England did not call themselves Kings of Ireland but Lords of Ireland and the Parliaments of England bound them till 2 H. 7. and they are governed by the Laws of England And if a Denizen of Ireland bring an Action in Ireland and it be adjudged against him there he may have a Writ of Error in the Kings Bench here and reverse it and it is no Plea of the Defendant here to plead in abatement of the Writ of Error that the Plaintiff is an Alien which shews that if he be free of Ireland he is free of England as all born in Ireland are Authorities that Ireland is subject to the Laws of England and that their errors are to be corrected here viz. 15 E. 3. Fitz. Record 17. and error 72.34 As 7. 5 E. 2. Fitz. Error 89. Natura Brevium fol. 22. E. See Case de post nati 2 R. 3.12 Kelway 11 H. â— fol. 202. read this case 6. She is married to a Londoner being an Alien It may be questioned whether an Alien be capable of the freedom of London or not and I say he is but there be private orders that none shall be admitted or made free but if de facto he be made free then free he is till he be disfranchised 7. That the Wife of a Freeman of London may by the custom be a sole Merchant 1 E. 4. fol. 6. â—5 H. 6.28 9 E. 4.35 21 H. 7.17 Points upon the Statute 1. WHether such a Feme covert sole Merchant can be a Bankrupt I think she may for 〈◊〉 by the custom she may buy and sell and â—â—e and be sued then she is within the words of the Statute which is getting her living by buying and selling for otherwise the Statute would be deluded and the Londoners Wives only shall buy and sell and trade 2. Whether a Denizen of Ireland be within this Statute Besides the former Arguments see the words of the Statute which are c. But you must intend that she was made Denizen of Ireland by Letters Patents under the Great Seal of England and not of that of Ireland Note an old difference 3. Whether the Wife can be a Bankrupt within this Statute when the Husband because he is an Alien cannot be within the same As if an Alien marry an English woman and they with others rebel the Woman is a Rebel and a Traitor and if she be taken in the Wars she shall be executed in cold blood but the Husband is but as an Enemy and by the Law of Arms may be ransomed 4. But he is afterwards naturalized whether he be within the Equity of the Statute because he is not within the words But tantamount amplifie this with cases of tantamount and of qui potest majus minus potest si unico vincentem te à majori unico te 5. If a Feme Covert sole Merchant elopeing shall be a Bankrupt the difference will be when shee lopes carrying her Goods with her so as she leaves her Husband non solvent and when she leaves him sufficient for if such a Woman be indebted no doubt but the Creditor may sue her by the Custom in the Courts of the City or else he may sue the Husband alone at the Common Law But if he be non solvent her absenting of her self will make them both Bankrupt her as a Merchant by Custom and him to his folly to suffer her 6. Whether her Land shall be sold it shall foâ— it may be it was the credit of her land that procured her to be trusted 7. And it shall be sold after her death by the Statute of primo Jacobi of Bankrupts 8. Whether his Estate which he hath as Tenant by the courtesie shall be sold for the Estate of Dower of a Bankrupts Wife shall never be sold But I answer here the Land shall be sold and he shall not be Tenant by the courtesie First note in many cases where there shall be Dower but yet no tenancy by the courtesie as Payne's Case Lands are given to a Feme and to the Heirs Males of her body and she hath issue a Daughter and dies the Husband shall not be Tenant by the courtesie the same it is if the issue be ripped out of his Mothers belly after her death But here the Husband is particeps Criminis and a Bankrupt and his interest shall be sold for his debt for so were all the debts of his Wives making and his Wife traded in his right and for him if he so please and the Reversion shall be sold for the payment of the same debts for they were hers The first Division Who shall be said a Merchant or other person seeking his or her living by buying and selling 1. AN Inn keeper is indebted and absents him-himself he is a Bankrupt 2. A Feme Covert sole Merchant in London the Baron is outlawed the Feme is a Bankrupt 3. A Feme Covert sole Merchant in London elopes the Husband is non solvent the Feme is Bankrupt and her Land shall be sold 4. An Officer of the Court takes a Lease of the King of the sole Preemption of Tyn he is a Bankrupt for all debts he makes during his Term. 5. Such a Lessee pays not his Debts in seven years after his Lease expires and after he leaves off buying and selling of Tyn yet he is a Bankrupt But if his Creditors give him longer time after he hath given over and cancel their old Assurances and take new he is no Bankrupt 6. A Grasier that hireth Grounds and buys Cattle and feeds them and sells them again is a Bankrupt but if he grase his own Free-hold contrary 7. A Clothier that sets poor People a Work but himself doth nothing but buy Wooll and sell Cloth is a Bankrupt But if he work himself and keep Looms and Servants contrary 8. An Ironmonger in London is a Bankrupt but a Lock-Smith contrary 9. A Goldsmith Hammer-man is not a Bankrupt but a Goldsmith Shoop-keeper is a Bankrupt 10. A Gentleman Adventurer in Virginia is not but to the East-Indies is a Bankrupt 11. An Adventurer into Greenland is not a Bankrupt into Muscovia is a Bankrupt No Adventurers for Discovery and Plantation are within the Statute although they carry with them trifles to exchange and truck with the Savages for their end is not Merchandizing 12. A Nobleman hath granted to him the sole importing of Cards or Glasses is a Bankrupt but a Monopolist that hath granted to him the sole making contrary 13. A Tailor that useth to make apparel to Noblemen or Ladies and to buy the stuffs for them and sets higher prizes in Bills then the stuffs cost is a Tromper and a Deceiver but not a Bankrupt 14. But a Tailor in London whom we call a Salesman that keeps Shop of Apparel to sell ready made is a Bankrupt he is like a Clothier 15. No Handicrafts-man that is in the compass of the Statute of 5 Eliz. is a Bankrupt although he buy his Materials
THE READING UPON THE STATUTE OF THE Thirteenth of Elizabeth CHAPTER VII TOUCHING BANKRUPTS Learnedly and Amply Explained BY JOHN STONE of Gray's Inn Esquire LONDON Printed for B. Griffin C. Harper J. Place S. Keble G. Collins R. Sare M. Wotton G. Sawbridge D. Dring MDCXCV The Reading of John Stone of Grays-Inn Esq upon the Statute of 13th Elizabeth Cap. 7. touching Bankrupts learnedly and amply explained Oratio Lectoris HE was surely liber legalis homo that said Servi sumus omnes But he added Legibus servi sumus omnes ut liberi simus For we are and must be all Servants to the Law if we mean to live free and happy Lives for the Law is the Rule of Right by which all our Actions are to be squared so as if you go not by the Law you go not by Rule or Order but all our doings will be nothing else but alia enormia things out of Rule But as all Men are bound to keep the Law so We above all Men that Profess the Law that Study and learn by it the Art of Right and Wrong are doubly bound not only to serve it and observe it but also to honour it to advance it and to our Powers in all things to maintain it Those that have gone before me in this place amongst other things have most commonly said something in the commendation of the Law but for this time I mean to save that labour and my reason is for that two most worthy Men of this our Age the one famous above all other for his Learning the other inferiour to few for his Wit have both of them in their Epistles in their late Reports written and set down as much of this Argument I mean of the commendations of the Laws and of the Profession and Professors of the Law as I can say and more But to leave then the General let me speak something of this Particular Law which you have heard read upon which I have a little settled my Thoughts and Meditations Commerce that is Trade of Merchandize it is a thing that hath always been so well known to be profitable to all Nations if it be well handled that our fore-Ancestors many Years ago so favoured Merchants that for their benefit a Law was made of purpose called Statutum de Mercatoribus so as where at Common Law if a Debt were owing to a Man he could not by Law recover this Debt without Process and Pleading and yet then no Man's Lands were liable to the Judgments by that Law if once a Man acknowledged himself to be indebted to a Merchant and pay'd not his Money at his day without Process without Pleading without further Suit or Judgment the Merchant shall have present Execution against his Debtor both for Body Goods and Lands It is true that in those days few English-Men were Merchants but Strangers brought their Commodities hither and fetch'd ours but now that course is clean altered for very few come from Foreign Nations to us but we our selves Trade and Traffick into all parts of the habitable World Christendom or Heathenish and into many parts not Inhabited by any Human Creature But as the number of Merchants hath increased so have their Cunning and Crafty dealings increased so as now a days it falls out that we had more need to make Laws against them than for them for it is found to be now a days a matter of more difficulty for Men to get their Debts of Merchants than it was in times past for Merchants to get their Debts of other Men Sed ex malis moribus bonae leges Thereupon within this last Hundred Years there have been many good Laws made against them and especially against them whom the Civilians call Decoctores that is Bank-Merchants for in these three last Ages there have been published amplified and confirmed against them three several Acts of Parliament one in King Hen. 8. time one other in the 13. Eliz. which you have heard read and the last in primo of King James I have not so little discretion as to take upon me to commend these Laws for so I should assume to my self an Authority of the allowance disallowance and censuring of Laws made by those that know better what belongs to those Matters than I do and I shall idly spend the time in praising of them that stand in no need of my commendation only I will say as Thirning saith in another Case in 14 Hen. 4. Our Masters that were before Us and plus scavant que nous have made and published these Laws for my self that have undertaken to read or comment upon one of these Laws I will discover thus much that this Law was never yet Read on in this House nor in any other the Use or Help of which I could not by any means obtain but you may say to me hereafter I need not tell you this for as Sir Tho. More answered a bad Poet that underneath his Verses had written Raptim scripsi stulte quid hic scribis Why dost thou say of thy Book Raptim scripsi nam liber hoc loquitur te reticente tuus so I shall make it appear to you plainly before I have done that I had no help in these Matters for if any wise or grand learned Man had been of my Council I should never have gone so badly thro' my business But I have an ease of one thing that much troubled a Gentleman of a Noble Family who being to publish a Book said nothing troubled and terrified him so much from publishing his Work as his friendly Foes expectation I have an ease of that for you all know my weakness so well that I am sure you expect nothing from me more than ordinary Matter I pray God I may go well through with that and there is another thing that easeth my Mind as much on the contrary part which I learned of a worthy Gentleman not many Years ago that supply'd this Place before me for said he then and so say I now I will do my best endeavour to please you all but as he said further so say I that I have absolutely set aside this vain hope or impossibility called Expectation to please all But I hope this and no more that my Friends will make the best of the worst And I must ask pardon of you all in one thing which is this all the most Excellent Poets and Eloquentest Rhetoricians and many great Historiographers in all their best Works they bring in always one Man that goes from the beginning to the end of their Discourses whose Famous Vertues and Noble Acts grace their whole Work But so much the Law differs from their Acts that I must be enforced to the quite contrary for in every Act and in every Scene that is in every Division and in every Case I put I must bring in a running Tromper and Imposter a Bank But I shall desire you to respect rather the goodness of the Law than the
of Wight is parcel of Hamp-shire and Wales and Ireland are parcel of the Realm for Writs of Errour lie c. And I think it is very true Hollinshead description of Britain fol. 16. b. that the Isle of Man was then no parcel of the Realm for the first mention thereof in any Chronicles is the same year that England was Conquered by the Normans for when Harold had at Stainford-Bridge Conquered another Harold that was King of Norway one Gordard the King's Son of Ireland fled to the Isle of Man in time Conquered it and made himself Lord and Landlord of all the Isle So as to this day there is not a Free-holder in that Island but all are Tenants to the King of that Country It is about thirty miles long and fifteen miles broad it is not governed by any written Laws or Courts of Record but all their Controversies are ended by Arbitrators whom they call Deemsters When King John Conquered Ireland he sent Forces into Man and wasted it all but seated no Government there 1240. One Harold of the Norway Line was received and was invested in the Kingdom of Man by the King of Norway and yet afterwards he was made Knight by the King of England 1250. Or thereabouts in King Ed. 1. time Alexander King of Scots having Conquered all the Islands either by Strength or for Money amongst the rest brought the Isle of Man under his Dominion the old King's Daughter sued to Edw. 1. as to the Supream Head of Scotland the Answer Sequatur coram Justiciariis de Banco Regis ut Justicia Edw. 2. granted it to Piers Gaveston but in Anno 1393. William of Mountacute by strength won it from the Scots as Thomas of Walsingham saith and sold it to William Scroop he was attainted and so it came to Hen. 4. The King of England he granted it to Henry Peircy to hold it by carrying before the King Lancaster's Sword but presently he was attainted and the King granted it to Sir John Stanley and so it came to the Earl of Derby Seman's Case 5. Reports A Man's House is his Castle and his Castle is his House Points upon the first Case 1. IF Tenant for years may attorn before Entry 21 H. 7. One makes a Lease for years and before the Lessee enter the Lessor releases to him the release is void One bargains and sells his Land to another and before the Deed is inrolled he attorns to the grant of the reversion and after the Deed is inrolled and the Bargainee enters 21 H. 7.28 H. 8. Dyer Debt for Rent lies before entry of the Lessee Litt. Lord and Tenant the Tenant makes a Lease for life the Lord grants the Seigniory to the Tenant for life in Fee the Tenant ought to attorn yet he shall not hold of the Tenant for life during his life 28 H. 8. Brook Tenant for twenty years makes a Lease for ten years Tenant for ten years attorns it is good 20 H. 6 7. A Seigniory is granted by Deed to one for life the remainder in Fee Tenant for life dies before attornment c. contrary if it were by Fine 11 H. 4.18 One who hath nothing in the Land must attorn as Tenant in Dower who hath assigned her Estate 2. The reversion of Tenant in tail is granted he commits Treason and attorns and is attainted 12 E. 4.3 Tenant in tail shall not be compelled to attorn but 15 E. 4.13 if he attorn voluntarily it is good Nor Tenant in tail after possibility c. 46. E. 3.13 39 E. 3.20 3 H. 6.12 5 H. 5. Attornment 17. One makes a gift in tail rendring Rent the Donor by Fine grants the Rent the Tenant in tail must attorn 8 H. 5.10 Tenant for life grants his Estate upon condition the Lessor grants the reversion Tenant for life attorns and after performs the condition yet the Attornment is void But all the question is upon the relation of the Office and this shall not vacate the Attornment for it shall not relate for the mean profits of the Land Sir VVilliam Fleetwood's Case Cook lib. 8. by the same reason if Rent were reserved it were well paid and well received and sufficient to invest the reversion in the Grantee 3. Adventurer to the East-Indies is within the Statute 4. Gardian of a Ship is within the Statute The Chancellor hath authority to award a Commission but not to grant Supers And therefore death of the King or a new Commission leaving out the old Commission may be but no Supers If the King present to a Benefice above 20 l. the Chancellor cannot make a revocation but as well in our Case as in that Case by Warrant under the Signet Privy Seal or Seal Manual the Chancellor may award Supers 6. Denizen of Ireland Points upon the Third Case 1. TEnant for life the remainder to the right Heir of I. S. makes a Feoffment in Fee upon condition and enters for the condition broken who shall enter for the forfeiture The Feoffer shall not enter for all is out of him by the Feoffment and he hath nothing but a possibility The right Heir of I. S. shall not enter for his remainder is destroyed The first Question is upon the Statute of W. 2. cap. 25. Whether if Lessee for years make a Feoffment by Livery within the view the Feoffer or Feoffee or both of them or neither be Disseisors 2. Upon Baron and Feme whether a Feoffment without Deed to the Baron and Feme and Livery only to the Feme invests any thing in the Husband 3. Upon the matter admit they are both Disseisors whether the release made to the Husband shall exclude the Wife it shall but in this Case where Tenant for years enfeoffes two and the Lessor releases to one he shall not hold out his Companion 4. Baron and Feme are Joynt-Tenants of a term and the Baron is made King what is become of the term and so of Freehold Whether the King shall have all or the Queen all or they remain Joynt-Tenants or Tenants in Common they are Tenants in Common 5. A Feme commits a Disseisin to the use of her and her Husband and the Husband is made King and the Disseisee releases to the King what is wrought if he can agree to the Disseisin being King 6. A Feme Covert Alien purchaseth the Husband is made King and Office is found 7. A Feme Covert purchaseth the Husband is made King if he can waive Points upon the Statute 1. IF one born in the Isle of Man is within the Statute 2. If Adventuring to Virginia is Merchandizing 3. If an Inn-keeper be within the Statute 4. If going to the Isle of Man be a Departing 5. If keeping of a Castle be a keeping of his House The Second Division Who shall be said a Subject born of this Realm or of any of the late Queens Dominions or Denizen 1. A. and B. Disseise C. who in consideration that A. at his request hath
in Chancery Feme Tenant for life of a Copy-hold the Lord grants the Reversion to three the Baron Surrenders to one of them who first dies there the Lord would have kept the Land as occupant during the Husbands life 9 Eliz. Dyer 267. But it was decreed that if the Husband and Wife would surrender to the Surviving Lessees in reversion the Lord must admit them or else avoid the possession So if the Lord will not admit the party to whose use the party shall have the Lands if a man surrender to the use of his last Will and Testament the Lord shall not have the Land but the Tenant during his life 3. But before I go any further let us consider of this Lease it is by a Surrender upon Condition and he in reversion surrenders to anothers use and the Condition is broken My Question is whether he in reversion shall enter for the Condition by the Common Law he cannot then may he enter by the Statute of 32 H. 8. Cap. 34. of Conditions there be divers Statutes which reach Copy-holds though they be not named Heydons Case lib. 3. Copy-holders are Lessees within the Statute 32 H. 8. of Monasteries The Statute of Cui in vita Receipt quod ei defortiat Coke li. 4. Kite per Wray Copy-hold estate is within the Statute of Champertie and Maintenance 32 H. 8. Cap. 9. Dean and Chapter of Worcesters Case Coke li. 6. Copy hold is within the Statute of 13. Eli of Leases by spiritual persons Lands usually let c. Lillingstones Case adjudged 27. Eliz. That if the Lord infeoff the Copy-holder to anothers use that the Copy-hold is saved by the Proviso in the Statute of 27. H. 8. Margaret Podgers Case A Copy-holder is bound by Fine and 5. years The general rule is layed down in Heydons Case That all Statutes that may be for the good of the Copy-holder shall extend to them therefore I am of opinion that such a Grantee shall enter for non-payment of rent or for doing of waste as the words of the Statute are For it is for the good of the Copy-holders that their Farmers be bound to pay their Rents keep their Tenements in repair I should make small question of this if the Lease were made by license for then it is a plain lease at Common Law and an Ejectione firme will lie But here the Lessee comes in by the Lords admittance but that is answered by my Lord Cook when he is once admitted he is in immediately from the Surrender and in the Per. 4. But this Condition is for waste and it is broken whether is there a forfeiture to him in reversion or a forfeiture to the Lord of the estate in fee simple It is to the Lessor not to the Lord wherein I fall again upon the difference when it is by License and when by Surrender for I take him to be as if he had a particular estate with a remainder over In Podgers Case fo 107. Si cop pour vie sit semble al case del Duke of Norff. Points upon the Statute A Merchant being a sufficient man departs the Realm and beyond the Seas becomes non solvent and so refuses to return although he be served with a privy Seal to return Here be two Questions First whether he be a Bankrupt for not returning For he is not within the Compass of the Statute of departing the Realm The next Question is admitting him to be a Bankrupt Whether the King shall have his Goods as the goods of a Fugitive or else whether they shall go to satisfy the Creditors For the first I think he is a Bankrupt and although he be not within the compass of these words depart the Realm yet it is plain he is within these words absents himself for although his departure was no offence either to the King or his Creditors For Merchants both by the Common Law and notwithstanding the Statutes of 5 R. 2. Cap. 2. or the Statutes of 13 Eliz. might depart the Realm without license except the King as it is in Natura Brevium fol. 85. had made proclamation to the Contrary Yet the King not only by the Statute but by the Common Law as he may forbid a man to depart so he may send for him at his pleasure to return And that is proved by the express Book of 2 3 Phil. and Mary Dyer fol. 128. Where it is said That if he be commanded to return either by the privy Seal or the great Seal and refuse his Lands and his Chattels shall be siesed into the Kings hands and for that a President was found in the Exchequer where in Anno 19 E. 2. It was William de Brittains case although it is true as I said the first departure is no offence according to the Book of 13 Eliz. D. fol. 296. But then admitting he is a Bankrupt and admitting that by his refusal to return he hath forfeited all his Goods and Lands to the King The Question is whether the King or the Creditors shall be preferred And I take it the Creditors shall be preferred Yet He agree the rule is that when a title falls to the King and a Common person both at once the King shall be preferred Dame Hales Villain and Ideot Priority and Posteriority 5 E. 3. But I rely upon a Case which was ruled upon a Trial by my Lord Cok. 12. Jac. in t Newman and Martin ou Martin fuit adjudge Bankrupt because he was beyond the Seas c. 2. Points upon the Statute One hath the freehold and another hath the Copy-hold of one onely acre severed from the Mannor this is plain as it is in my Lord Cokes 4. reports in Case This Copy-hold by no means can be transferred from one to another But now our question is Whether this Copy may be sold by Commissioners I say Parliamentum potest omnia By Act of Parliament it may be sold And here the very words of the Parliament are That the Commissioners may sell his Copy-hold estate The Law was taken before Corbets case was first argued That it was impossible to cut off perpetuities yet there were divers before that were cut off by Act of Parliament and they all that argued for the perpetuites agreed that by Act of Parliament it might be done By the Common Law a thing in action cannot be transferred as a debt upon an Obligation Yet by the Statute of Bankrupt Jacobi primo we see it is done every day But it will be objected that the Statute goes on and saith That the Vendee shall compound with the Lord for the Fine and be admitted Now if there can be no admittance then no sale and it shall be intended such Copy-hold whereof admittance may be And in Dr. Bonhams case divers cases are put where divers Acts of Parliament are void and divers others construed directly contrary to the words But out of that Case I will prove this to be good for first this Act saith The
I consent to it I am a Disseisor Tenant for Years enfeoffes two and the Lessor releases to one of them if he shall hold his Companion out 27 E. 3. cap. 9. gives an Ass of novel dissm to Tenant by Statute Staple against him that outs him as against a Disseisor yet he hath no Free-hold for 1 E. 3. a quid juris clamat lies against him although he be but Disseisor fictitius yet at the election of the Disseisee he is a Disseisor in Law as 7 E. 4. the Vouchee is but tenens fictitius yet a release is good to him If Tenant for Years infeoff two and the Lessor brings assise against one he shall not plead that his Companion is also Tenant not named for by the Statute of 3 E. 1. de Conjunctim feofatis he must slew of whose Feoffment which if he do he overthrows his own Estate and must plead himself was a Disseisor which the Law will never allow for 1 E. 4. fol. 7. no man shall be suffered to say that he himself was a Disseisor Coke Beverlies Case 4. Rep. To stultifie himself Herl 5 E. 3. non sanae memoriae inblenisht himself 35. Ass 10. It is true that in respect of themselves they are in by Feoffment and Title in respect of the Lessor they are Disseisors then the question is who shall be in election and who shall interpret how this release shall work the Lessor or the Lessee or the third Person It is probable to say the Lessor for cujus est dare c. and H. 7. If one Man be to pay two Sums at one time and place and pay but one it is in election and interpretation of the Payer and not the Receiver which sum was meant to be payed It may be said the release c. for the Party to whom a Deed is made if it inure to two intents shall c. as 7 H. 6. a Feoffment may be used as a confirmation 15 Eliz. D. release and grant of a Rent But I conclude the third Person shall take benefit c. First for the reason that in t se c. But they are Disseisors not at Common Law but by Statute for the Benefit of the Lessor of which Statute he may take benefit if he please or waive it 3 E. 4. 21 H. 7.32 19 Eliz. D. Alien and Denizen challenge medietatem linguae so here he hath his election to make him a Disseisor by bringing his Ass or a Tenant in by Title by the release Baron and Feme Disseisors and a release to a Baron whether shall this inure to the Feme for they are seised not by parts but by intireties it shall go all to the Husband for flagitiosae rei nulla est societas it is feodum princip commiatem latronum The question hath been if a Feme sole be a Disseisor and marry whether the Husband be a Disseisor or not 6 E. 3.42 he is not for in a Writ of Entry sur disseisin against him and his Wife he had the view but in our case I take it that if no other thing had happened between the Disseisin and the Release the Husband should have had all The Husband is made King the question is Baron and Feme are Disseisors the Baron is made King the Disseisee releases to the King what is wrought First when Baron and Feme are Joyntenants by Disseisin by Title or by Disseisin all is one and the Husband made King whether do they remain Joyn tenants or else they are Tenants in Common Or else hath the King all Or the Queen all I hold them to be Tenants in Common although this case can be matched or compared with no case of the Law wherein the alteration of the Persons only shall change the Estate of the Parties without making of any new conveyance of the Land 32 H. 8. Brook Deraign 22 H. 6.2 A Feoffment to an Abbot and I. S. they are Tenants in Common but a Feoffment to A. and B. and A. is made an Abbot all shall survive to B. So if a Feoffment to A. and B. and A. acknowledgeth himself Villain to I. S. this alters nothing till I. S. enter but whatsoever the King hath before he is King or whatsoever descends to him or he purchases after he is King he holdeth all in jure coronae suae Angliae Caluins Case ex parte matris Barkley's Case Gavelkind Lancaster Partition in t sorores Queen Eliz. Queen Mary Queen Katharine Ferdinando's Daughters So as the King's possession alters the very nature of the Land and so makes him and his Wife Tenants in Common And that it makes her as it were a Feme sole I need vouch no authorities who all know it in Experience 18 E. 3. fol. The Queen alone brought a Quare impedit 49 E. 3.4 Cavendish the King may give Lands or Goods to the Queen 9 H. 6.13 Margery Parkers Case 14 H. 4.67 Sci. Fac. by the Duke of Suffolk against the Queen to repeal the Patent whereby the King had granted to the Queen the Land of the Duke's Father Tirwhite In all times a Precipe hath been brought against the Queen for she hath always been a Person exempt notwithstanding the Coverture so both their Persons being changed c. it is as if the King were Dead Then have I driven it to this pass that the release can work but to a Moiety the question being whether it work for all or for a Moiety or none that it should work for none If a Feoffment be made to the Wife and before agreement or disagreement the Baron is made King I say he comes too late now to agree or disagree no otherwise then if he had died Then the question is this One makes a Disseisin to the use of I. S. and he is made King can he now agree to the Disseisin The rule is The King cannot be a Disseisor it is true that in times past he might 20 H. 3. Ass 431. Non habet ingressum nisi per Disseisinam quam Dominus Rex facit quaerenti dum fuit infra aetatene in Custodia Comitis de S. and the Tenant saith Non habet ingressum per Disseisinam quam Rex fecit sed habet ingressum per judicium curiae c. But at this day the Law is altered 22 E. 3.37 23 E. 3. Entry 11. If the King Disseise one and makes a Feoffment the Disseisee shall have a Writ of Entry neither in the per nor in the post quam Dominus Rex fecit See the Book 1. H. 4. cap 8. It was doubted what remedy one should have but the Statute is That if the King enter and grant the Land of another if the Grantee enter the Tenant shall have an Assise and trebble Damages against the Grantee And by the same reason he may not agree to a Disseisin done before for till agreement the Disseisor was Tenant and nothing in the King as 2 H. 7.16 15 E. 4.15 If you will say nothing
to Prison within the Statute The Admirals Jurisdiction is limitted by the Statute of 13 R. 2. cap. 5. that they shall not meddle with things done within the Realm scil this Realm 15 R. 2. cap. 3. de South les points 2 H. 4. cap. 11. gives an aection and double damages There was a Case in the Common Pleas. I take it the Admiral hath no Jurisdiction to hold Plea of a thing done upon the Land in Ireland for he is Admiral both of England and Ireland so the King hath his Justices there for to give justice for trespasses and offences there done first for that these Statutes are in force in Ireland as all other are which were made before 1 H. 7. And a Prohibition will lie here in the Kings Bench if they hold Plea of a thing whereof they have no jurisdiction although they cannot hold Plea thereof themselves as we see in the Orphans Case in Coke li. 5. and these Courts ought to respect them of Ireland as subordinate to them for 34 Assises Errors here upon a Judgment there 31 H. 8. Bro. Prohibition 17. A Prohibition lies against the Admiral when he supposeth a thing to be done upon the Sea which was done upon the Land 8. The Parishioners detain their Tythes The Question is A man is presented by Simony the Statute is the Presentation the Institution and Induction are all void But it is to give title to the King to present But to the Parishioner he is dominus pro tempore as if he had been meer laicus yet Sacraments ministred by him are of force The Church and the Minister are compared to the Husband and Wife A woman is married to one Husband and in facie Ecclesice she is afterwards married to another as the Priest is actually in facie of the Country inducted 17 Ass 32 H. 6. The Feme with her second Husband levy a Fine none can avoid this Fine but the right Husband no more can any displace the Simonist but the King And a Prohibition hath been awarded against a Parson supposing he was a Simonist and upon advice and consultation the Parson Closes B. ver Simony in the Exchequer another presented by the King and yet all one for the mean profits 9. The Grantee presents to the first Benefice question whether I grant one Primam advocationem proximam he presents and his Clerk is instituted and dies before induction whether his turn be served It is 38 E. 3.36.6 vide lib. 10. That Commissioners here may sell a Bankrupts Goods in Ireland and Irishmen may sue the Commission 11. The first is within the express words of the Law scil being also a Subject born The second is proved by the Case of the Merchants of Waterford 2 R. 3.11 An Act of Parliament in England shall not bind men of Ireland for their Lands but for things transitory it shall as the Case was there for shipping of Wools from Waterford to carry to other places than Callis Also a man attainted here of Felony or Treason shall lose his Lands in Ireland My Lord of Essex and Ororkes Case 12. An action of debt upon the Statute by the Statute of primo Jac. which gives not only all things in Action but also gives an Action to the Assignee in his own name but he must declare specially 1. A. makes a Lease of a Rectory to the King for another mans life and grants the reversion to B. a Merchant to the use of B. and C. the King grants his Estate to D. E. enters and marries with the Merchant C. dies D. releases to B. who being non solvent keeps his House the Tythes are sequestred for not repairing of the Quire the Creditors grant a Letter of License to B. for six months E. dies D. enters he for whose life dies B. renders himself to Prison for a Fine assessed before the High Commissioners six months past B. Is a Bankrupt within this division and the Moiety of the Rectory shall be sold and all the goods sequestred 1. The King tenant pur auter vie the lessor grants the reversion if good without Atturnment It is good 2. A grants to B. to the use of him and C. if they are Jointenants or Tenants in Common they are Tenants in Common 3. Tenant for life is disseised by a Feme sole she marries him in the reversion the disseisee releases to the Husband it is good to extinguish his right 4. What is wrought by the occupancy nothing 1. If a Bankrupt procures a Letter of License for six months and within the time is a Bankrupt again if he shall be a Bankrupt ab initio He shall be 2. If Imprisonment by the High Commissioners is within the Statute It is 3. If the Goods of a Bankrupt sequestred shall be sold They shall 2. A. Devises 20 l. to B. and C. and 200 Acres of Land to D. and E. his Executors D. proves the Will E. wastes the assets and dies D. a Merchant makes a Feoffment of 99 Acres to F. D. is non solvent and outlawed in Ireland B. and C. joyn with the Creditors in suing a Commission D. Is a Bankrupt within this Division and 101. Acres shall be sold and B. and C. shall be relieved 3. Tenant of the King makes a gift in tail and dies having issue two Daughters within age the Donee makes a Feoffment to Coparceners office is found and the Land being seised for the King he grants it to H. a Merchant as long as it shall be in our hands H. marries the younger and is non solvent and suffers himself to be arrested at the sute of a Son born the other Daughter dies H. confesseth the action and is imprisoned in execution for the damages the Commissioners sell the Interest of H. All this is found by another office H. Is a Bankrupt within this Division and the Vendee shall have an Ouster le main 1. Discontinuee makes a Feoffment to issues in tail within age if they are remitted for they are not Tenants in Common but Jointenants 2. Tenant of the King makes a gift in tail and dies his Heir within age the Discontinuee infeoffs the Infant if he shall be in Ward because a Purchasor notwithstanding the Remitter 3. Tenant in tail discontinues hath issue a Daughter within age and his Wife with Child with a Son and dies the Discontinuee infeoffs the Daughter the Son is born if he shall have the benefit of Remitter 4. If the Interest of the King by an office shall be devested by another office without Petition or monstrance de droit 5. If a Merchant being a Discontinuee confess an action of trespass at the sute of the issue in tail and is taken in execution if it make him a Bankrupt 4. Grantee of a next avoidance presents A. by parol to a Benefice of 5 l. value per Annum he is Instituted B. a Merchant and Farmer in Ireland and Indebted there by agreement with the Grantor pays 10 l. to the
opinion that after the death of her Husband she shall be in bondage again quod Burton negavit but if she marry the Lord then by all she is infranchised for ever Britton fol. 78. She is infranchised for ever Natura brevi B. 78. G. I will conclude with the first authority by Fitzherbert Brittons opinion seems reasonable if she divorce not her self or acknowledge not her self in Court of Record in favour of Liberty and because she and her Husband are but one person in Law and of the same condition with him There be divers things favoured in Law as Womens dowers the King Lords Holy Church ancient Records Devises Infants Purchasors and possessions But next life Liberty of all things is most favoured 18 E. 4.6 No amercement lies against the Sheriffs return yet in a writ of Libertate probanda if the Sheriff returns that he hath no wrît of nativo habendo depending before him one may offer the contrary in favorem libertatis Quia propensiores esse debemus ad liberandum quam ad obligandum It hath been made a Question upon the Statute 39 Eliz. that appoints the Lands Tenements and Hereditaments of Accomptants to be sold which they had at the time when they fell into Arearages whether if the Accomptant shall manumit a villain he shall be nevertheless sold and the best opinion of him that read upon the Statute in this place was that his liberty could not be revoked for here were neither Lands Tenements nor Hereditaments and so here 27 Assizar Enfranchisement for a time by act in Law but if the Lord will manumit his villain for a day by his voluntary grant he is at liberty for ever The Tenant dies without heir the Question is this A Lord is a Bankrupt and dies a Tenancy escheats if the Seigniory or the Tenancy shall be sold I take it as I have concluded the Tenancy that is the Land shall be sold first see the words of the statute Primo Jacobi The Commissioners may proceed in the execution of the Commission in such sort as they might have done if the party Offender were alive this makes an end of the question for if he were alive and the Tenancy escheated the Land should be sold And therefore I shall not need to put you Cases at Common Law where the Tenancy escheating shall be bound to that where the Land was tyed 6 H. 4.1 Tenant in tail discontinues and dies and leaves a Seigniory to descend to the issue in tail a Tenancy escheats in a Formedon by the issue the Tenancy shall he Assets 14 H. 8 4. Fitzherbert cestui que use of a Seigniory a Tenancy escheats the Feoffee shall hold the Land to the use of the Feoffer 46 E. 3.4 Tenant in tail of a Seigniorty a Tenancy escheats Tenant in tail discontinues and dies without issue the Donor shall have a Formedon of the Land 3. A Commission is awarded D. is felo de se the Question a Commission is awarded and the Bankrupt becomes felo de se Office is found if the Almoner shall have his goods or the Commissioners may sell them for the Lord Almoner hath all the goods and chattels of Felons of themselves and all Deodands as appears by our Books and his Charter which I have seen 6 E. 6. Dier fol. 77. The King leases Richmond fee with all Deodands and after grants to the Almoner the term expires the grant to the Almoner void because the other lease was not recited 2. Mar. Dier fol. 107. The King grants to the Archbishop of Canter Deodands in D. and to the Almoner all in general Hales is felo de se Plow Dame Hales the Bishop is attainted the King shall have the Lease It is true as it appears in Dame Hales case That when two titles come together that is the Kings and a subjects the Kings shall be preferrd As if a villain be a fool natural the King not the Lord shall have him If a villain be felo de se the King not the Lord shall have his goods Then a Bankrupt is felo de se shall the King or the Creditors have his goods I think the Creditors For if the Bankrupt in life had no authority to dispose them as it is in Tibnabams Ca. much less shall he dispose of them by his death And admit the Almoners Patent were before the Statute of primo of the King yet both the King and the Almoner by Act of Parliament have given away their title to the Creditors 4. I have already argued that the heir of the Bankrupt is in by descent now the Case is he is within age and an office is found and that the Land is held of the King in capite the Question and the hardest question in my Case is whether after an office of all this matter found the Commissioners may sell And I think they may For this office finding the whole matter notwithstanding a tenure in capite a dying seised of the Tenant and the minority of an heir is found yet nothing vests in the King For when an Act of Parliament shall appoint the Land to go another way and the course taken according to the Statute is found in the Office the King his Officers in the Law shall consider of all the whole matter in Concreto and not in abstracto and shall challenge nothing for the King which belongs not to him as is seen by a Devise made by Tenant in capite according to the Statute of 32 H. 8. of Wills 5. The Commissioners imprison the Bankrupt in his own House Two questions first whether the Commissioners may imprison him by the Statute of 13. which gives them authority to dispose of his body as they shall see good in their discretions when as the Statute of primo appoints an imprisonment upon a special cause of refusal as if there were no Law general to imprison him in divers cases expressa nocent Vide my Moote Book I think they may It is true that Leges posteriores priores contrarias abrogant but this is not a contrary Law but a strengthning and a confirmation of the former Law in a particular nor doth it revoke the former no otherwise than that where by the Statute of 27 H. 8. Leases shall be under the Dutchy Seal This doth not take away the Authority of the Great Seal but that Grants may pass under the Great Seal since the Statute And for sureness now a days they put many times both Seals to them 2. Question is whether this Imprisonment in his own House be such a Dealing in the Commission by the Commissioners as is intended by the Statute of primo That his dying afterwards shall not alter the Case For if it be a lawful Imprisonment then here is a Dealing if not contrary for Ea possimus quae jure possimus for as it is said by Herle for a Maxime that all Leets Hundreds and in 2 E. 3. all Ports and Cities are the Kings and the Lords
grant his Estate upon condition and the reversion is granted and he attorns and then enters for the Condition yet the attornment is void But yet the Law will respect such a possibility as 5 E. 3. fol. 36. Lands were given to the Baron and Feme the Baron dies the Feme makes a Lease for her own life the Lessee is impleaded in a Cui in vita and he vouches the Feme and she prays in aid of the heir of the Husband and well and yet the Feme had nothing If I bargain and sell Lands to one for life and then I grant the reversion and the Barganee attorns and then the Deed is Inrolled this Reversion is well granted and this is a good Attornment But it may be objected that the Land is not in the Conizee upon the extent for if it be extended at too high a rate he may return it upon the extendors for so are the Books of 44 E. 3. 2 H. 4.17 21 E. 3.21 15 H. 7.16 and divers others Books But I make this an Argument for my self for that shews it is out of the Conizor and if the Land were in the extendors hands no doubt but the reversion might be granted and by the Book of 1 E. 3.8 in a quid juris clamat they shall be forced to attorne 2 But admit that such a grant of reversion may be made yet no grant of a reversion can be good without Attornment of the particular Tenant and here your Conizee the Tenant attorns before his time that is before he hath possession by the Liberate and so the case of 8 H. 5. fol. 10. comes full against you To that I answer That the Tenant by Statute is esteemed in point of Attornment as Tenant for term of years for so the Case of 1 E. 3. fol. 8. esteems him And I make small Question but that if a man make a Lease for years and before the Lessee enter the Lessor grants the reversion and the Lessee attorns This is a good Attornment for it matters not whether ever the Lessee entered or not for the Land was in him to give grant or forfeit and 21 H. 7. fol. 27. after such a Lease If the Lessee will not enter yet if the Lessor waive the possession and a rent day accrews the Lessor may have an action of debt against the Lessee without ever making any averment that the Lessee entred So in our Case although the Conizee cannot enter of himself but by the Livery of the Sheriff yet he is not in by the Sheriff but by the Law in the Post And it is not very absurd to say he is in by and under and from the Conizor for if the Conizor had Covenanted that any to whom he after the Recognizance had conveyed the Land should have enjoyed it against all claiming from by and under him and the Conizee had sued execution the Covenant had been broken 3. Then allowing that this first grant of the reversion is good to C. in Tail Then the next question is that C. commits Treason and A. grants the reversion of C. in Fee to D. and C. Attornes Whether this be a good Attorment Whether if C. comes afterwards to be attainted for the Treason and an Office being found hath relation to intitle the King to the Land from the time of the Treason committed that is Whether this Office shall not relate to make C. no Tenant of the Land from the Time of the Treason committed I will agree it will relate to avoid all charges and incumbrances made by C. but yet the Attornment is good for that I will put but one Case that comes full home to the point which is Sir Miles Fleetwood's Case in my Lord Cooks 8. Report which is that the Attainder and Office relate to intitle the King to the Land from the time of the Treason committed but not to Chattels sold or to the mean profits of Lands received so as for the mean time C. was Tenant and might take the Profits and the Rents paid to him by the Tenants were well paid then a fortiore might he do and execute all instrumental Acts as if he had been Lord of a Mannor and a Copyholder after the Treason and before Attainder had surrendred to the use of another who had been admitted the surrender and admittance had been good and so consequently the Attornment for by the Attornment he parts with nothing of his own only he is a means to profit another mans grant of that which was never his 4. The next Question is That the Tenant in Tail commits Treason suffers a Recovery to the use of himself and then it attainted whether the King shall have the Fee-simple or else whether the Office shall not relate to make the Recovery void and whether he in Reversion who by intention of Law had recovered other Land in value shall have any benefit against the King by the Kings priviledge which he hath to avoid this Recovery It is plain that if this Recovery had been to the use of a Stranger the King by Office should avoid it and consequently he in Remainder would have been remitted The difference of the relation of an Office to intitle the King to Goods but from the Attainder and to Lands from the time of the offence committed are these 42 E. 3.26 33 E. 3. Fitz. Forfeiture 30 31 H. 6.5 temp H. 8. Bro. fo 42. I take it that if the King in this Case had taken the benefit of the Statute of 33 H. 8. c. 20. which gives the King all the Lands which a person attainted hath at the time of his Attainder though there be no Office sound then the King might have seized the Land and the party had had no remedy But now an Office being found the King is in by the Office which discovers the whole matter of Record and the party hath the benefit thereby And thereby it appears that C. was by the offence and the relation of the Attainder disabled to make any Conveyance or disposition of his Land That a Common Recovery is a Conveyance vide Coke li. primo Pelhams Case So this Grant of the reversion to D. is good and not pulled out by the Recovery But it is granted to one that is an Alien born but made a Denizen of Ireland whether now the King be not intitled to the reversion in Fee as the Lands of an Alien I take it that he that is free of Ireland is free of England it is true that one which was born in Scotland ante c. and these that were born in times past in Aquitain or in Normandy were Aliens born because these Countries were brought with the Kings of England as their former inheritance but Ireland was conquered by H. 2. and inhabited and planted with Englishmen and upon the matter made part of the demeasnes of the Crown of England as other Islands are as the Wight and Jernesey Virginia and Greenland and therefore the Kings of
wherewith he makes his Ware and sells his Ware again as a Shoomaker 16. A Vinter is a Bankrupt for he buys Wine and sells Wine but I doubt of a Brewer The second Division Who shall be said to be a Subject born within the Realm or Denizen 1. NO Ambassadors Children born in England can be for although they were born within the Realm yet they are not Subjects born 2. One born upon the Coasts of Denmark or the Low Countries is no Bankrupt but one born upon any part of the French Coasts or Brittany between Calice and the Isle of Oleron is a Bankrupt 3. One born in Ireland or the Isle of Man or in Garnesey c. or in Barwick is a Bankrupt but neither the ante nati nor post nati of Scotland are within this Statute but they are both within the Statute of primo the King 4. A Merchant Stranger is made Denizen upon condition that within seven years he shall marry an English Woman he becomes indebted and at five years end he marries an Alien and departs the Realm and before seven years end she dies and he marries an English Woman he shall be Denizen and Bankrupt within this Statute 5. A Merchant Stranger is made Denizen upon condition that he shall not depart the Realm and he departs yet he is a Bankrupt but if it were for anothers life contrary for that is not his own act 6. One is made Denizen of Ireland by Charter under the Great Seal of Ireland he is no Bankrupt but if it were under the Great Seal of England contrary 7. One naturalized by Act of Parliament is Bankrupt 8. A Merchant Stranger is sworn to Allegiance in the Leet or at Sessions and dwells here for twelve years by the Law of Nations this makes him subject to the King but not within the Statute for he must be a Subject born wherein he is different from an Ambassadors Son for he is born but no Subject and this contrary 9. Baron and Feme travel beyond the Seas by License a Son born there is not a Bankrupt yet he is a Subject but not a Subject born within the Realm 10. One born in England becomes a sworn Subject to the King of Spain and dwells and trades there for two years he is within the Statute and his Goods there shall be sold Doctor Story 11. A Merchant Stranger is naturalized without being sworn to the Supremacy or Allegiance he is a Bankrupt notwithstanding the Statute of 7 Jacobi cap. 2. The Third Division In what Cases and what matters make one Bankrupt as departing the Realm c. as in the second Division 1. A Feme Covert sole Merchant of London Elopes with her Goods into Scotland she is a Bankrupt 2. The Baron of such a Feme is outlawed for the Debt of the Feme the Baron and Feme are both Bankrupts 3. A Merchant departs the Realm to Merchandize and becomes indebted and to avoid arrests defers his return this doth tantamount as a departing of the Realm 4. One departs the Realm by License and becomes a Merchant and a Privy-Seal awarded against him he refuseth to return he is a Bankrupt 5. A Capias de excommunicato capiendo is awarded against one who for fear of Arrests departs the Realm he is no Bankrupt 6. The same for departing the Realm or keeping his House for fear of an Attachment in Chancery 7. A Merchant indebted keeps a Shipboard this is keeping his House 8. A Maltman becomes a Miller and he keeps in the Mill. 9. The King grants to a Merchant indebted the keeping of a Castle who keeps the same by colour of his Office but for fear of Arrests refuseth to come abroad to Church c. 10. A Merchant indebted departs the Realm to Merchandize and having loss by Tempest returns no more this is not a departing c. but an absenting himself 11. One recovers debt in the Admirals Court upon a Contract made upon the high Sea and the Defendant being a Merchant lies in execution in the Admirals Prison for six months he is a Bankrupt 12. An Apothecary is made Church-warden and being indebted keeps in the Church this is a keeping of his House 13. One hath no House of his own but keeps in another mans House and is a Bankrupt it is his House 14. There be now in England no Sanctuaries therefore all priviledged places where the Kings Officers cannot come and yet there is no Law nor Justice to be had judicially in the place is within these words of taking of Sanctuary 15. To keep in the Tower of London is no taking of Sanctuary but if the Steward or the Lieutenant be a Merchant and indebted and keep the Tower he is a Bankrupt 16. One takes Gray's-Inn is a Bankrupt yet they have no exemption from Officers but usus condo c. 17. One hath no House but an upper Chamber 7 E. 3. 18. One is outlawed he is a Bankrupt but if the Outlary be reversed for want of Proclamations all done in the mean time by the Commissioners is void but if it were reversed for Error contrary 19. One outlawed in the County Palatine of Durham is a Bankrupt but contrary in Ireland for the Record is not pleadable here 20. A Merchant hath a Rectory appropriate the Quire is not repaired the Tithes are sequestred no sequestration within the Statute 21. A Merchant ackowledges himself to be the villain of I. S. to defraud his Creditors he is a Bankrupt and yet his goods and body are not subject to Commission The fourth Division What Freehold Lands of a Bankrupt may be sold by Commissioners 1. A Merchant makes a Feoffment in Fee upon Condition upon payment of money to re-enter he becomes a Bankrupt the Commissioners may tender the money at the day and sell the Land 2. A Bankrupt is Tenant in Tail the Commissioners may sell the Land and the sale shall be as good as if it were by Fine for Tenant in Tail by Fine c. may lawfully depart with the Land 3. One hath a Lease for years upon condition to have in Fee the Commissioners may sell the Term and possession 4. Land is devised to a Bankrupt the Commissioners may sell and the Bankrupt shall not wave the devise 5. A Bankrupt hath a villain and manumits him the Commissioners shall not sell in favorem Libertatis 6. A Baron useth merchandize and is nonsolvent the Commissioners shall not sell his Barony 7. A Rent seck whereof is no seisin shall be sold and good without Attornment 8. All Offices of inheritance shall be sold as the Wardenship of the Fleet or a Jaylor by inheritance contrary of all Offices of trust that are but for life 9. A Monopoly granted to one and his Assignes as the sole making of Cards c. shall not be sold because it is a void Patent and nothing passes by it 10. The Office of sole Printing of Law Books is void therefore not saleable 11. A