law for the purpose in this case was that whereas the Statute of the 27. H. 8. of lesser Monasteries under the yearly value of 200. l. giveth them to the King and this Mannor of Caversfield within this Statute is to be seised as is pretended in this case whereupon this Commission issued to inform the King of this Mannor as parcel of these Revenues for I deny that it is an office of intitling it is only an office of instruction for the Statute of 27. H. 8. dissolves the smaller Monasteries and vests them actually in the King and this is the difference from the Statute of the 31. H. 8. for this Statute is only an Act to Abolish the lands of dissolved Monasteries and therefore this Statute is only to inform for the Statute of 27. H. 8. had intitled the King and he said that the land shall be in the King without office so that it being but an office of instruction this may be good notwithstanding divers incertainties therein contained but the plain and apparant fault herein is because it is not to inquire what lands the Prior had at the time of the dissolution as it ought to be for the words are to inquire what lands the late Prior had but it seems to me in this case that the Iurors of the County of Bucks may inquire of the foundation in another County without doubt this being but to inform and not to intitle and this is not alike mischief to the party for otherwise all Commissions to inform would be quashed and I have seen a Record in this Court where a man of a good family was found to be the Kings Villain regardant to a Mannor in Norfolk and this was done by a Iury in Suffolk and therefore in such cases God defend but that a Iury may finde a matter local in another County also a gross defect is in the Inquisition viz. because it doth not mention that the Mannor of Caversfield came to the King by the Statute of the 27. H. 8. but that the Priory came to the King by that Statute and doth not say that this Mannor was part of the possessions of the Priory at the time of dissolution and for these last matters it is apparent that the Inquisition and Commission are vitious although it be not proper for us as the case is to adjudge it for here is no demurrer joyned for the demurrer is joyned as if it were upon an Information of intrusion and here is no intrusion laid to the charge of the Defendant and yet after the plea pleaded by Moil the Attorney prayed that he may be
give money to a patron to make a promise to him c. and the incumbent payes it such an incumbent is Simoniacus by the Civil Law and so if the incumbent pay the mony not knowing it untill after the induction yet he is Simoniacus and by him if a friend gives money and the Parson is thereupon presented though the Parson if he knew not of the money given yet he shall be deprived of the benefice and this difference was certified by Anderson and Gawdey to the Councel table upon a reference made to them by the King touching the filling of benefices by corrupt means and the Statute of purpose forbears to use the word Simonie for avoiding of nice construction of that word in the Civil Law and therefore the makers of the Act sets down plainly the words of the Statute that if any shall be promoted for money c. so that by these words it is not material from whom the money comes and then in such cases for the avoiding of all such grand offences a liberal construction ought to be made as hath been used in such cases and therefore he remembred the large construction which was made upon the Statute of fines in the Lord Zouches case lib. Cook 3. and so upon the Statute of usurie it hath been adjudged that if money be lent to be re-paid with use above 10. l. in the hundred at such a day if three men or one man so long live in these cases all such bargains and contracts are void within the intent of the Statute as it hath been adjudged in the Common Pleas and so it is in Gooches case Cook lib. 5. upon the Statute of fraudulent conveyances and secret Ioyntures also upon the Statute of Simonie it was adjudged although some of the Common Pleas doubted of it in regard a father is bound to provide for his son and Rogers and Bakers case in this Court was an antient case and adjudged for the Plantiffe and as to the other point it is found by the verdict that the presentation made by the Queen to Covel is not revoked nor admitted which words implie that Covel is still living in case of a special verdict and therefore to argue to that point as if it were found that Covel was living yet he conceived that the presentation without institution and Induction is determined by the Queens death and therefore in 2. Ed. 3. a license of Alienation clearly is not good in the time of another King for the license saith which are holden of us c. and by the death of the King they are not holden of him Fitzherberts natura brevium contra 16 H. 8. the nature of a presentment is explained where an Infant would avoid his presentation and in the principal case the Bishop cannot make any admission upon this presentation of Covel after the Queens death for he cannot do that in any manner according to the presentation because that is determined by the Queens death and therefore it seems clearly there needs no repeal in such a case although it appears by some presidents that repeals have been used in such cases and as to the case 17. Eliz. Dyer 339. that proveth not that there ought to be any repeal for it appears there that judgement was given upon a reason altogether different from our case and that was because a presentation was obtained of the Queen a quare impedit depending by her of which suit she had no notice and for that cause her second presentation was void and that was the true reason of that judgement as it is also put in Greens case Cook lib. 6. and I was present Mich. 17. Eliz. when this case was adjudged and the sole reason which they gave for the judgement was because the presentation by intendment could not take away the Action attached by the Queen for then the Queens grant should enure to a double intent which the Law will never tollerate without express words purporting so much but in our case there is no such double intendment and therefore c. but if there had been an admission and institution pursuing the presentation of Covel although no induction yet peradventure in such case there ought to have been an appeal because in such case it is not only the Queens Act but of the ordinary also interposing which is a Iudicial Act also without question we are out of the Statute of 6. H. 8. for here is no grant made by the Queen and a presentation clearly is not within that Statute and for that other reason the presentation of Calvert is good without recital of the Queens presentation also clearly if there ought to be a repeal in the case yet it is not examinable in this Action of Trespass which is possessorie and for the profits only but it may be examinable in a quare impedit and as to Greens case Cook lib. 6. which hath been used as an authoritie in this case that differs much from our case for there the thing which made the Queens presentation void was contained within the very Charter of the presentation and therefore differed from our case wherefore he commanded judgement should be entred for the Plantiffe and so it was Halseys case touching Recusancy THe case in the Exchequer Chamber touching the payment of the Kings Majesties debt due for the Recusancy of John Halsey as Recusant convict deceased with the lands and goods bought in the name of John Grove and Richard Cox Defendant in this Court that John Halsey was indicted and convicted for Recusancy the 18. day of July Anno 23. Eliz. and so remained convicted without submission till his death who died the last day of March 3. Iac. and after his conviction viz. after the 40. year of the Raign of the late Queen Elizabeth did purchase with his own money divers leases for years yet to come of lands in the Countie of Worcester and Warwick in the name of Richard Cocks for himself in trust and likewise did with his own money purchase certain leases for years yet to come of lands in the County of Hereford in the name of the said John Grove all which purchases were in trust for the Recusant and to his use Margaret Field is his next heir who is no Recusant Iohn Halsey hath not paid 20. l. a moneth since his conviction nor any part thereof these lands and leases were seised into the Kings hands for the satisfaction of the forfeitures due for the Recusancy of the said Halsey 14. August 5. Iac. Thomas Coventrie argued for the Defendant the question is whether these lands which were never in the Recusant but bought in the name of the Defendants in manner aforesaid be liable to the payment of his Majesties debts by the said Recusant as above said or not there are three points considerable in the case First if lands purchased by the Recusant in the name of others in trust are liable to his debt Secondly if the land of a
by seisure of two parts of the land c. then when a Statute gives a new thing which was not at the Common Law and limits a course and means whereby it shall be levied that course ought to be pursued and it cannot be done in any other manner the Statute of 8. H. 6. cap. 12. makes the imbesting of a Record Felony and that this shall be inquired by Iury whereof one halfe shall be Clarks of some of the same Courts and that the Iudges of the one Bench or of the other shall hear and determine it and the case was that part of the offence was done in Middlesex and part in London so that the offence could not have such proceeding as the Statute appointed and therefore it was holden that it should not be punished at all Mich. 41. et 42. Eliz. Betwixt Aggard and Standish the Statute of 8. Ed. 4. cap. 2. inflicts a penaltie upon him that makes a retainer by parol and moreover it is thereby ordained that before the King in his Bench before the Iustices of the Common Pleas Iustices of the Peace Dyer and Terminer every man that will may complain against such person or persons doing against the form of this ordinance shall be admitted to give information for the King and it was holden that the informer could not sue for himself and the Queen upon this Statute for an offence done in any Court not mentioned in that Statute the Statute of 35 Eliz. cap. 1. appoints that for the better and spedier levying and Recovering for and by the Queens Majestie of all and singular the pains duties forfeitures and payments which at any time hereafter shall grow due or be payable by vertue of this Act and of the Act made in the 23 d. year of her Majesties Raign concerning Recusants that all and every the said pains duties c. may be recovered to her use by Action of debt Bill plaint or information or otherwise in any of her Courts of her Benth Common Pleas or Exchequer in such sort in all respects as by the ordinary course of the Common Lawes of this Realm any other debt due by any such person in any other case should or may be recovered wherein no essoin c. Note that this Statute extends not to any penaltie upon the Statute of 28. Eliz. cap. 6. also the Common Law doth not give any means to levie a debt upon a trust and as to the general point it seems that no land can be seised after the death of the Recusant 23. Eliz. cap. 1. enacteth that every person of the age of 16. years which shall not repaire to some Church c. but forbear the same contrary to the Tenor of the Statute made in the first year of her raign for uniformity of common prayer and being thereof lawfully convicted shall forfeit to the Queen for every moneth which he or she shall so forbear 20. l. And that statute doth give no forfeiture at all for Lands And also it giveth no penaltie without conviction so that the death of the party before conviction dischargeth all and so without question it was at that day This last Point seems to be remedied in part by the Statute of 28. Eliz. cap. 6. for thereby if the party be once convicted he shall alwaies pay after without other conviction and this Statute gives also a Seisure but before any seisure Three things ought to concur 1. Recusancy 2. Conviction 3. Default of payment And the last of these was the tâ—ue cause of the seisure viz. That is the contempt of not payment Therefore it was adjudged in Sir William Greenes case that this seisure shall not go in satisfaction of such debt but the King shall hold it as a penalty for the contempt untill the debt be paid so that when a Statute imposeth a penaltie for a contempt as the contempt is personall so is the penalty And therefore the death of the party before that it be excuted or turned in rem judicatam dischargeth all and I shall prove it by the different plea in an Action upon a penall Statute and other common Actions and therefore in debt not guilty is no plea but in debt upon a penall Law it is a good Plea for in truth untill it be adjudged it is no debt but a contempt Michaelmas 41 42. Eliz. betwixt Car and Jones and in debt upon the Statute of 2. Ed. 6. not guilty was adjudged a good plea Trin. 42. Eli between Morley Edwards 2. It may be proved by the different forms of judgment for in common actions the judgment is Quod quaerens recuperet c. But in informations the usuall form is Quod defendens foris faciet 41. Ass which implies that it is not perfect untill the Iudgement and before it is only a contempt and if so then by the death of the party it is discharged Thirdly I shall prove it by Authority that the death of the parties before Iudgement dischargeth aswell the contempt as the penaltie of a penall Law 40. Ed 3. Executor 74. debt lies not against the Executors of a Iaylor who suffers Prisoners to escape 15. Eliz. Dyer 322. in the like Case the opinion of the Court was that an Action did not lye against the Executors of the Warden of the Fleet. but there ought to have been a Iudgement against him in his life time for the Offence is but a Trespass by negligence which dies with the Person 18. Eliz. Dyer An Action brought against the Heire and ruled that it doth not lie for it is a Maxime that no Law or Statute chargeth the Heir for the wrong or trespasse of his Father Also it is to be observed in the Principall Case that the Statute limits the seisure to be by Proces out of the Exchequer so no seisure can be without Proces as it may be upon some other Statute But a judiciall course is hereby prescribed whereupon the Partie may plead with the King for his Land and therefore if that course be not pursued in the life of the party it is too late to pursue it after his death Also the words are that he shall seise all the goods and two parts of the Lands of such Offendors But after his death the goods are not his but his Executors and the Lands are not his but his Heirs and a seisure by way of penalty relateth no higher then to the time of the seisure also the words of the subsequent Proviso explame it further for it it be demanded when the King shall seise two parts it is answered at the same time when he leaveth the third part and when must be leave the third part it is auswered in the life of the Recusant That it may be for the maintenance of his Wife Children and Family and after his death he hath neither Wife Children nor Family for in a Writ of Dower the Demandant shall say that she was Wife and not that she is Wife As to the
the 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
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
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
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
come ceo only of foure Bullaries if this fine and the use of the estate passed thereby shall be directed by the covenant it was the question and it was moved for a doubt what Bullarie that shall be intended whereof the fine is not levied by reason of the incertaintie quaere and it was adjourned Nota that an estreate of divers fines imposed upon several indictments at the Quarter Sessions for several Riots was sent into this Court and the estreat here being mentioned not for what offences the fines were imposed and the records of the indictments were in the Crown office by a Certiorari and the chief Baron Tanfield said that the estreat was insufficient and we ought not to send out Proces upon them because they do not mention the quality of the offence for which the fines were imposed and therefore it may be discharged by Plea yet if the estreat be not warranted by the indictment so that the indictment is discharged for insufficiency in the Kings Bench the Record thereof may be certified into the Chancery and by mittimus transferred hither and we may discharge the estreat and Altham Baron agreed that the partie grieved by such fine upon an insufficient indictment may plead all this matter and spare to remove the Record and if the Kings Attorney will confess the plea to be true it is as good as if the Record had been removed which was not denied An Amercement for a by Law IT was moved for the King upon a lease holden for him that I.S. was amerced 10. l. because he received a poor man to be his Tenant who was chargable to the parish contrary to a pain made by the Township and thereupon Proces issued out of this Court and the Baily distrained and I. S. brought Trespas and it was said by the Barons and ordered that if I. S. will bring an action for the distraining for this amercement be it lawfully imposed or not yet I. S. shall be restrained to sue in any other Court but in this and here he shall sue in the office of Pleas if he will for the Bailiff levied it as an officer of this Court and for the matter Snig said that if I. S. received a poor man into his house against a by Law made in the Township there is good cause of amercement but by Tanfield it is nothing to us that they have a custome to make by-Lawes herein against a by Law made by us also a leet of it self hath no authority to make by Lawes or such an order but by custome it is good Snig and Altham Barons it is good policy to make an order with a pain in a Leet that no person shall receive any such Tenant as shall be chargable to the parish but clearly the Steward cannot amerce one for such a cause without an order with a pain made before Sir John Littletons case SIr Iohn Littletons case was that all the lands of a Monastery were granted unto one Dudley reserving 28. l. rent yearly for a Tenth of all the laid land according to the Statute and after Dudley granted the greater part of this land to Littleton and that he had used upon the agreement made between Dudley and him to pay 20. l. yearly for the Tenth of his part and Dudley had used to pay 8. l. yearly for that which he retained and after Dudley was attainted whereupon his part of the said land came to the King and now the Auditor would impose the charge for all the Tenth upon Littleton but by the Court although the Tenth was Originally chargable and leviable upon all and every part of the land yet it being apparant to them that part thereof came to the Kings hands it was ordered that the land of Sir Iohn Littleton should be discharged before the Auditor prorata and so it was and Littleton to pay only 20. l. yearly Sweet and Beal NOta that in Michaelmas Term 6. Iac. upon a special verdict this case was depending in the Exchequer viz. Anthony Brown devised a term to his wife until the issue of the body of the Devisor accomplish the age of 18. years bringing up the said child Provided that if the devisor die without issue that then the land shall go to the said wife for term of her life paying to the sister of the Devisor 6. l. 13. s. 4. d. yearly which he willed to be paid at two feasts half yearly and that if it be arrear then it shall be lawful for the sister to distrain and to detain the distress until it be paid and the Iury found that the devisor had issue at the time of his death but that the said issue died before he accomplished the age of 18. years and they found also that the rent of 6. l. 13. s. 4. d. payable to the sister was not paid at one day in which it was payable and that no demand was made for it and that Moil Beal who was the right heir entred for the condition broken and made a lease to the Plantiff who being outed by the wife brought an Ejectione firme and Chibborn of Lincolns Inne argued that the entrie of the heir is lawful first he said when he devised to his wife until his heir come to the age of 18. years bringing up the said heir if in this case the heir die within the said age the state of the wife is determined by reason that the education was the cause the land should continue to the wife and the cause being determined by the death of the heir before the said age therefore the estate is also determined and upon that he bouched a case in Mich. 3. Iac. one Collins devised that one Carpenter should have the over-sight and managing of his land until his son should attain the age of 5. years and the son died before he attained the said age and it was agreed admitting that Carpenter had by that devise an interest that it is now determined by the death of the heir to the second matter viz. when it is limited that if the devisor die without issue that then the wife shall have it by that it seems to me that the wife shall not have an estate for life by these words as our case for at the time of the death of the devisor he had issue so that it cannot be said that he died without issue although now we may say that he is dead without issue but in regard that the words of the will are not performed according to the proper intendment of them the Iudges ought not to make another construction then according to the litteral sence the litteral construction being properly the words to bear such a meaning and this as he said may be proved by Wildes case in Cook lib. 6. but more strong is our case because in a case which carrieth the land from the heir there ought to be a strong and strickt and not a favourable construction made to the prejudice of the heir
and therefore he vouched a case between Scockwood and Sear where a man devised part of his land to his wife for life and another part of his land until Michaelmas next ensuing his death and further by the said will he devised to his younger son all his lands not devised to his wife and adjudged that by the said words the younger son shall have only that parcel which was devised to the wife for life and not that which was devised unto her till Michaelmas and yet by Popham it appeareth that his intent was otherwise viz. that all that should go to his younger son so there ought not to be a strained construction made against the heir and so in our case the words being that if he die without issue c. that then it shall go to his wife herein as much as he had issue at the time of his death it cannot be said that he died without issue but that he is dead without issue and this appeareth by the pleading in the Lord Bartleys case in Plowden and he vouched also a case in the Kings Bench 4. Jac. between Miller and Robinson where a man devised to Thomas his son and if he die without issue having no son there it was holden that if the devisee had issue a son yet if he had none at the time of his death the devisee in the remainder shall have it yet he was once a person having a son and so in our case there was a person who did not die without issue and he vouched also the case of Bold and Mollineux in 28. H. 8. Dyer fo 15.3 when a man deviseth to his wife for life paying a yearly rent to his sister and that if the rent be not paid that the sister may distrain it seems to me that this is a conditional estate in the wife notwithstanding the limitation of the distress and he vouched 18. Eliz. in Dyer 348. which as he said proved the case expresly for there in such a case it is adjudged that the devisee of the rent may after demand thereof distrain and yet the heir may enter for the not payment of the rent although it were never demanded so that the subsequent words of distraining do not qualifie the force of the condition although there be there an express condition and in our case but a condition implyed and he said that it seemed reasonable that such a construction for the distress and condition also shall stand as appeareth by divers cases that upon such words the Law will allow a double remedy and therefore he vouched Gravenors case in the Common Pleas Hill 36. Eliz. Rot. 1322. where a lease was made by Magdalen Colledge to husband and wife so that if the husband alien that the lease shall be void and provided that they do not make any under-tenants and to this purpose he vouched the case of the Earl of Pembrook cited in the Lord Cromwels case Cook lib. 2. where the words amounted to a covenant and a coudition and if this word paying should not be construed to be a condition then it were altogether void and idle and such a construction ought not to be made in a will and he conceived that this rent ought to be paid by the wife without any demand upon the pain of the condition and therefore he vouched 22. H. 6. fo 57.14 E. 4 21. E. 4. by Hussey and 18. Eliz. Dyer 348. vouched before and so it was resolved as he said in the Court of Wards in Somings case where a man made a devise paying a rent to a stranger this ought to be paid without demand and he said that the Common case is proved when a feofment is made upon condition that the feoffee shall do an act to a stranger this ought to be done in convenient time without request by the stranger and so here it seemeth although a demand ought to be made by the sister yet the wife ought to give notice to the sister of the Legacy so that she may make a demand and therefore he vouched Warder and Downings case where a man devised that his eldest son upon entry should pay to the younger son such a summe of money here the eldes brother ought to give notice at what time he will enter to the intent that the younger brother may be provided to make a demand Edwards of the Inner Temple contrary First it seemeth that by this limitation the wife ought to retain the land until the issue of the devisor should have come to the age of 18. years for this a time certain and as it is construed upon such words in Borastons case Cook lib. 3. that the Executors there have an interest certain so it should be construed here to refer to a certainty which is until the time by computation that the issue should have attained to 18. years and the rather in this case in respect the devisor had otherwise disposed of the land until the son should have accomplished the said age Secondly it seemeth that the wife hath an estate for life not conditional in so much as the words are not joyned in the case the 18. Eliz. Dyer hath been vouched but that was upon an express condition but here it is by implication and then the clause of distress taketh away the force of the implication which otherwise might be thereupon inferred and therefore in 5. Eliz. Dyer it appeareth that the word Proviso annexed to other words makes it no condition in judgement of Law and so in 14. Eliz. Dyer 311. and he vouched also 18. Eliz. Dyer Greens case that if a man deviseth lands to his friends paying to his wife with a clause of distress this is no condition as it is adjudged Thirdly it seemeth that this summe to be paid to the sister is a rent and therefore ought to be demanded or otherwise in judgement of Law the condition shall not be broken and the 21. E. 4. the case of an obligation to perform covenants c. and a case between Wentworth and Wentworth 37. Eliz. that a demand ought to be made for a rent which is granted in liew of Dower for the wife brought a writ of Dower for the land of her husband the Tenant pleaded that she accepted a rent out of the land in liew of her Dower and the wife replied that the said rent was granted upon condition that if it were not paid at certain dayes that it should be void and that she should have Dower of the land and she said that the rent was not paid at the dayes c. but shewed not in her pleading any demand to be made and therefore it was holden evil pleading for such a rent ought to be demanded or otherwise the condition is not broken and so here Nota that this case was appointed to be argued again but after as I heard the Barons amongst themselves resolved to give judgement for the Defendant upon one point only which was that the estate
in 1. Jacobi and no other conviction ever was and yet de facto he continued a Recusant untill his death and his Land viz. two parts thereof were seised in his life and the King answered of 200. l. thereof which incurred in the moneths contained in the Indictment and now a Writ is issued which supposeth the said Robert to be indebted to the King in 20. l. for every moneth be lived after 28. Eliz. untill 1. Jacobi for his Recusancy which amounted to 4000. l. which Writ also commands to enquire what Lands the said Robert Becket had at the time of his death and thereupon it was found that he had divers Lands c. and upon a Scire facias to the Terretenants to shew cause wherefore two parts of the Lands of the said Robert Becket should not now be seised for the debt of the Recusant aforesaid one Henry Becket as Terretenant or Tenant of the Premisses pleaded that the King is satiefied of all the 20. l. and for all the moneths that the said Robert was convicted to be a Recusant and he vouched the Constat thereof under the hand of the Deputy of the Pipe Office and for the residue he said that by 28. Eliz. cap. 6. it is amongst other things enacted that if any person which hath not repaired or shall not repaire to some Church Chappell or usuall place of Common Prayer but hath forborne or shall forbeat the same contrary to the Tenor of the Statute of 23. Eliz. cap. 1. and hath been heretofore convicted for such offence shall forfeit c. provided that it he hath made submission and been conformable according to the true meaning of the said Statute or shall fortune to dye that then no forfeiture of 20. l. for any moneth or for seisure of the Lands of the same offender from and after such submission and conformity or death and full satisfaction of all the arrerages of 20 l. monethly before such seisure due or payable shall ensue or be continued against such Offendor and traverseth without that that there is any Record besides this Writ to charge the said Robert Becket deceased of or for the summe of 4000. l. towards our said Lord the King c. and so prayeth to be discharged thereof Vpon which Plea the Kings Atturney Generall demurred and Coventry argued that the Plea is good he said that there are three Points to be considered First that if a man be convicted of Recusancy in 28. Eliz. for 10. moneths then passed and de facto continueth a Recusant untill his death in 1. Jac. without other conviction if now the King can claim 20. l. a moneth for more moueths then are contained in the Indictment whereupon he is convicted Secondly admit that the King may have the forfeiture for every moneth whereof no conviction was as well as if a conviction had been then if the King can seise the Lands for the payment thereof after his death no seisure being had for it in his life by the Stat. of the 28. Eliz. or if the power of seisure be altogether gone by the death of the Recusant Thirdly admitting that the King shall have more then is contained within the Indictment if the Debt it self be not gone by the death of the Recusant To the first Point there is no President to be found that any man convicted before 28. Eliz. was charged to the Payment of more then that which was within the Indictment and the words of the Statute of 28. Eliz. contained within this Clause which provides for the payment due since the Conviction do not inforce any construction to the contrary and in this Clause the words being do yet remain unpaid are not proper words but for a thing payable before this Statute for so many moneths whereof he was convicted of Recusancy and the words without any other conviction are to be understood for so much as was unpaid of that contained in the Indictment and the last Clause of this Branch of the Statute hath not the words without any conviction and the other Clause provides that by expresse words for the future time every person who shall be once convicted shall forfeit c without other conviction and it was resolved Hill 4. Jacobi in the Kings Bench between Grinstone and Oliver that the Statute of 28. Eliz. alters and adds three things to the Statute of 23. Eliz. 1. That all the money due for Recusancy shall be paid into the Exchequer 2. This limits a time for payment thereof yearly viz. in the four Terms of the year 3. This giveth a penalty viz. power to seise all the goods and two parts for non-payment but all that is only for that which was payable before the conviction and therefoâ—e the words in the Branch which contains our Case have apt words of construction that he shall pay all due for the paine of seisure for 23. Eliz. gives no seisure but imprisonment if payment be not made within three moneths after judgement and so in our case Conviction ought to precede the duty To the second Point it seemeth that the power of seisure within this Statute is gone by the death of the Recusant for before the Statute of 1. Jacobi the power for seisure was but a penalty that if the party fail in payment of 20. l. a moneth then c. and in all cases upon penall Laws if the party die before the penalty inflicted this shall not be inflicted at all and that this is but a penalty he vouched one Grayes case in 1. and 2. Jacobi to be adjudged accordingly Also the words in this Statute which give the seisure of Land appointeth a levying to be of the 3. part for the maintenance of the Offendor his Wife Children and Family and after his death he hath no Wife so that if it be demanded when the seisin must be the answer is then when a third part may be left for his use which cannot be but in the life of the Recusant Also it appoints that the seisure ought to be by Processe which ought to be in the life of the party by intendment Also the Proviso of the Statute of 28. Eli. saith that if any person shall dye no seisure shall insue or be continued aâ—d out case is within those words for in regard there hath been no seisure in his life therefore after his death no seisure ought to insue and the words which purport another semblance of construction viz. and satisfaction of all arrerages are to be understood only in case where there was a former seisure that is in the life of the party and have reference to the words to be continued and that the intent is so he said that the words are so that the Heir shall pay no more but so much as the Land was seised for To the third it seemeth that in this case the debt it self is gone by the death of the party At the Common Law a penalty shall never be recovered against the
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
Recusant may be seised after his death Thirdly if they shall be charged by the Statute of 1. Iac. as to the first it seems they are not wherein I shall endeavour to prove three things First that such land was not liable to debt by the Common Law Secondly that they are not liable to debts by the general words of the Statute Law Thirdly that they are not liable to debt by any word within the Statute of primo Iac. as to the first he observed that here is no fraud put in the case but that these lands and leases were never in the Recusant so that before that they were conveyed to the Defendants they were not liable to this debt and I alwayes observed that which the common law calleth fraud ought to be of such nature as shall be tortious and prejudicial to a third person and put him in a worse estate and condition then he was before and then he who is so prejudiced in some cases should avoid such conveyances by the common Law 22. Assises 72.43 Ed. 3.2 and 32. the Defendant in debt after judgement aliens his goods and he himself takes the profits yet the Plantiffe shall have them in execution so that if a man binde himself and his heirs in an Obligation and dies and assets descend to his heir who by Covin aliens those assets yet he shall be charged in debt for in these cases the Plantiffe had a lawful debt and such lands and goods before the alienation were liable and that former interest was intended to be defeated by those alienations and therefore they are void but of the other side where no former interest of the partie is wronged there no fraudulent conveyance was void at the Common Law and therefore if Tenant in Knights service had made a fraudulent Feofment to defraud the Lord of his wardship this was not aided by the Common Law until the Statute of Marlebridge for the title of the Lord was not prejudiced or wronged by this Feofment because it was subsequent to the Feofment also after the said Statute the Lord was without remedy for his release for it is agreed in 17. Ed. 3. fo 54. and 31. Ed. 3. Collation 29. and therefore at the Common Law if cestuy que use had bound himself and his heirs in an Obligation and died if the use descended to his heir none will say this use was assets to the heir and so was Rigler and Hunters case 25. Eliz. as to the second point it seems that the general words of a Statute shall be expounded according to the rule and reason of the Common Law and by the Common Law such confidence is not extendible therefore c. Westmin 2. cap. 18. which gives the elegit hath these words medietatem terrae and within those words an use was never extendible by that Statute 30. Ed. 3. because it was not an estate in him and so if a man be indebted for Merchandise or money borrowed and makes a gift of his lands and Chattels to defraud Creditors and takes the profits himself and flieth to the Sanctuary at Westminster or Saint Martins and there abideth by conclusion to avoid the payment of his debts it is thereby enacted that Proclamation shall be made at the Gate of the Sanctuary where such person resideth by the Sheriffe and if such person doth not thereupon appear in person or by Atturney judgement shall be given against him 2 Rich. 2. Stat. 2. cap. 3. 1. Rich. 3. cap. 1. and execution awarded aswel of those lands and goods given by fraud as of any other out of the same Franchise these words are more particular then the Statute of Westminster the second and yet it was doubted if it did extend to executions for debt as it appears by 7. H. 7. and 11. H. 7.27 and therefore in 19. H. 7. cap. 15. an Act of Parliament was made that execution for debts Recognizances and Statutes should be sued of lands in use As to the third it seems that that Statute doth not make lands in use liable to debts the words of the Statute are that the King shall seise two parts of the lands Tenements and Hereditaments leases of Farms of such offendors so that they are as general as the words of the Statute of Westminster 2. cap. 18. and here those lands and leases were not the Recusants for he had but a confidence in them the first clause of the Statute doth not extend thereunto for two causes First in regard that it never was in the Recusant and this clause extends only to such conveyances which are made by any man which hath not repaired or shall not repair to some Church for the disjunctive words do not extend throughout that branch but to the last part thereof viz. that which cometh after the word and for otherwise this would extend to conveyances made at any time without limitation which should be against the meaning of the Act. Secondly this Branch provides what shall be done concerning the King touching the levying and paying of such summes of money as any person by the Lawes of the Realm ought to pay of else to forfeit c. and by the Statutes before made nothing was forfeited but for such time as is mentioned in the Indictment which in our case is but 6. moneths but out of this branch a strong argument may be made in respect that the Statute avoids all conveyances made by Recusants in trust by express words but saith nothing to conveyances made by others to the use of Recusants and therefore this Statute doth not extend unto it if Tenant by Knights service infeoffs his heir within age and dies the Lord may enter upon the heir without suing an action but if a Feofmenche made to a stranger there he cannot enter but ought to bring his Action according to the provision of that Statute because it may be to the use of the Feoffee but no such provision is made for the heir the Statute of 3. Jac. cap. 4. provides by express words that the King shall seise two parts of all the lands Tenements and Hereditaments Leases and Faims that at the time of such seisure shall be or afterwards shall come to any of the hands of the said offendors or any other to their use or in trust for him or her or at his or her dispose or disposition or whereby wherewith or in consideration whereof such offendors or their families or any of them shall or may be relieved maintained or kept c. the different penning of these Statutes proves the diversitie of the meaning thereof this Statute is a new Law which gives to the King this penalty which he had not before and in new manner for it appoints that the partie shall be convicted by Proclamation and that being so convicted he shall alwayes pay the said penaltie until his submission without any other conviction 3. Jac. cap. 4. and also limits a manner how this new penaltie shall be levied viz.