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 do 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 inferior 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 Merchandise) 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 Judgements; by that Law (if once a Man acknowledged himself to be indebted to a Merchant, and paid not his Money at his day) without Process, without Pleading, without further Suit or Judgement, 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 fetched ours; but now that course is clean altered, for very few come from Foreign Nations to us; but we ourselves Trade and Traffic 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 deal 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 passed 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 myself 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 myself, 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 through 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 supplied 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 Virtues, 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 lewdness of the Breaker, therefore, and that my endeavours may tend more for your Learning and mine, than for our Delights; Now my Law is this, 1. Who shall be said a Merchant, or other Person, seeking his Trade of Living by Buying and Selling, within this Statute. An Adventurer in the East-India Voyage is within this Statute. To Newfoundland for Plantation, or Discovery, is not. An Adventurer in the Virginia Voyage is not. One of the Muscovia Company, Adventurer to Green-Land, and Discovery, is not. A Clothier, or any Manual Occupation, which is within the Statute of 5. Eliz. of Labourers. A Grazier is no Mechanic. A Gentleman goeth beyond Seas, and giveth his Bills of Exchange to be paid here by his Bailie or Steward, who accepts it, and after that protesteth, no Merchant. Goldsmith, Hammer-man, Goldsmith-Shopkeeper, the same of Jewellers. A Feme-Covert sole Merchant in London, the Husband is Outlawed, the Commissioners sell the Land of the Husband, who dies, the Wife brings Dower, London 11. Ash. She is Sister to the Elder Brother, and after another Brother is Born Heir to the Elder. There is a difference between a Smith, and an Ironmonger. A Feme-Covert sole Merchant, an Obligation is made to the Husband and Wife, and they are Divorced, and she is a Bankrupt. An Innkeeper is within. A Courtier takes a Lease of the King, of the Preemption of Tinn, if he shall be within the Statute during his Term. One hath a Monopoly of the sole making and selling of Glasses, or Cards, he is not within, but any who hath the sole Importing or Exporting of any Commodity, is within. A Merchant gives over his Trade, and seven Years after becomes none solvent for Money he owed while he was a Merchant, he shall be a Bankrupt. Jo. Quarles. But if it were for new Debts, contrary, Hickmough's Case. But if he were indebted, and gives over his Trade, and his Debts are continued at Interest, and the Bonds from time to time renewed, he is no Bankrupt, by John Stone. Where one shall Sue for his Debt before it is due. If an Assign shall have a Reextent. If an Assign shall have a Writ of Error. See Davies Reading. 2. Who shall be said a Subject Born within this Realm, or any of the King's Dominions, or a Denizen. One Naturallized by Act of Parliament. The Son of an Ambassador of Venice, born here, and after Sworn to his King. One is made Denizen, so that he is only a Purchaser for his Life. One Born upon the Sea, upon the Coasts of Holland. One Born in the Port of Diep. The Bishop of Sodor, Born in the Isle of Man. A Denizen, upon condition, that he shall not departed the Realm, and he for Debt departeth. One made Denizen of Ireland, by the Charter of Ireland, 11. H. 8. Kelloway, fol. 202. A difference between the Isle of Man, and Wight, etc. A Pewterer goes beyond Sea, and there useth his Trade, he shall lose his Privilege, and the benefit of an Englishman, saith the Statute of 25. Hen. 8. cap. 9 One hath a Prisoner in Execution for Debt, and becometh a Bankrupt, if he escape, if the Assigns may have an Action of Escape. Quere, If the Bankrupt release to the Prisoner, if such a Debt may be Assigned, for his Body is a Pledge. 3. What shall be said a Departing from his House, or out of the Realm. A Merchant keeps his Ship for fear of Arresting, which Ship is by Pirates or Tempest driven beyond Sea. A Merchant departs the Realm to Merchandise; and having loss by Tempest, he returneth not upon a Privy Seal; if the King or his Creditors shall have his Goods. A Commoner keeping his House. A Merchant indebted, leaveth off to Merchandise, and after keepeth his House. One keepeth his Ship, or his Mill, or being Churchwarden, keeps himself in any part of the Church. One that hath no House, but an Upper-Chamber. One that is a Keeper of a Castle of the Kings. One that hath no House, but Sojourns now in one place, and after in another. Absenteth himself. A Capias de Excommunicato Capiendo is awarded against a Merchant, who absents himself for fear of being thereby Arrested; no absence within the Statute generally. An Attachment out of Chancery is awarded against a Bankrupt, for not payment of Money decreed, if he absent himself, he is a Bankrupt. Contrary, if it were for not making a Conveyance. Taking of Sanctuary. Parries Case before the Bishop of Ely, Feb. 1. 1616. A Recusant Convict grants an Advowson for 21 Years, and dies, the Church becomes void; The Question is, if his Heir, or the Lessee shall present upon the Statute of 3. Jacobi. 4. Sufferance of himself to be Arrested, or Imprisoned for six Months, by 1 Jacobi. Outlawed. Outlawed without Proclamation. An Outlary reversed by Error, and Averment; a difference. One outlawed for Felony, committed after he is a Bankrupt; if the King by the Outlary, or the Creditors shall be preferred for the Goods. One outlawed in Ireland. 5. Yielding himself to Prison. Imprisoned by 1 Jac. for a Fine in the Star-Chamber by Exchequer Process. For a Fine before the High Commissioners. For a Debt recovered in the Admiral's Court. His Goods being Attached or Sequestered. A Merchant Farmer of a Rectory, the Parson serveth not the Cure. 6. What Authority the Commissioners have upon the Body of the Bankrupt. A Merchant confesseth himself to be the Villain of I. S. who taketh his Goods. A Merchant enters into Religion after Bankrupting or before, his Executors, etc. A Bankrupt is made a Clerk. 7. What Lands, Tenements, and Hereditaments of a Bankrupt which is , may be sold, which he hath in his own right, or purchased jointly with his Wife or Children, or shall be said to descend or come to him before, or after he is become a Bankrupt. Sale of Lands in Tayl. If such a sale may prejudice him in remainder, or it shall be construed a Feoffment of Record, as a Fine is; One hath Land in right of his Wife, if it may be sold to one to have during the Goverture. A Merchant makes a Feoffment to one upon condition to pay Money, if the Commissioners may transfer this power to perform the condition to any. A Merchant maketh a Feoffment upon condition that the Feoffee shall pay the Money, and it is not paid, if the Commissioners may give Authority to any to enter for the condition broken. Land is devised to a Merchant, or a Remainder, or an use is limited to him, if he can waive after he is a Bankrupt. Rentseck whereof there is no Seizure, shall be sold. A Barony, Earldom, or Baronetship, are Hereditaments, and yet shall not be sold. A Villain shall be sold, but if the Bankrupt Infranchise him, Quere, If he shall be sold again. The Office of Warden of the Fleet, or Jailor of Inheritance, and all other Offices of Inheritance shall be sold; contrary of Offices of Trust, which are but for Life. A Monopoly granted to one and his Assigns, shall not be sold. Land Escheated shall be sold; but Quere, if it Escheat after the Commission, and Death of the Bankrupt. One bargains and sells a Seignory to a Bankrupt, and after Commission the Bankrupt dies, and the Deed is Enrolled after the Commission. The Bankrupt having Land holden in Capite dies, his Heir within Age and Office is found, if they can sell. The same, if his Heir be an Idiot, or a Lunatic. A Bankrupt becomes Lunatic, an Office is found. A Bankrupt is Tenant in Tail, the remainder in the King, if it can be sold but for the Life of the Tenant in Tail. Tenant in Tail grants all his Estate, and becomes a Bankrupt, the Land shall not be sold. Tenant in Tail of a Rent, is disseised thereof, and dies, his Issue is a Bankrupt, and brings a Formedon, yet the Rent shall be sold. Two joint Tenants, the one is a Bankrupt and dies, if his part shall be sold, not, because the Survivor is not in by him. Tenant in Tail, the remainder to an Alien, Tenant in Tail is a Bankrupt, and suffers a Recovery, the Land is sold. Tenant in Tail dies without Issue, an Office is found, if the Land shall be sold for the King. 8. What Copyholds they may sell, and what agreement made with the Lord is good. The Lord sells the Freehold of one sole Copyholder to A. the Copyholder becomes a Bankrupt, if the Commissioners can sell. Copyholder in Tail with a remainder, where no Recoveries, or where Recoveries are remedied against the Lord who will not compound. A Copyholder by Licence of the Lord, makes a Lease for One and Twenty Years, the Copyhold Escheats, Quere, if the Lease is good against the Lord. A Feme by Custom is to have a Widow's Estate, the Bankrupt makes such a Lease, if the Feme shall avoid it. A Bankrupt Copyholder makes a Feoffment, the Lord enters, the Commissioners sell, the Vendee tenders a competent Fine, the Lord refuseth to admit him, the Vendee enters, the Lord brings Trespass, it lieth not. A Bankrupt makes waste, the Commissioners sell, the Lord enters for a Forfeiture. A Copyholder surrenders into the hands of two Tenants, he to whose use is a Bankrupt, the Lord dissolves the Manor. 9 What Fees, Annuities, Offices, Goods, Chattels, and Debts, the Commissioners may sell. A Merchant acknowledgeth himself to be the Villain of I. S. the Commissioners may Assign his Debts, Quere, of his Goods. A Lease for Years, provided that he shall not alien, the Commissioners sell, if it be a Forfeiture. 10. What Uses, Interests, Rights, or Titles of a Bankrupt, the Commissioners may sell. A Bankrupt hath an Advowson, the Church becomes void, the Commissioners sell, the Vendee presents, if this be Simony. A Bankrupt prefents one who is privy to his Bankrouting, who is Indicted, the Commissioners sell, their Vendee brings a Quare impedit within six Months. A Bankrupt hath a Warranty, what use the Vendee shall have of it. A Bankrupt hath the next avoidans, the Commissioners present one for Money paid to the Creditors. The Disseisor dies seized after five Years, the Disseisee becomes a Bankrupt. A Woman hath a Rend charge, she takes a Husband a Bankrupt who Distrains, and Rescous is made, if the Commissioners can sell all the Rent which shall be due during the Coverture, 1 E. 3. fol. 5. Pl. 23. The Commissioners sell a Rent, or Reversion, if good without Attornment. A Bankrupt loses by erroneous Judgement, if this right to bring a Writ of Error may be transferred by the Commissioners. The same of an Entry for condition broken, or performance of a condition. A Bankrupt becomes Lunatic, the Commissioners sell, an Office is found. 11. What Deed Enrolled in one of Her Majesty's Courts of Record shall be good. The Deed is not acknowledged before any of the Masters of the Chancery by the Commissioners. The Deed is not Enrolled within six Months, the Statute of Inrolements saith, by Bargain and Sale only. I. S. By prescription holdeth Plea in his Manor above Forty Shillings, the Deed is there Enrolled, after Sale and before Inrolment the Bankrupt takes a Wife, and die, if she shall be endowed, the Deed is enrolled in the Mayor's Court in London; no question, of the Hustings. 12. What shall be said a just Debt, and how the Statute shall make an apportionment between the Creditors; what is their duty to do, and what remedy they have for their Portions, and who shall be said a Creditor, and who shall be relieved. A Merchant indebted as Surety, or Bail for a Gentleman, but not for himself. If one may Sue for a Legacy before the Commissioners. How a Debt doubtful shall be tried before the Commissioners. For Money decreed to him in the Chancery or Star-Chamber. One Creditor sole Sues a Commission, and keeps it with him secretly until the last day, within four Months, and then the Commissioners sell the Land, and pay all to this Creditor, the others never having notice thereof; what remedy for them? The Commissioners sell all the Land, and distribute all, but this is not full satisfaction, after other Land descends to the Bankrupt, if they can make another sale, and new distribution. The four Months are past, and part of the Estate distributed, new Creditors come in, if they shall be admitted to have contribution of the rest, which is not yet distributed, and if such new Creditors shall have allowance ratably with the other Creditors according to the Remnant of their Debts, or according to all paid, or not paid. A Bankrupt becomes indebted to one who had notice that he is a Bankrupt, if he shall be admitted a Creditor? One hath a Debt which is not yet due, yet he shall be relieved with rateable respect of abatement for the time. 13. What Act or Conveyance made by a Bankrupt before or after he is a Bankrupt, shall be good. He takes a Wife after he is a Bankrupt, if she shall be endowed of Land, which he had before. He takes a Wife after he is a Bankrupt, and Land descends to him, if she shall be endowed. A Bankrupt Disseisor, the Commissioners sell, and before the Deed is enrolled the Disseisor releases to the Bankrupt. A Bankrupt presents one who is private to his intent, who is indicted, the Commissioners sell, the Vendee brings a Quare impedit. A Bankrupt becomes a Clerk-Convict, and hath Goods within a Liberty. A Bankrupt after Commission awarded becomes felo de se. A Conveyance to the use of a Daughter a Widow formerly advanced. A Merchant Tenant in Knight-service, his Heir within Age makes a Feoffment by collusion, the Lord after becomes a Bankrupt, this is no fraud against the Creditors, but yet the Land shall be sold, for though it be fraud between the Lord and the Tenant, yet there is a Trust between the Feoffor, and Feoffee. 14. What Declaration or Account the Commissioners shall make to the Bankrupt, and whether the Proviso be a Condition, and what remedy the Bankrupt hath for to cause them to account. The Commissioners all die after the sale of the Lands, and distribution, what remedy hath the Bankrupt for the rest against the Executors of the Commissioners, or against the Survivor of them. After the Sale, and before distribution, all the Commissioners die but two, what shall be done. A new Commission shall be awarded to other Commissioners (not to them) and they shall be called before the new Commissioners, as they who have the Estate of the Bankrupt in their hands. 15. What shall be said a concealment of the Estate of a Bankrupt, or of his Person, or a fraudulent claim or demand, or detaining of his Estate, and what remedy for the Forfeiture or Fine. 16. What damage is it to be out of the King's Protection, by this Statute. 17. Who shall be said a Creditor within this Statute. A sole Creditor if he can sue the Commission. A Mortgage of Lands or Goods, if they can sell them. Conusee of a Statute-Merchant, or Recognizance. The Plaintiff who hath the Body of the Defendant in Execution upon a Judgement at the Common Law. He who hath the Bankrupt in Execution upon a Statute-Merchant. A Merchant is taken in Execution, and after becomes indebted to A. and remains six Months in Execution, and so is a Bankrupt; if A. shall be a Creditor, that is, if he be a Bankrupt from the beginning of his Imprisonment by relation, or only after the six Months. A Merchant is imprisoned for Debt, the Gaoler Credits him for Victuals for a Year, if he shall be a Creditor for part, for all, or for none? A Bankrupt is Convicted for keeping of Inmates, or erecting Cottages, the Statute gives an Action of Debt to the Lord of the Leet, he is no Creditor. 18. What Conveyance the Commissioners may make after the Death of the Bankrupt. A Feme Covert, sole Merchant within Age, the Baron and Feme levy a Fine of the Land of the Feme, a Commission is awarded, the Fine is reversed for Nonage of the Feme, with a Cessation of Execution during the Life of the Baron; they have Issue, the Feme dies, the Commissioners sell, the Issue enters. The First Division. Who shall be said to be a Merchant, or other Person, using or exercising the Trade of Merchandizes, by way of Bargaining, Exchange, Bartry, Chevisance, or otherwise in gross, or by Retail, or seek his or their Trade of Living by Buying and Selling. 1. A Makes a Lease for Years to B. and grants the reversion to C. in Tail, B. attorn; and enters, A. grants the reversion of C. to D. being a Denizen of Ireland, C. commits Treason, and attorns, D. becomes an Adventurer to the East Indies, C. is attainted, D. is Non solvent, and having no House, keeps himself on Shipboard, C. Dies without Issue, a Commission is awarded, and after supers the Commissioners sells the Land by Deed Enrolled in the Mayor's Court in London. D. is a Bankrupt within the Statute, and the Sale by the Commissioners is good. 2. Tenant for Years of an Inn, makes a Feoffment in Fee to Baron and Feme, an Alien makes livery within the view to the Feme who enters, the Baron is made King, the Lessor being an Adventurer of Virginia, Releases to the King by Deed Enrolled, an Office is found, the Queen waives, the Lessor enters, and keeps the Inn, and being Non-solvent, is made Keeper of a Castle in the Isle of Man, where he was Born, and there remains. The Lessor is a Bankrupt within this Division of the Statute, and the Commissioners may sell the Land. 3. A Disseisor makes a Lease for Life to a Feme sole, the remainder to the right Heirs of I. S. she makes a Feoffment in Fee upon condition, and enters for the condition broken, and grants a Rend charge to A. a Goldsmith of London, Naturalised by Parliament, the Disseisee Releases to the Feme, she Marries A. the Disseisor enters, and makes a Feoffment to a Stranger, I. S. dies, the Feme hath Issue, and dies, A. enters, and being Non-solvent surrenders to the Issue and departeth the Realm to Merchandise, the Commissioners sell the Rent, the right Heir of I. S. enters. A. is a Bankrupt within this Division of the Statute, and the Vendee may presently Distrain for the Rent. 4. R. Tenant in tail makes a Gift in tail to M. hath Issue, and dies, M. makes a Feoffment to C. and dies without Issue, his Wife the Issue of R. enters, a Son is Born who enters, the Feoffee enters, and being a Grazier buys lean , and feeds them upon the Land, and Sells them when they are fat, and sells his own House, and after being Non-solvent keeps his Neighbour's House. C. is no Bankrupt within this Statute, and the Issue of R. recovers the Land by Formedon, and the Son Born hath no right. 5. A Man hath Issue, A. and B. two Daughters, they Disseise I. S. and infeoff their Father; A. Marries C. and by his leave becomes a Sempster in the Exchange, London; the Father dies, I. S. releases to the Husband, B. brings a Neuper Obiit against A. and C. C. makes default, after default, A. is received, and being indebted to divers Creditors, disclaims in the Blood, the Husband keeps the House. The Husband is a Bankrupt within this Statute, and the Moiety of the Land is liable to the sale of the Commissioners during the Coverture. 6. One makes a Lease for Years to A. the remainder to B. for the Life of A. the remainder to the right Heirs of A. B. dies, A. having Issue a Daughter, his Wife with Child with a Son, devices the Land to I. S. for the Life of M. for payment of his Debts, and makes I. S. his Executor, and dies, I. S. enters, the Daughter being a Feme Covert, sole Merchant in London, enters, M. dies, the Daughter is Non solvent, and elopes, the Son born enters. The Daughter is a Bankrupt within this Statute, and the Commissioners may sell the Land. 7. One devices his Land to A. B. and C. & baeredibus, A. paying 10 li. they enter, and A. being an Exchanger enters into Religion, B. releases to C. the Bills of A. are protested, C. dies, the Creditors of A. brings Action against his Executors, and before Judgement A. is deraigned, the Commissioners sell all the Land. A. is a Bankrupt within this Statute, but the sale is good only for a third part. 8. M. and F. join Tenants of a Horse, Mortgage him to E. a Feme sole, who intermarries with M. F. being a Horse-courser, performs the condition, and takes the Horse, E. by commandment 〈◊〉 her Husband Steals the Horse, M. and E. are Divorced, causa praecontractus, M. dies, E. is indicted for Felony, the Horse-courser becomes a Bankrupt the Commissioners sell the Horse. F. is a Bankrupt within the Statute, and the sale is good. 9 The King makes a Lease for Years, rendering Rend of the Pre-emption of Tynn in Cornwall, to I. S. one of the Grooms of the Privy Chamber, who becomes indebted to divers Persons for Tynn, bought of them by his Deputies, and sold to Merchants the term expires, I. S. continues his Debt by renewing assurance, and payment of Interest for Seven Years, and then keeps himself in the King's House for avoiding the Arrests of his Creditors, the Commissioners sell his Fee. He is no Person who is a Bankrupt within the Statute, and the sale is void. 10. A. Feme sole being seized of Land in Fee, B. contracts with C. an Ironmonger, and D. a Smith (for Money to him by them paid) to marry A. and that after the Marriage he and A. will Levy a Fine of the Land of A. to the use of C. and D. and their Heirs; the Marriage is had, the Fine is Levied, C. is Outlawed, D. departeth. C. is a Person who is a Bankrupt by this Statute, but not D. and the Moiety of the Land shall be sold. The Points of the Second Case. 1. WHen Tenant for Years makes Livery within the view, the Question is, Whether the Feoffer, or the Feoffee, or both, or neither, are Disseisors. See Ash. Disseisin. It appears by our Books, as in 10. E. 4. fol. 18. that before the Statute of W. 2. cap. 25. Tenant for Years had made a Feoffment, he was the only Disseisor, and by the Statute, Tam feofator quam feofatus, shall be Disseisors; so as vivente altero eorum lorum habeat predictum breve (meaning the Writ of Assize) and the very reason why that Statute was made, was to avoid the mischief which was put in practice in Farmer's Case, in Coke lib. 3. For even as there Tenant for Years, or a Copyholder would Levy a Fine, and yet keep Possession, and then thought by suffering five Years to pass without entry or claim by the Lessor, that he might gain the Land; so here Tenant for Years would make a Feoffment, than he being the only Disseisor, if he died, there would no Assize lie against the Feoffee; and so the Lessor lost the benefit of this festinum remedium, which the Statute gives: This very Question being moved by chance in the Court of Wards, Hesketh was of Opinion, that if before the Statute, Tenant for term of Years had made a Feoffment upon the Land, he was the only Disseisor, if within the view the Feoffee was the only Disseisor. But what such a Livery within the view would work since the Statute, he made a great doubt; if I should hold that neither of them both were Disseisors, and that nothing pass but only the Term, I should very well maintain the conclusion of my Case to the end, for nothing doth actually pass by Livery within the view, but by Operation of the Law, and the Law will never work to do any Man wrong, and therefore, 9 H. 7. Tenant for Years of one Acre, and in Fee of another, makes a Feoffment of both, and makes Livery only in the Acre wherein he hath Fee, nothing passes of the Acre he had for Years. 28. H. 8. D. 18. One hath a House Leased, and one close in possession, etc. for Act in Law never will work a wrong. 41 E. 3.5. The Tenant pleads non tenure, if the Land descend pendente vere, the Writ shall not abate. So if nothing pass but the Term, then if I resolve the sixth point of my Case, that the Term remains with the Queen after Marriage, than the Release made to the King works nothing, and so the Lessors best right is to enter for a Forfeiture, although the Queen afterwards waive; but I will let this Question rest a while by reason of, etc. 20 Eliz. D. Where by the Opinion of the Chief Justices, That when Tenant of 100 Years makes a Feoffment by Letter of Attorney, the Lessor being upon the Land that the Fee passeth. 2. Whether Livery within the view be good without Deed? 3. Whether a Feoffment made to Baron and Feme without Deed and Livery to the Feme sole, be good to the Husband until disagreement? 4. Whether if Tenant for Years enfeoff two and the Lessor Releases to one, if he shall exclude his Companion? 5. If Baron and Feme are Disseisors, and the Disseisee release to the Baron, if he shall exclude his Wife? 6. A Feme Covert hath a term, and the Husband is made King, if the Queen or the King should hold the term? 7. Baron and Feme Disseisors, the Baron is made King, the Disseisee releases to him, if it makes the King and the Queen joint-tenants, or Tenants in Common, or if they shall be seized by moieties, or intireties, or if the release be not utterly void, is the seventh Question. 8. I. S. is Disseised to the use of the Prince, who is made King, the Disseisee releases, if this be not void, for then the King agreeth to the Disseisin. 9 A Feoffment is made to a Feme Covert Alien, the Baron is made King, Office is found, if the King shall have the Land? 10. A Feoffment is made to a Feme Covert, and the Husband is made King, if she can waive? Points upon the Statute. 1. WHether an Adventurer into Virginia, be within the Statute? 2. Whether an Inn keeper be within the Statute? 3. Whether one born within the Isle of Man be within the Statute? 4. Whether the keeping of one of the King's Castles, be a keeping of his House within the Statute? 2. and 3. Questions are, Whether a Feoffment made without Deed to the Husband and Wife with Livery within the view to the Wife only, and she enters, will invest any thing in the Husband? That Livery within the view may be made with-Deed, I make no great question, It is true, that the Books are both ways. For 38 E. 3.32.38. Ass. 2. Baron and Feme, Allford, 41 E. 3. Jo. Sees Case. Temp. Hen. 8 Brook, It is good saith he by Deed by Livery within the view. Thorowgood's Case, Coke, lib. 9 If of the ground, he saith, see you this Land enter according to the Deed. Cont. 39 E. 3 Ass. 12. I vouchsafe you the Land, 42 E. 3. Fitz. Feoffment. 54. the same Case, Which: made he a Deed to his Father, Lass. non. Which: was the Land in vica, Ass. it was half a Mile from the Church yard. 11. Ass. 6.11 E. 3. Ass. 86. Feoffment of all but one Chamber. 43. Ass. 20. per Brook, Feoffment without Deed. But the Question is, whether a Feoffment to two or three by Deed with Livery to one is good to all, but without Deed, but to him to whom, etc. 10 E. 4.1. 8 E. 4.12. 15 E. 4.18. But here the Baron and Feme cannot take by moleties, and their Estate is but one Estate, and they are Disseisors, both at Common Law, and also by Statute, so as if the Baron consent afterwards, he consents as one that consents to a Disseisin made to his use. 15. Ass. 11. by agreement to a Rescous made by a Stranger, the Tenant is a Disseisor. 37. Ass. If my Tenant at will, enter into another Man's Land, lying by my Land, or take Estovers or common, if I consent to it, I am a Disseisor. Tenant for Years enfeoffs, 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 , 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 assize 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 stultify 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 etc. 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 paid. It may be said the release, etc. for the Party to whom a Deed is made, if it inure to two intents, shall, etc. 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, etc. First, for the reason that in't. se, etc. 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 seized 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 joint-tenants by Disseisin, by Title, or by Disseisin, all is one, and the Husband made King; whether do they remain Join 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 altars 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 Katherine, Ferdinando's Daughters. So as the King's possession altars 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 Parker's 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 Praecipe hath been brought against the Queen, for she hath always been a Person exempt, notwithstanding the Coverture, so both their Persons being changed, etc. 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, etc. 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 Assize, and treble 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 but a Term passed, then in whom was it till I. S. was made King, in right of the Woman, and that it shall remain no otherwise than a Man that hath a Term in the right of his Wife, and is made King, she shall have all her Inheritance, and all her Terms, no otherwise than if he were Dead. 3 H. 7.14. The Queen and her Sisters were vouched as Heirs to E. the 4. A Baron and Feme Alien, a Feoffment is made to the Feme, the Baron is made King, if upon Office found, the King shall have the Land? He shall not have it. For the Baron being made King, she is made a Denizen by relation to the Marriage, which was to prevent the relation of the Office, no otherwise than H. 7. being made K. it had such relation, that it drowned all former Offences, Forfeitures, and Attainders whatsoever. 7 E. 4.31. The King grants a Farm to the Bailie and Commonalty of S. they are made Farmers, and a Corporation. 2 H. 7. A Lord infeoffs his Villain, he hath the Land and his Freedom. Grondon's Case Commentaries, the King grants Land to a Corporation, this is a Grant, and a Licence in Mortmain. Coke lib. 5.15. Tenant for Life grants a Rend charge to him in the reversion, and his Heirs, who grants it to one, and his Heirs, this is a grant and a confirmation. A Disseisor makes a Lease for Life, the remainder to the Disseisee, the Disseisee grants this remainder over, this is a grant, and a confirmation. A Parson makes a Lease to the Patron, who grants it over, this is an Assignment, and a Confirmation. A Feoffment is made to Baron and Feme, the Baron is made King, if the Feme can waive. 1. Whether she can waive or not, as a Feme may after death of her Husband? 2. In whom it shall vest? 3. How the release should work then? 4. Whether a Feme Convert Disseisor can waive? She may not otherwise than if the Baron were Dead, for she shall have all her own Land, and all her own Leases, but not her Goods. And it is not of necessity that she expect his Death, for if a Feoffment be made to Baron and Feme, and they are Divorced, the Feme may waive. In whom it shall vest, Whether in the King or not, because in a sort here was a partition? But the question will be upon the release, whether that shall relate to extinguish all the right of the Disseisee in all the Land, as if the Case were, Disseisor makes a Feoffment to Baron and Feme, and I. S. the Baron, and I. S. make partition, the Disseisee releases to I. S. this inures only upon his possession for the half; the Baron dies, and the Feme waives I S. hath all by Survivor, yet shall not the release go to all? Also by the waiver it cannot go to the King, for that were to make him a Disseisor by the waiver, it cannot return to the Lessee, contrary to his Livery, nor to the Lessor, then will not this amount to an occupancy. But in this Case the Queen cannot waive, but still in regard of the Lessor she remains a Disseisor; for if a Feme Covert be a Disseisor, and her Husband die, she shall not waive the possession, for so for years and days she might take the profits, and yet in the end pay nothing, which were unjust. 41 E. 3. An Infant may be a Disseisor, and cannot waive a descent. It may be probably alleged, that she might waive, for being a Feme Covert, she may allege ignorance of the matter of fact, that is, whether her Feoffer had but an Estate for years, or was seized in Fee-simple, and we find in our Books, that great wrongs have been excused by the ignorance of a Man in what wrong he did, and waving the thing wrongfully taken. As, 22. Ass. 85. vid. lib. faux imprison. Heir son frere prise, per Scots. 7 H. 6.27. One brought an Action of Trespass for taking his Swans; the Defendant pleaded that he was Lord of such a Manor, and that in a River within his Manor, he found the Swans, and took them for strays; but after he had notice whose they were, he waived the possession of them, and let them go; this was a good excuse both of the Trespass and Damage. 21 H. 6.14. One brings Trespass, Quare filium suum rapuit, etc. He answered, you married my Sister, and had by her this Son, and you being out of the Country, it was reported you were Dead; whereupon I, as next kin to your Son, seized him, but when I heard you were alive, I sent him home again to his Nurse. Thus rightly did he waive, and avoid his wrong for want of true intelligence, which in Law we call Notice. But in all those Cases, these wrongs were with intents to do right, and the parties were of opinion they were in the right; but our case is of a Disseisor, which is always intended a wrongdoer. But you will say, this Woman is no Disseisor at Common Law, her entry was not malum per se, but malum prohibitum, a Statute Disseisor, and she being a Feme Covert, is not bound by Statute. But I say she is bound by the Statute, for in all Statutes where a Feme Covert is not expressly excepted, she is bound, as the Statute of 13 H. 6. Disseisin 1. per Martin. Baron and Feme may both be Disseisors. 35. Ass. 5. Baron and Feme Disseisors, Assize against the Baron sole abated. 15 E. 4.15. Disseisin is made to another's use, the Disseisor is Tenant until agreement. 21 E. 4.53. Tenant is issuing out of Land of the Wife, the Husband and Wife make a Rescous, they are both Disseisors. That as I have argued the Lessor enters his entry is congeable for a Moiety, that is, the Queen's part. Tenant in tail makes a Feoffment to a Feme Covert without Licence, the Husband dies, the Feme waives. Points upon the Statute. AN Adventurer into Virginia, is not within the Statute, for although from time to time we send Trifles thither to exchange with the Savages; yet the main drift and cause of our Traffic thither is for Plantation and Discovery, and not for Merchandizing. I hold the same of Greenland, but not of Muscovia. 2. He that is an Innkeeper is within the Statute, for he buys and sells again retail. Ireland's Case in Smithfield. 3. He was born in the Isle of Man, the Statute is born within her Majesty's Dominions, or Denizen, and I should have made small question, but that one born within the Isle of Man, is born in her Majesty's Dominions, if it were not for the Book of 11. H. 8. Kell. fol. 202. It was found by an Office, that the Earl of Derby died seized of the Isle of Man, the Countess came and prayed to be endowed, to whom Brudnell ex assensu Brook & Fitz. Herbert, and all the Kings Counsel said, That the Office was void, because the Isle of Man is not parcel of the Realm, but the Isle of Wight is parcel of Hamp-shire, and Wales and Ireland are parcel of the Realm, for Writs of Error lie, etc. 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 Freeholder 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 Supreme 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 Montacute 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 enrolled, he attorns to the grant of the reversion, and after the Deed is enrolled, 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 Seignory 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 Seignory is granted by Deed to one for life, the remainder in Fee Tenant for life dies before attornment, etc. 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, etc. 46. E. 3.13. 39 E. 3.20. 3 H. 6.12. 5 H. 5. Attornment. 17. One makes a gift in tail rendering Rend, 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 William 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. Guardian 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' enfeoffs two, and the Lessor releases to one, he shall not hold out his Companion. 4. Baron and Feme are joint-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 joint-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 Innkeeper 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 Queen's Dominions, or Denizen. 1. A. and B. Disseise C. (who in consideration that A. at his request hath married B. (being a poor Maid) releases to A. and his Heirs, to the use of B. and his Heirs, Females of his Body; they have Issue, a Son and a Daughter, B. dies, the Daughter makes a Lease to C. for one and twenty years, rendering the ancient Rent, and dies, having Issue E. a sole Merchant, born upon the Coast of Flanders, and is married to F. a Citizen of London, born in the Port of Deep, A. makes a Feoffment to F. who is outlawed for Debt. The Feme is a Bankrupt within this Division, and the Land shall be sold, but subject to the Lease made to C. 2. One hath a House of Gavelkind, and purchases Estovers to this House, out of Land in Borough English, and dies having two Elder Brothers, they make partition of the House, the Younger is Executed for Felony, the Lord enters into a Moiety, the Elder Brother born in Virginia, and using to give Gold for Silver, contrary to the Statute, and for that is condemned in 100 l. in an Action upon the Statute, at the suit of the Informer, and the King, and remains in Execution at the King's suit for six Months, the Informer, and I. S. a Creditor, sue forth a Commission. The Elder Brother is a Bankrupt within this Division, but no part of the Land shall be sold by this Commission. 3. The Lessor when the King was absent in Scotland, enters upon the Lessee for life, and die seized, his Heir for Money paid by a Merchant Naturalised, makes a Feoffment to him and to a Feme sole an Alien, the Merchant and the Feme inter marry, the Lessee and the Stranger make Livery by Letter of Attorney, the Baron is made Churchwarden, and being non-solvent keeps the Church, Office is found. The Baron is a Bankrupt within this Division, and all the Land shall be sold. 4. White-Acre is given to A. and B. Baron and Feme, and to the Heirs of the Baron for the Jointure of the Feme, a Disseisor enters, and levies a Fine to C. who marries D. an Alien, A. dies, five years pass, D. is sole Merchant, and made Denizen upon condition, that she shall not departed the Realm without her Husband's leave, B. brings Dower of Black-Acre, the Heir of A. enters into White-Acre, D. being non-solvent Elopes' into Scotland, C. enters. The Feme is a Bankrupt within the Statute, and White-Acre shall be sold. 5. A Tenant for life, and B. an Infant, in reversion, born in Greenland, they levy a fine to C. B. uses his stock in the Muscovia Company, and reverses the fine, A. surrenders to the King by Deed, B. being of full age, and indebted to the Company, procures himself to be arrested, and after he grants the reversion to the King by Deed enrolled, and after the first Deed is enrolled, the Company sues a Commission. B. is a Bankrupt within the Statute, and the Commission is well awarded, and the Land shall be sold. 6. A. and B. a Merchant-Stranger, enter upon C. the Heir of a Disseisor, B. is made Denizen for seven years, the Disseisee releases to A. who makes a Lease for years, rendering Rend upon condition to re-enter for nonpayment, the Heir releases to B. the Land is extended for the Debt of A. B. is none solvent, the extender enters for nonpayment, B. keeps his House, seven years pass, Office is found, A. dies. B. is a Bankrupt within this Division, and the Land shall be sold subject to the Lease, but not to the Extent. 7. A Lord hath the Goods of Outlaws within his Manor, and M. his Tenant who was born in Gernsey, is a Mealman, and outlawed, and for redemption of his Goods, enters into an Obligation to the Lord to pay 100 li. B. recovers 10 li. against him for Battery, the Lord leases to him a Windmill, M. reverses the Outlawry, and being in Debt to a Scotchman, an Irish man, and a Dutch man for Corn, before his day of payment ceases to be a Mealman, and becomes a Miller, and being non-solvent, keeps himself in the Mill. He is a Bankrupt within the Statute, but the Debts are not remedied by this Statute. 8. An Accountant to the King hath a Seignory, and dies, his Son being a Merchant, and born upon the River of Canada, releases to the Tenant all the services for the life of the Tenant, who dies without Heir, a Stranger abates, the Son being non solvent goes to Bermuda, a Commission is awarded for the King upon the Statute of 39 Eliz. cap. 7. and another Commission is upon the Statute of Bankrupts, the Commissioners for the King sell the Tenancy to A. the Commissioners of Bankrupts sell the Seignory to B. The Son is a Bankrupt within this Statute, and B. shall recover the Land against the abator by Writ of Escheat. 9 A. makes a Lease of years to B. a Merchant-Stranger, Denizen of Ireland, upon condition to have for life if he pay 10 li. at M. and to have in fee if he repair a Highway before Christmas, rendering Rend upon condition to re-enter for nonpayment, the first condition is performed, B. being non-solvent returns to Ireland, and there stays in his House, the Rent is due at the Feast of All Saints, and is demanded and Arrear, B. performs the second condition. B. is a Denizen within the intent of this Statute, but the King shall have the Land during his life. Upon the Second Division. The Points of the First Case. 1. IF one may release to one, to the use of another? 2. Two Disseisors are, and they intermarry, and the Disseisee releases to the Husband, to the use of the Wife in tail, where the Fee-simple is? 3. If Marriage of a poor Maid be a good consideration to raise an use to the Maid, or to A. 4. Lands are given to a Feme Covert, and to her Heirs Females in tail, she takes Husband, hath Issue a Son and a Daughter, if the Husband shall be Tenant by the Courtesy? 5. If the Issue in tail in the life of Tenant by the Courtesy makes a present Lease, if this shall be good against the Issue of the Issue, after the death of Tenant by the Courtesy. Points upon the Statute. 1. IF a Feme Covert sole Merchant be within the Statute. 2. If the Husband of such a Feme by her Bankrupting shall be also a Bankrupt? 3. If the Outlawry of the Husband for the Wife's debt shall make the one, or the other, or both Bankrupts? 4. If the Lands or Goods of the Husband shall be sold for the Debts of the Wife? 5. If the inheritance of the Wife shall be sold? 6. If one born upon the Coast of Flanders is born out, or within the King's Dominions? 7. If one born in the Port of Diep, is born within the King's Dominions? 8. If the Wife of an Alien sole Merchant be within the Statute? 9 If a Wife Alien, and the Husband English, be within the Statute? 10. If the Estate of Tenant in tail a Bankrupt shall be sold? 11. If by Entry of the Commissioners and Sale, the Vendee shall avoid a Lease, which Tenant in tail a Bankrupt might have avoided? 1. If one may release to the use of another, or if an use can be raised upon a release, and it may for three reasons. A Release may be upon condition, for there the case was put in Libro, and consequently to an use. But by 43 Ass. 12. the condition and the release ought to be both in one Deed. 17 Ass. 2. 31 Ass. 32. 2. Secondly, it is a good proof, that a release to a Disseisor may be to an use, when a Disselsm may be to an use; as 34 Ass. 12. 37 Ass. 8. 1 H. 5.4. 15 E. 4.15. All is in the Disseisor until agreement; And 2 H. 7.16. If one disseise another to the use of a third, the first is Tenant until agreement, but after all is in him to whose use, although not to be punished for the force. 3. My third Argument is taken out of the Book of 17 E. 3.5. where it is said, That if the Disseisee take homage of the Disseisor, he shall never have an Assize, for now they be Lord and Tenant, when at first the Disseisor was in the post, and destroyed the Disseisees Estate, and held of the Lord Paramount: So I hold that if before the Statute of Quia Emptores Terrarum, the Disseisee had released to the Disseisor, the Disseisor must have held of him, although it is true, that since that Statute, a release of all his right in the Land, releases his Seignory, as 34 Ass. But Temp. E. 1. Ass. 423. In a Writ of Entry in the Post of Disseisin made by A. to the Demandants Grandfather, which A. enfeoffed the Grandfather of the Tenant, the Tenant answered, after A. enfeoffed my Grandfather, your Grandfather confirmed and released to my Grandfather, reserving homage, and my Grandfather did homage to yours, and my Father to your Father, etc. But he relied upon the Deed, a Tenure was reserved upon the confirmation, in which Case a release makes a degree; See my Moot Book, fol. 121. Then if an use may be raised out of the possession of a Disseisor, if a condition out of a release, and a tenure out of a confirmation, by the same reasons an use may be raised, or declared by release. 2. Two Disseisors and they intermarry, it may seem they are mutually and respectively in by title, for if the Husband make a Feoffment of his moiety, yet he hath title to be Tenant by the Courtesy of her part, and she hath title of Dower to his part after the Feoffment which is in severance of the Jointure. Kelloway's Case, Incerti Temp. fol. 129. This Case is well debated, which was, A. Feme sole, and A. joint-tenants, she marries B. A. releases to B. whether this shall inure to the Husband only, or to the Wife. Keble saith, That it shall inure to the Baron sole, for before marriage he might have enfeoffed the Baron, and it is no reason that he should be hindered to convey the Land to none but the Feme by release, and by the release he shall be Tenant in Common with himself in right of his Wife. But by others the Law is contrary, for he might have enfeoffed others as well as have released to the Baron, also a release to one shall be in many cases to the benefit of another, as a Release to Tenant for Life, etc. 9 Eliz. Dyer 263. This Case seems to make against me, Baron and Feme, and I. S. were joint-purchasers, I. S. released to the Baron, nothing went to the Wife; but I say, that cannot be, for the Baron and Feme being seized by intireties, the release could not make them hold the Land by several moieties. 16 H. 9 Fitz. Herb. Release. 45. Nor do I agree that Case, for there the Case was, that a Woman was Tenant for life, and she takes Husband, the Lessor releaseth to the Husband and his heirs, by Paston, he had the reversion, for the of the Husband was in right of his Wife, and the release to him conjoins that right, but I agree well that the Fee-simple shall be in the Husband, etc. 19 H. 6.35. One makes a Feoffment upon condition that he shall make a Feoffment over, if he doth it not, the Feoffer may enter; but if one makes a Feoffment in Fee upon condition that the Feoffee shall make a gift in tail, and he doth it, the Feoffee, and not the Feoffor shall have the reversion: So here. 3. If marriage of a poor Maid be a good consideration to raise an use, it is good to carry the Fee-simple to the Husband, and the entail to the Wife. Before the Statute of Quia Emptores Terrarum, one might have created a Tenure in performance of a charitable use, as to make or repair a Bridge, or to keep a Castle. 34 H. 8. Brook. p. 51. 6 E. 3.13. One holds by three pence to aid the Sheriff, and good, and another by four pence of the Wapentake Fine, and good, because for to discharge the public contribution. 12 H. 7.18. Keeping of a Beacon, whereby the Country may be warned when the Enemies come. 11 H. 7.12. The same for finding a Chaplain chanting in such a place. And by the same reason that a Tenure may be created, an use may, and the same consideration. For before Qui Emptores Terrarum, If one had made a Feoffment in Fee without declaring an use, it was to the use of the Feoffee, for the Law created a Tenure which was a sufficient consideration; but after no use to the Feoffee, but to the Feoffor, if neither Tenure created, nor use declared, and for that a lease for life, or for years, or in tail is to the use of the Lessee, or Donee, for the Law will create a Tenure of him in reversion: So here is a good consideration to raise the use of the Fee to the Husband, and the Estate tail to the Wife is good, without other consideration than that Tenant in tail must hold of him in reversion. 24 H. 8. Brook. 4. Lands are given to a Feme, and her Heirs Females, and she hath Issue a Son and a Daughter and dies, if the Husband shall be a Tenant by the Courtesy? He shall. Cook lib. 8. Pains Case is reported, as if before that Case the Law had been doubtful, whether the Husband should be Tenant by the Courtesy, when the Wife Tenant in tail had Issue which died, and so she died without Issue. For the Estate was determined, and this was the reason that Leases for life, or years are not good against the Lessor, for Cessante Statu primitivo, etc. yet one may be Tenant in Dower without Issue, and therefore the Estate tail will continue to some purposes: 21 Edw. 3. Dower after a Dying seized without Issue. 21 H. 3. Dower 198. Tenant by the Courtesy may be, although the Issue die before the Wife. 16 E. 3. Aid 129. One may be Tenant by the Courtesy of the moiety of Gavelkind without Issue by the Custom there. Reppes Case, the Child was ripped out of his Mother's Belly, and so after the death of the Feme the Baron could not be Tenant by the Courtesy. But this Question rises upon the Case put in Pains Case; Lands are given to a Feme and her Heirs Males, and she hath Issue a Daughter, and dies, the Husband shall not be Tenant by the Courtesy; for although a Man shall be Tenant by the Courtesy, notwithstanding the Estate tail be spent, yet his Estate must begin by an Heir heritable to the Estate. Here in our Case the Son was the Heir, and by him the Father would have been Tenant by the Courtesy to all other his Wife's Lands, but not to this; But although a Female cannot be Heir that hath a Brother, yet since the Statute of Donis, and by the Equity of that, a Daughter may be Heir by Cook, in Shelley's Case, notwithstanding that he had also a Son, fol. 103. and so here he may be Tenant by the Courtesy for this Land by the Daughter, and of other Land by the Son, if the Wife had been Tenant in tail of other Lands to her, and her Heirs Males. 5. Tenant by the Courtesy is, and Tenant in tail in reversion makes a lease to commence presently, hath Issue and dies, Tenant by the Courtesy dies, if his Issue shall avoid the Lease. This Question is grounded upon the words of the Statute of 32 H. 8. which gives power to Tenant i● tail to make Leases; Provided always, that this Act, etc. shall not extend to any Leases to be made of any Manors, etc. being in the hands of any Farmer or Farmers, by virtue of any old Lease, unless the same old Lease be expired, surrendered or ended within one year after the making of the new Lease; and upon this Clause hath risen many Questions; as Tenant in tail makes a Lease for Forty years not warranted, and Ten years after makes a Lease for Twenty One years to another warranted: Within a year Tenant for Forty years' surrenders, Tenant in Dower surrenders to the Issue in tail upon condition, Tenant in tail makes a Lease, etc. Tenant in Dower enters for the condition, and dies, and Tenant in tail dies, if the Issue may enter? Tenant in tail makes a good Lease for One and Twenty years, Tenant for years' surrenders upon condition, Tenant in tail makes another Lease for One and Twenty years, or three lives, the first Tenant in tail enters for the condition broken; By Philip's, the second Lease is good; Cook contra in Elmers' Case lib. 5. And my Question is, whether Tenant by the Courtesy be within those words Farmers, etc. and he is not? Foster in his Reading upon this Statute, vouched one Richard's Case, That Tenant by the Courtesy was no such Farmer. Points upon the Statute. 1. IF a Feme Covert sole Merchant, by the Custom of London, shall be within the first Branch, or Division of this Statute, which is, using the Trade of Merchandizing, or getting their living by, etc. she is. That there is such a Custom in London, and mentioned, and allowed in our Books. Custom Br. 43. Ley Br. 74. 1 E 4. fol. 6. An Action being brought in C. B. for ones Board in London, he would wage his Law, not. And the difference put between Customs which go with the Lands, as Gavelkind, Borough English, etc. and Customs of Courts, good within the Town, but not here, but a recovery by such Custom may well be pleaded here in this Case, Littleton. Billing saith, A Feme Covert, sole Merchant, by the Custom of London, shall be impleaded sole here, 35 H. 6. fol. 28. The Question was, Whether the property of the King's Jewels could be altered or forfeited, because they were pawned, and forfeited in London. By Needham, in the Exchequer Chamber upon an Information: Custom Brook 5. and Pledges 28. 21 H. 7.17. Departure, Brook 10. in case of a Departure, because he had entitled himself by a new matter, that is, by a Custom which he might have pleaded. 9 E. 4.35. A Feme removed by Habeas Corpus, objected by Pigot, that she and her Husband were both arrested for the Femes debt, because a sole Merchant, and prayed that she might be remanded, for they have no remedy here, this had been allowed and granted to him, had not the Woman come in charged with a Reddidit; So upon an Exigent. The Customs of London have been confirmed by Parliament, 1 E. 37. R. 2. and admit that she could not be sole sued here, as in the Courts of London; yet if a Contract made by her shall bind the Husband by the Custom, the Husband shall be sued here, and it shall be said, the Contract of the Husband, as 21 H. 7. 2. The Husband shall be bound by the Contract of his Wife, if he command before, or agree after, and it shall be accounted his folly to suffer his Wife, and so they be both Bankrupts. To put cases how the Husband shall be prejudiced by the Act of his Wife. 49 E. 3.25. The Husband shall not be charged with the debt of the Wife which she owed before marriage after her death, but if an Action during the Coverture were brought against the Baron and Feme, and Judgement were had against them, and she dies, the Husband shall be charged. 20 H. 6.22. If the Wife buy any thing by the Husband's commandment, or that by his allowance comes to his use, he shall be charged. 9 E. 4.24. Debt against Baron and Feme, the Baron appeareth, the Feme makes default, the default of the Wife is the default of the Husband. Nat. Brevium 120. G. A man shall be charged by the Contract of his Servant or his Wife, if he gives them Authority, otherwise not. 12 H. 7.24. The Baron shall pay Money in the Spiritual-Court, which was charged for corporal punishment of the Wife for a slander. And so it is at our Law, for all Slanders and Batteries, as we see every day. 20 H. 7. Kello. 61. A Feme Disseisor takes Husband, who occupies the Land without notice, or cognizance of the Husband, yet he shall pay damages. I conclude, her Merchandizes are his by the Common Law, and by the Custom. 3. For all the Reasons aforesaid, the Outlawry of the Husband shall make him a Bankrupt by the Statute, and shall make the Wife a Bankrupt by the Custom, and the Statute. Which is plain against all, using Trade of Merchandizing, and getting their living by Buying and Selling, and that if he be non solvent, as he must needs be by his Outlawry, than she must be non solvent; but whether the Creditors by the Commission shall have the Goods, or the King by his Outlawry, That is a Question, that comes not within the compass of this Case, but I shall move that some other time. 4. But I put the Husband to be dead before the Commission, and whether his Goods or Lands shall be sold afterwards is a Question, but not properly upon this Statute; for the death of a Bankrupt is not provided for by this Statute, but plainly by the Statute of primo Ja. the last Clause; and I think that even for the debt of such a Wife, it shall be sold after his death: and although I put it, that a Feoffment is made to him by the Son, which cannot work by way of Livery, because he was Tenant in tail, yet if the Donor will enfeoff the Donee by Deed, this will work to the increasing of his Estate by way of confirmation, 7 H. 6. 5. If the Inheritance of the Feme shall be sold? She hath power to forfeit it by Attainder, or by Cessavit; and by this Statute they may sell all the Bankrupts Lands lawfully, that is, by any lawful course of Conveyance departed with all. 6. The Commission shall be in force against her after the death of her Husband, for if her Husband's death shall not help his Heir, a Fortiori it shall not help her that lives. Also, as the credit of the one, was the credit of the other; for who would trust a Woman whose Husband was known to be of no credit; so the offence of the one, is the offence of the other; and the gains of the one, the gains of the other. 7. But if this Man and Woman be both Aliens, then neither of them are within this Statute, but another course must be taken with them, by the Statute of H. 8. cap. The Woman was born upon the Coasts of Flanders, and the Man in the Port of Diep, and I hold them both born in the King's Dominions; for him that was born in the Port (I mean in a Ship lying at that Port Town) there is small question, but it is within the King's Dominions. It is said of King H. 2. That he was the greatest King that ever was in England, for he had all the Land and Sea under his Dominion from the Orcadeses to the Pireneian Mountains, which sever France and Spain, England and Scotland he had by the Norman Conquest; they and Normandy were laid together by Hen. 1 Anjou Tourain, and Main, were the Inheritance of his Father, the first Plantagenet; Poytiers and Aquitaine, he had by his Wife; Britainy held of him, as of his Dukedom of Britainy; so as all the Sea Coast, even from Calis to St. Sebastian's in Spain was his; so that the French King had no way nor passage to the Sea, nor Jurisdiction in the Sea: It is true, that by the Attainder of King John for the murdering of Prince Arthur, a great part of all this was seized by the King of France, and in the end by R. 2. H. 6. and Queen Mary, all the Land was lost, but the Sea was never lost, witness the Isles of Alderney, (which stand within three Miles of France,) and Gersey, and Garnsey, which the French to this day could never conquer, and yet they speak French, and indeed are all that is left to the King of England, that was any part of the Dakedom of Normandy. But the Coasts of Flanders is more doubtful, for Flanders was never in the Jurisdiction of the King of England, but yet they were never Masters of the Sea. The Lord Admiral's Jurisdiction that he claims, is at this day as well of the Germane Ocean, as in the straits; and we say, the Dutchmen do us wrong to Fish in these Seas. 8. But admit the Woman is an Alien, yet I take it, if her Husband be an Englishman, they shall be both Bankrupts within the Statute, he (as I said) by the Law, and she by Law and Custom; for as the Custom will allow her to be a sole Merchant if her Husband he a Citizen (altho' she be an Alien) so likewise shall her Estate be subject. 9 But if he be an Alien, yet all will be one for his Goods, but his I and's are the Kings; for if he will Trade and Traffic by his Wife and her Credit being English, and having Land, and so have and enjoy the Privileges and Benefits of a Subject by his Wife's legitimation, her Land, and the Custom of the City there, it is no reason but that he should be subject to such Laws as other Subjects are. So, as if the Wife be an Alien, and the Husband a Subject, or the Husband an Alien, and the Wife a Subject, they are clearly in both cases within the Statute for Goods; but my Case is for Lands, and in my Case I hold them both born within the King's Dominions. 10. But the greatest Question in my Case, and a thing never yet put in u●e or questioned is, if a Bankrupt is Tenant in tail, if by the sale of the Commissioners the issue in tail shall be barred? they shall; for the words of this Statute, and of the Statute of 26 H. 8. are all one, The words of 26. are; If any parsons shall be attainted of any High Treason by course of the Common Laws, they shall forfeit to the King's Majesty their Lands. Tenements, and Hereditaments, wherein they have any Estate of Inheritance. Our Statute is, That the Commissioners by Deed enroled, may sell the offenders Lands, Tenements, and Hereditaments, as well Free as Copy, etc. in neither of these Statutes are entailed Lands mentioned. But we see in Walsingham's Case, Ploughed. and in Dowghties Case, and in common experience, that an Estate tail is forfeited, by 26 H. 8.13. But you will say in 26 H. 8. there be words more to carry it, than in your Statute, for that saith, any Estate of Inheritance, and an Estate tail is an Estate of Inheritance; but our Statute hath words which tant amount, for ours is of all Lands, Tenements, and Hereditaments, which he or she may lawfully departed withal, and Tenant in tail may lawfully by fine cut off his issue. And it is set down for Law, that a gift in tail, with condition that the Donee shall not levy a Fine, is unlawful, a void, and repugnant condition; for it is said in Mary Portington's Case, there be three incidents to Estate tails, at the Common Law, by Statutes, and by Custom; By the Statute of 32 H. 8. cap. 28. to levy fines, and no condition can take away that from an Estate, that is incident to the Estate, as it is put of Dower, Tenant by the courtesy. 11. The last is upon my conclusion, admit that the issue in tail could avoid the Lease, whether the Vendee hath the same privilege? If Tenant in tail make a Lease not warranted, and dies, and the issue levy a fine before entry, 33 H. 8. Dier, The Conizee shall not avoid the Lease. 8 E. 3. p. 22. The same is if he accept the Rent, or confirm the Lease before entry. The Lord Bedford's Case, Cook lib. 7. The King's Guardian shall avoid. The King hath the Temporalities of a Bishop, he shall avoid, and all this is for the benefit of the Heir, or Successor; and so in our case it is for the benefit of the Bankrupt, for in the end they must account with him, and he will say, that by their means he ought not to lose his election and benefit of the Lease. The first Case of the second Division. A and B. Disseise C. (who in consideration that A. at his request had married a poor Maid) releases to A. and his Heirs, to the use of B. and his Heirs Females of his Body; they have issue a Son and a Daughter, B. dies, the Daughter makes a Lease to M. for one and twenty years, rendering the ancient Rent, and dies, having issue E. a sole Merchant born upon the coasts of Flanders, and married to F. a Citizen of London born in the Port of Diep, A. grants the reversion to F. who is outlawed for the debt of his Wife, and A. dies, M. enters. The Wife is a Bankrupt, and the Land shall be sold charged with the Lease to M. Points upon the second Case of the second Division. 1. TEnant in Gavelkind of a House purchases Estovers out of Land, in Borough English, to be spent in the House, he dies, his Brother makes partition, if the Estovers shall descend all to the elder, or shall be divided, or if by the division of the Land they are extinct? 2. Two Brothers in Gavelkind, the one is executed for Felony, if the Custom, the Father to the Bough, etc. holdeth place between Brothers, as between the Father and the Son? 3. If one born in Virginia is a Subject born? 4. If the exchanging of Gold for Silver, which is an unlawful act, is buying and selling within the Statute? 5. If a Debt recovered by Information by an Informer, makes the Informer to be a Creditor? 6. If remaining in Execution six months at the Suit of the King, makes him a Bankrupt? Upon the third Case. 1. A Feoffment to two, and they intermarry, the Livery is made, if the marriage interrupts the Livery? 2. If the Lessee is remitted when he enters only to make Livery? 3. A Feoffment to B. and a Feme an Alien, how they shall take, and what part the King shall have? 4. If one naturalised is within the Statute? 5. If a Churchwarden a Bankrupt keeps the Church, if that be a keeping of his House, or taking Sanctuary within this Statute? The third Division. 1. WHat shall be said a Departing of the Realm. 2. A beginning to keep his House. 3. An absenting himself. 4. Taking of Sanctuary. 5. A suffering himself willingly to be Arrested. 6. A suffering himself to be Outlawed. 7. A yielding himself to Prison. 8. A departing from his Dwelling House. A Grantee of a next avoidance presents A. by parol to a Benefice of 5 li. value per Annum, he is instituted, B. a Merchant and Farmer in Ireland, and indebted, by agreement with the Grantor, and the Ordinary pays 10 li. to the poor, and is made a Minister, and presented; A. dies, B. is instituted and inducted, and after is inducted to another Benefice, and recovers glebe to the first of 20 li. value per Annum, he renders himself to the Prison of the Admiral for Trespass in Ireland, the Parishioners detain their Tithes, the Grantee presents to the first Benefice, and his Clerk is instituted. The Incumbent is a Bankrupt within this Division, and the Assignee of the Commissioners shall have Debt upon the Statute for the Tithes, and the Farm in Ireland. 3. Points upon the Statute of 31 Eliz. cap. 6. 1. IF a presentation in consideration that the Presentee gave money to the poor, is Simony? 2. If the Ordinaries making a Minister in consideon that he gave money to the poor, makes the Benefice void immediately after his Induction? 3. If the Parishioners may refuse to pay their Tithes to a Simonist? One Point upon the Statute of 21 H. 8. cap. 13. of Pluralities. ONe hath a Benefice of 5 li. value, accepts a Benefice of 10 li. value, and afterwards recovers Land, to the first of 20 li. value per Annum, whether this makes the first void by the Statute? Three Points at Common Law. 1. IF a Presentation by parol be good? 2. One hath the next avoidance, and presents, and his Clerk is instituted, and dies before induction, if his turn be served? 3. One Presents, and his Clerk is instituted, and before induction, another presents, the first Presentee dies, the second is instituted, if good? Points upon the Statute the Bankrupts. 1. IF a Merchant turning Priest, and then become none solvent of his former debt, be a Bankrupt within these words, Using or exercising the Trade of Merchandizes? 2. Whether lying in Prison in the Admiral's Court for a Cause whereof they have no Jurisdiction, be a yielding of himself to Prison, and if they have Jurisdiction? 3. Whether Creditors of Ireland may sue here that is, whether a man may be Bankrupt here for Debts in Ireland? 4. Whether Debts given by Statute for Tithes be liable to his Debts? A Statute giving an Action of Debt, this Debt may be transferred. 5. Whether Goods in Ireland may be sold by Commissioners here? 1. Grantee of a next avoidance presents A. by parol, to a Benefice of 5 li. value, and the Clerk is instituted. The reason as it seems why one cannot present by parol is, quia (as Linwood saith) Laieus potest variare, and then if he name one, one day, etc. dif qt. Clericus & laicus ●resentat. Again, it may be said, that it is an Authority given to the Ordinary, and Authority ought to be by Writing, and so all things not manurable, as to be Attorney, grt. of Rents, Advowsans and Reversions. But to this the Divines say, they receive the Authority from the Parent, but as they do confess that for Tithes, Testaments and Marriages, they had of the gift of the Laity; so the Laymen have the nomination, etc. from them, for before Churches were endowed with Lands, etc. But I intent this no question; our Books are direct, that an Infant may present. So is 8 E. 2. Fitz. praes. 10. If Gaurdian by nurture present, it must be in the Infant's name. 27 E. 3. fol. 89. The reason is, for he shall be Guardian of nothing but for that which he may account. 26 H. 6. Grts. 12. One may present by a Letter Missive. 19 E. 3. qua. imp. 60. For direct authority by Husey, quod fuit concess. the King may present by parol. But Merchant of Ireland, and indebted, agrees with Patron, and Ordinary, that for 10 l. given to the Poor, the one shall present him, and the other make him Minister; and here rises two of my Questions upon this Statute of 31 Eliz. The Statute names not Simony, but saith, if any for Money, Gift, Reward, or Profit, directly or indirectly, etc. whether giving 10 li. to the Poor to be presented be Simony. 2. M. Justice D. and others that have read here before me do vary, all agree, that to do charitable acts, as to build a Bridge, marry a poor Maid, preach three times a Week, to teach a School, is Simony. But to give to the Poor some say it is not, for Bona Ecclesiae sunt partimonia pauperum, the Apostles distributed communes distributiones, & quotidianas distributiones, at Lincoln to this day Linwood Sacrilege. But I hold it is, for as in our Case, if he pay it before hand, it goes out of his own Purse, if afterwards, though it go out of his Benefice, yet it is to be intended this is benefit to the Patron, for since the Statute of 39 Eliz. cap. 3. made for the relief of the Poor, the more the Parson gives, the less the Patron needs give, and Charity ought to be voluntary, and not for hope of a Benefice, or a Reward. But I will agree, that if it had been in consideration, that he shall maintain the Patron, if he be at any time in want during his life, this is no Simony. Patronum faciunt does, edificatio, fundus, Patrono debentur, honos, onus, emolumentum. Linwood fol. 157. De beneficiis, est & onus alendi Patron. Ecclesiae ubi ad summam pervenit paupertatem, Ergo, etc. But this is likewise given to the poor, to the end that he may be made Minister. Whether this be Simony? I think this is Simony in the highest degree; and the very same which Simon Magus would have committed, for he offered the Apostles money to be admitted into the Ministry, he knew and saw, that they received nothing to their own private use, all things were common with them, and as I said, they distributed to every man as he had need; yet you all know how he was answered, and what became on him, even eo. quod voluit, and yet non potuit quod voluit facere malum. But the Statute for gift, reward, or benefit, to the Ordinary or any Friend of his, and so thought to be Simony in Spiritual Law, yet it is not within the Statute; yes indeed it is, for even as they say, Si quis aliquid dederit alio quam praesentandi aut ordinatori si alias beneficium non esset habiturus, est Simonia. But than saith the Statute, if such a Minister be to be presented, instituted, and inducted into any Benefice for seven years after, that immediately after the induction, the Benefice shall be void, and it shall be lawful to the Patron to present another. But here is the Question upon this Statute, by the first branch the King is entitled, by the second, the Patron, but the King's interest makes it no induction at all. A. dies, and B. is instituted and inducted. 4. But admit here is no Simony in the Case, then riseth another Question, Whether here be any good presentation or not? Where the Case is no more but this, one presents, and his Clerk is instituted, one other presents, the first Clerk after institution, and before induction dies, whether this presentation when another was instituted, be good at all? Or whether his death before induction have made it good, whereby the second may be instituted, and inducted? It is plain, if one present in the life time of the incumbent, the presentment is void. 22 H. 6.27. By admission and institution one is Parson before induction, and Linwood saith, he hath jus ad rem, & in re. But 5 Eliz. Dyer, he hath jus ad rem, but not in re, and Hare and Buckley's Case, he is like a Tenant in Dower, that hath Judgement, but no Execution. Or like a Copyholder after a Surrender, and before admittance, but neither to charge, nor bring action. But as in my Lord Digbies Case in Coke. l. 4. A Parson having one Benefice, is instituted into another, and then gets a dispensation, and then is inducted, the induction shall so relate, that the dispensation is of no force. So his death shall make that he had by the institution no interest at all, but that the second presentation is good, and consequently the induction; But if in the life time of A. B. had been both presented, and instituted, the institution had been merely void, and then the induction could never be good, 13 Ja. B. R. if it be not in the King's Case. 5. Afterwards B. being inducted into the Benefice of 5 l. value, is inducted into another, and then recovers Lands of 20 l. value to the first, whether this first be void by the Statute, 21 H. 8. and I take it, it is not. The Statute is, That having a Benefice of 8 l. accepts of another, and is inducted into the same, than the former Benefice shall immediately be adjudged to be void. And altho' I am of opinion, that this Law shall be taken strict, and even extended by equity, because it is to repress a great inconvenience in the Church, and Commonwealth, That yet nevertheless this word, having, shall be construed, as it is in the Statute of 32. of Wills in Buttler and Baker's Case, pro ut the Case, so here: And here is also this word immediately, which is much enforced there, because the Land could not descend immediately till disagreement. A man infeofts a Feme Covert, and then grants rend charge, the Husband dies, she waves, if she had agreed, it would have avoided the charge, and yet the disagreement shall not make it good. But I cannot compare it to a better Case than the Case of a Ward, the Rule is, If Tenant in Knight's service die seized, his Heir within Age shall be in Ward, with this addition to the Rule, that if he were disseised and might enter, or if he had made a Feoffment upon Condition, and the Condition were broken, if the Lord, or the Heir enter, he shall be in Ward; or if the Tenant for Term of Life of a Ward make a Feoffment, and the Heir enter, the Land shall be in Ward. So be the Books of 17 ass. 18 ass. 18. 19 E. 3. Guard 114, and 48 E. 3. fo. 8. But 12 H. 7.20. Frowick, if the Heir recover by action Auncestrell, he shall not be in Ward. 15 E. 4.13. Urfwick chief Baron the same, or if he pay money to redeem Land, and enter for the Condition performed, he shall not be in Ward, so here I hold the same Rule, if B. had been disseised of parcel of his Glebe, or that it had been forfeited for a Condition broken, the first Benefice would have been void, but not in this Case, I hold, that if his Rectory were a Signiory, and but of 5 l. value, and then he accept a second Benefice, and afterwards by the Escheat of a Tenancy it had come to be of 8 l. or 10 l. value, it shall not in this Case be void. 6. But this Clerk was a Merchant, and turns Priest, and now leaves his old debts unpaid, whether he can be a Bankrupt, because of the words, using the Trade, etc. He is ruled in John Quarles Case; my Lord Chief Justice being Recorder, was a Commissioner, for he left his Marchandizing, and was turned Gentleman. 7. Whether yielding of himself to Prison in the Admiral's Court in an action, whereof their Court hath no Jurisdiction, be a yielding himself to Prison, within the Statute. The Admiral's Jurisdiction is limited 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. the 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 King's 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 Orphan's Case in Coke li. 5. and these Courts ought to respect them of Ireland, as subordinate to them for 34 Assizes. Errors here upon a Judgement 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 Tithes. 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 mere laicus; yet Sacraments ministered 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 fancy Ecclesice, she is afterwards married to another, as the Priest is actually in fancy 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 Calais. 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 man's 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 Tithes are sequestered for not repairing of the Choir, the Creditors grant a Letter of Licence 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 sequestered. 1. The King tenant pur altar 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 releaseth 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 Licence 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 sequestered 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 none solvent, and outlawed in Ireland, B. and C. join 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 seized 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 suit 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 suit 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 Poor to be made a Minister, and to be presented, A. dies, B. is Instituted and Inducted, and after that, is Inducted to another Benefice, and recovers Glebe to the first of 20 l. value per Annum, and after he is none solvent, and renders himself a Prisoner to the Admiral for a trespass in Ireland, the Parishioners detain their Tithes. B. Is a Bankrupt within this Division, and the Assignee of the Commissioners shall have debt for the Tithes, and the Farm in Ireland. 5. Tenant in tail is attainted of Treason, and pardoned, the King grants and restores to him the Land in tail, the Donor Releases, Tenant in tail suffers a recovery to the use of B. a Merchant, and hath issue, and dies, the release is Enrolled, B. is made Steward of the Tower of London, the issue in tail enters B. is none solvent, and keeps himself in the Tower. B. Is a Bankrupt within this Division, and the Commissioners shall sell the Land. 1. If the gift is within the Statute of 34 H. 8. cap. 20. 2. If the reversion be good to the King without enrolment. 3. If the enrolment shall Relate. 4. If the Tower is comprehended within the Statute, or the Equity re vera. 6. A. Feme sole Tenant in tail makes a Lease for thirty years to B. a Merchant indebted to C. and D. she marries E. hath issue F. A. and E. levy a Fine to G. which is reversed for nonage of the Wife, B. lies in Prison for six months, in execution for the debt of C. and in that time becomes indebted to the Gaoler for Victuals, the Wife dies, E. enters claiming as Tenant by the Courtesy, and surrenders to the issue, D. assigns his debt to the King, a Commission is awarded, all this is found by writ of Prerogative, and that B. had nothing. B. Is a Bankrupt within the Statute, but the King shall have the Term, and neither C. nor D. shall be relieved. 9 Tenant in tail makes a Lease for thirty years, and enters into Religion, the issue accepts the rent, and dies having issue, the Father is deraigned, the Lessee being a Merchant at Constantinople, becomes indebted to English Merchants there, and turns Turk, the Father dies, the issue of the issue enters. The Lessee is a Bankrupt within this Division, and the Term shall be sold. Cases upon the fourth Division. What Lands, Tenements, or Hereditaments of a Bankrupt the Commissioners may sell. THE King grants the Manor of S. to A. and his Heirs, to be holden by the service, to be a Justice of the Peace within the Manor, A. Bargains and sells to B. and C. his Wife, and to D. and after A. grants the services to I. S. a Tenant to B. B. and C. are divorced causa Praecontractus of C. with I. S. D. is a Bankrupt, a Commission is awarded. I. S. attorns, D. enters, and manumits a villain, D. is imprisoned in his House and is felo de se, his Heir within age enters, I. S. dies without Heir, B. and C. intermarry, the Deed is enrolled, office is found. The Commissioners may sell all the Land, and the Goods of the Bankrupt except the Villain. 1. The King grants Land to be holden by the service to be a Justice of the Peace: What Tenure this is? 2. A Bargain and Sale to Baron and Feme and a Stranger, and the Baron and Feme are divorced before enrolment: how they shall take? 3. One sells a Manor, and before enrolment the Bargainor grants the services of I. S. to one of the Vendees, and he attorns: If the enrolment shall be good for the rest to others? 4. Bargainee of Land holden in Capite, enters, and dies before enrolment: If his Heir within age shall be in Ward? Upon the Statute. 1. A Bankrupt hath a Seignory, a Commission is awarded, the Bankrupt dies, a Tenancy Escheats: If the Seignory, or the Tenancy shall be sold? 2. Tenant in Capite is a Bankrupt, and dies, his Heir within age, and in Ward: If the Land can be sold? 3. A Bankrupt hath a villain, and manumits him: If the Commissioners can after sell him. 4. A Bankrupt is felo de se: If the Goods shall be sold notwithstanding the interest of the Almoner? The King grants a Manor to A. to be holden by the service, to be a Justice of Peace within the Manner, the Question is, what Tenure that is, if grand serjeanty, Petit serjeanty Tenure by Knight's service in Capite, or Tenure by Soccage in Capite? Neither at the Common Law, nor at any time before the Statute of Quia Emptores terarum, there was no Officer in this Commonwealth, called by the name of a Justice of Peace, and therefore there can be no Authority of any ancient tenure of that nature; But there were divers Officers, who by virtue of their Offices, and as incident to their Office, were Conservators of the Peace, as Sheriffs, Coroners, Constables, and all the Justices of the King's Bench. 17 ass. 5. A Sheriff, or Coroner may take an Appeal, a fortiori in the King's Bench, for there Scot saith, That they are the Sovereign Coroners of the Land. But till 18 E. 3. cap. 2. the name of a Justice of Peace was not known. But whether such a tenure may be created at this day, is a Question? and I think it may, for the King is not bound by the Statute of Quia Emptor. as it is plain by the Books of Com. 240. Bark. Case. He at this day may create new tenors; and Marrow in his Book of a Justice of Peace, saith, That if the King grant a man Land to be holden by being a Conservator of the Peace he is a Conservator by tenure, but he doth not determine what Tenure it is Mr. Lambert vouches a Record at Chester, that one Urianus de Sancto Petro that held medietatem serjanciae pacis, and this, he calls it Tenure in Capite, but rather as an Executioner, than as a Judge. It is thus material to the end of the Case, what Tenure this is, that if it be Knights service, then here's a Wardship, and then it will be a question, whether the King's interest will prevent the authority of the Commissioners? if in Soccage in capite, than that point is cleared. Some would have this to be grand Serjeanty, because it is to be performed in person, and that person is to represent the King's person, and if (by Littleton) it be grand Serjeanty to be a Chamberlain of the Exchequer, who is but a Keeper (as it were) of the King's money, it is grand Serjanty much more to be a Keeper of the King's Peace: Others would have it Soccage in Capite, for it is a Tenure must go with the Land, and so to a person uncapable of the Office (as in this case) to an Infant, or to a Woman, who cannot be a Justice of Peace. And this is an Office, which cannot be transferred, no more than as it is in Kelloway in his cases incerti temporis, fol. 151. If the Office of a Sheriff, or Coroner be granted to one it cannot be granted over, for such an Officer ought immediately to attend on the King without any mean, for the office of a Sheriff, as Sir John Davies saith well, etc. for life, and I am of opinion, that if this grant had been made before primo of E. 3. it had been a Tenure by grand Serjanty, for then the Tenant could not alien without licence upon pain of forfeiture. But now it is otherwise, so as I am of opinion, that this grant being now made, and in fee, it was a tenure by grand Serjeancy for life in the first Patentee, and his Patent was his Commission; But when he doth alien or die it will be a soccage in Capite; And yet if it should turn to be a Tenure by Knight's service in Capite, yet I shall maintain the case at latter end, that the Commissioners may sell the land, notwithstanding that the heir of the Bankrupt is within age, and in Ward. 2. A Bargain and Sale to Baron and Feme and a stranger, and before enrolment, they are divorced, the Question is, how they shall take, as three several Jointenants, or each shall have a third part, or whether the husband and wife shall be jointenants for either of them a quarter part, and the stranger a jointenant with them for a half part? 35 Ass. 15. It is plain, that if one make a feoffment to the husband and wife, and a third person, the Husband and Wife as one person, take the one Moiety, and th'other person the other Moiety, vide Librum. 7 H. 4. fol. 17. That they that be divorced, the divorce will change, and alter their estates, as if Lands be given in tail special to an Husband and Wife, and then they are divorced, the estate tail is turned to a freehold, and they are made jointenants, by dividable Moieties whereas before they held by intireties, and yet if they marry afterwards again they are Tenants in tail again. 3. 39 H. 6.43. The difference is taken between a feoffment before coverture, and after, for if it be before, and then they intermarry, if the Husband alien all and die, the Feme shall have a Cui in vita but for a Moiety, contrary if it be after marriage: Copledikes Case 3. rep. Baron and Feme jointenants, the Baron suffers a recovery of all, and dies, it shall be good for nothing against the Wife. But there have been many Questions raised, how they shall take when a Conveyance is commenced before coverture, and finished after, or as our Case is when the Conveyance is commenced during coverture, and finished after Divorce: as if a reversion be granted to a man, and Feme sole, and they intermarry, and the tenant attorns, they shall take by entireties, because by the Book of 48 E. 3. The Attornment shall not relate, and yet if a Feoffment of a Manor be made to a man Feme sole, and they intermarry, and then the Tenants attorn, they shall be in of the whole Manor by Moieties, because in that case the Attornment will relate, as it is proved by Lunges Case, which was Pa. 31 Eliz. Rot. 20 24. One made a Feoffment of a Manor to which an Advowson was appendent, the Church became void, and the Tenants attorned, it was adjudged that in this case the Attornment should relate, and that the Feoffee not the Feoffer should present. But in our Case, here be two relations together, the Relation of the Divorce, and Relation of the enrolment. I have showed, that the Relation of the Divorce shall change their Estates, and the Relation of the enrolment will give it them, as they were to take at the time of the ensealing of the Indent. 6 E. 6. Bro. 6 E. 6. two Jointenants, and one Bargains and sells all the Land, and before enrolment, the other dies; yet no more shall pass than the Party had at the time of the ensealing of the Deed. Surely the Deed relates to make them in by Intireties, and the Divorce to make them Jointenants, but shall this Relation of the Divorce change, or alter the Estate of the third person. And I take it, this nothing at all concerns the Stranger, nor shall it alter his Estate, but it shall be as a matter of estopel binding the Baron and Feme, but not to be respected of estrangers, and this is proved by the writ of Cui ante divorcium, for there the Feoffment of the Husband stood as a discontinuance till it was defeated: Lex non oberit tertio extraneo, prodesse alteri nemo tenetur, sed obesse vetatur. 48 E. 3.38. Tenant for Life, the remainder for Life, the remainder in Fee, the first Tenant for life makes waste, he in remainder in fee releases to him in remainder for life, this shall not make him who was the first Tenant for life, to be punishable in waste. 43 E. 3.17. An appeal is brought against two as Principals, and an exigent is awarded, now the King is interested in their Goods, they appear, the Plaintiff declares against one of them as principal, and against the other as accessary, the second desires to have restitution of his Goods, he shall not, for alteration of the plaint by and between the Plaintiff and Defendant, shall not by relation of any matter ex post facto prejudice the King or a third party's interest. But before this Divorce, A. grants the services to I. S. a Tenant to B. the Husband, here ariseth three Questions at once. 1. If one bargain to two, and afterwards levies a Fine or Feoffment to one of them, whether it be not such a disagreement to the former Contract, as by that bargain the other shall have all, and the Feoffee nothing? and I think the other shall have all, and the Feoffee or Conizee nothing. 2. Whether if one bargain for a Manor, and before enrolment the Bargainor grants by Fine or Feoffment parcel of the Manor, to the Vendee, whether this destroys not the bargain for all? It doth. 3. There is Husband and wife, and the Husband purchases by bargain and sale to him and his Wife, and their Heirs, and before enrolment, the Husband takes a Fine, or a Feoffment of all, and then the Deed is enrolled; what shall the Wife have? I think she shall have nothing. For the first, and for all these questions, we must agree upon this ground, which is set down in Hinds Ca Coke li. 4. That if a man buy Lands by bargain and sale, and before enrolment he accepts of a Fine, or a Feoffment, he is in by the fine, and the enrolment is of no force. The next rule is, That if Lands be conveyed to two, and the one will disagree in Court of Record, or disclaim in the tenancy, all vests in the other. 17 E. 3. fo. 6. a Placito 18. A gift in tail was made to the Husband, and Wife, and they had issue, and the Baron died, the Wife disagreed, all descended to the issue. 10 E. 4. fol. 13. The Tenant infeoffs the Lord, and a stranger, the Lord disagrees, the stranger shall have all. 20 E. 4. Fitz. Nuper obiit 14. If the Defendant in a Nuper obiit disclaim in the Blood, the other Coparcener shall have all by descent, and a Mordancester of all. 22 H. 6.44. A Praecipe against two if one disclaim, all vests in the other. So here, in as much as the use passed by the contract, if one of them will waive that contract, and take himself to another bargain, than the first contract will stand good for all to the other, and the enrolment for all shall relate to the use of the other, and shall be paramount to the fine, and destroy the Conveyance by the fine, as it is in Pophams' Case. 5 Eliz. 2. But than comes in the next question, this fine was but of part of the thing bargained and sold, and therefore it will not destroy the contract for all, but only for part, that is for a Moiety of the services. I take it that this contract being entire, being destroyed in part, is void for all, Qui partem individui facit nihil facit. I will example it with other Cases. 34 H. 6.21. It is a good plea in an action of debt for rent, that the Lessor entered before the day of payment, for the contract was entire, and therefore the rend not apportionable. 22 Ass. 53. Lease for life rendering rend for Land part in Franchises, and part in Guildable, in an Assize brought at Common Law, for the rent, Conizance shall not be granted, for the rent is entire, and the King's Court shall be preferred contrary to Thorp, as it is in 46 E. 3.8. But if the Land is in question, conizance shall be granted for so much as lies in Franchises. 9 E. 4.1. One is to lease a Chamber, and find the Lessee his board, for 6 s. a Week, in an Action of Debt for the Money, non demisit cameram is a good Plea, for destroy the contract in part, it is destroyed in all, for it is entire. 30 H. 8 Little Broke. I sell my Horse, and another man's for 20 l. to be paid at a day to come, and before the day, the other man recovers his Horse against the Vendee, yet the Vendor shall have an action for all the money. So here the Consideration of the money raises the use that's an entire Sum, and if you will have that the Demesnes shall pass by the contract for the use, and the services, or part of the services shall pass by the grant, what a confusion would that be, and how much of the Consideration went for the one, and what for the other. I might that way maintain my conclusion, that the whole Manor passes to D. 9 E. 4. Choke: A Manor consists of Demesnes, and Services, sever them and the Manor is destroyed, and in Sr. Rol. Heiwards Case none shall take by fraction of Estates. 3. The third question being, that the Husband purchases Lands by Bargain and Sale to him and his Wife, and before the Deed is enrolled, the Husband takes a Fine or a Feoffment of the Land, to him and his heirs, and then the Deed is enrolled, what shall the Wife have? and I say (as I said) she shall have nothing. 3 H. 7.9. It is plain, that if Lands be conveyed to a Feme Covert, if her Husband disagree, the Feoffment made to her is made void, and it shall return to the Feoffer. But if a Feoffment be made to I. S. and a Feme Covert, and her Husband disagrees, all vests in I. S. Rutland's Case, li. 5. Cook is, that the Husband by Indenture limits Lands to the use of his Wife, but before the fine levied, by other Indentures he limited the same to other uses: so in that case before the assurance is perfected, the Husband by whose means, and bargain making, this use was to rise to the Wife, before this Assurance finished, makes a new bargain for himself, and the Wife if he disagree can take nothing. Kenn's C. Cook. lib. 7. It is the Husband hath the power to contract for the use, although it be of the Wives Lands. 4. The next matter that I intent a question upon the Statute of inrolments, is (supposing this Land is held in Capite) Lands held in Capite are bargained and sold to a man, and before the deed is enrolled, the Bargainee dies, his heir within age, whether here be such a dying seized, and a descent, as his Son shall be in ward? and I think it is. There be divers Cases, where the heir shall be in ward, and yet the Ancestor died not seized. 48 E. 3.8. If there be Lord and Tenant, and the Tenant is disseised and dies, his heirs within age, the Lord may seize, etc. 20 H. 6. Tenant in tail aliens, and dies, his heir within age, his heir shall be in Ward to the Donor. 33 H. 6.5. Tenant for life, the remainder in fee, he in remainder dies, his heir shall not be in ward for the remainder, but if the Tenant for life die, then by matter ex post facto he shall be. 11 H. 4.61. By Hank. and Norton. If the heir recover in a writ of ayel on Cocinage he shall be in Ward. If the Father lose by error, or false verdict, If the Son reverse the Judgement by error or attaint, he shall be in ward: If the Father recover and dies before entry, or execution, and the Son sue execution, he shall be in guard. Points upon the Statute. Swinburn Fol. 175. I will that my villain be manumitted when my Son comes to age, my Son dies before the age, the villain shall be at Liberty, when the Son would have been of age. D. Enters, and manumits a villain: The Question is, a man hath a Manor to which be villains regardant, he becomes a Bankrupt, manumits the the villain, Commission is agarded, if the Commissioners may sell the villain? and I have concluded they cannot, For the villain being once at liberty, in this case is enfranchised for ever. I grant that in divers cases a villain may be enfranchised pro tempore, and yet be a villain again. 13 E. 4.2. As if Tenant in tail will enfeof his villain of the Manor, the issue shall have a Formedon and reduce both the Manor, and the villain. 33 H. 6.13. Enfranchment by Tenant for years, or for life, is good but for their time. And it is much controverted, whether if a nieff marry a Freeman, she be not for ever enfranchised. Old Nat. Brevi. fol. 6. If her Husband die she shall be a nieff again. 33 E. 3. Statham Vil. She shall be neiff again even to her own Son, when her Lord and Husband dies: But as the Law saith, there is nothing more respected than life, and liberty, So I am of opinion, and I have authority for it, that if she be once married, either to her Lord, or another Freeman, she is at liberty for ever. 31 E. 1. Fitz. vill. 46. It is first questioned, and some there are of 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 enfranchised for ever. Britton fol. 78. She is enfranchised for ever. Natura brevi. B. 78. G. I will conclude with the first authority; by Fitzherbert Britons opinion seems reasonable, if she divorce not herself, or acknowledge not herself 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 women's dowers, the King, Lords, Holy Church, ancient Records, Devises, Infants, Purchasers and possessions; But next life, Liberty of all things is most favoured. 18 E. 4.6. No amercement lies against the Sheriff's return, yet in a writ of Libertate probanda, if the Sheriff returns, that he hath not 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 Accountant 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 Seignory, 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 tied. 6 H. 4.1. Tenant in tail discontinues, and dies, and leaves a Seignory 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 Seignory, 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. Blow. 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 preferred, 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 seized 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 strengthening, 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 Duchy 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, than here is a Dealing, if not contrary, for Ea possimus quae jure possimus, for as it is said by Herle for a Maxim, that all Leets, Hundreds, and in 2 E. 3. all Ports, and Cities are the Kings, and the Lords have but the use and profits of them under the King; so it is said, all Gaoles are the King's Prisons, and none others of the Land, for life, and member belongs to him only, and the Lords have only the regard; and that is the reason, that in all Corporations in their Charters they always have a Grant, and liberty to have a Prison. Auditors by the Statute of W. 2. cap. 11. may send the Bailie, found in Arrearages to Prison; by the Book, it must be to the next Gaol, though it be in another County, otherwise an Action of false Imprisonment lies. So our Commissioners must be careful to pursue their Commission; but because the Statute saith, they may dispose of his body at their discretions, therefore to stay him in his own House, or in one of theirs, till he be further examined, I think it not amiss, although I have heard, that some Commissioners have been blamed for not sending him to the Gaol. 1. A. makes a Feoffment in Fee to B. by livery, within the view, B. Covenants, with C. to stand seized to the use of D. his Son, A. enters and makes a Feoffment to B. D. enters, and makes a Lease for years to E. a Merchant, upon condition to have in Fee, E. is a Bankrupt, C. disagrees to the Contract, E. becomes a Recusant Convict, and hath not Lands sufficient to pay 20 l. a Month, the Commissioners sell the Land, the King seizes the Term, the condition is performed. The Vendee shall have the fee-simple. Points. 1. IF livery within the view may be countermanded by livery in fact? 2. If the Feoffee, to whom livery is made within view before entry, Covenants to stand seized to another use, and after enters, if the Covenant good, that is, if by his entry he by relation is in from the time of the Livery? 3. If a covenants with B. to stand seized to the use of C. and C. enters, and B. disagrees to the Covenant, if the Land shall revert to A.? 4. If a Bankrupt hath a Lease for years upon condition to have fee, if the Commissioners may sell the Land with the possibility? 5. A Bankrupt hath a Term, and is a Recusant convict, if the King or the Creditors shall have the Term? 2. The King, Lord, Mesn, and Tenant of Borough English Land, the Tenant by Licence of the King to create Tenors, devises the Land to A. in fee, to hold of his Heirs by Knight's service, A. is attainted of Felony, and devises the Land to his eldest Son a Merchant Bankrupt, the Mesn enters, the younger Son reverses the Attainder, the eldest waives the Devise. The Commissioners may sell all the Land. Points. 1. IF the King may grant to the Tenant of another to create new Tenors in prejudice of the Mesn as to Escheats? 2. If Tenure in Borough English, which is always Soccage, may be altered into Tenure in Knight's service? 3. If it may be altered as to the Custom to descend to the youngest? 4. If it may be altered as to the Tenure, but not as to the Custom, if the youngest Son shall be in Ward? 5. Upon the Statute of Wills 32 H. 8. Lord and Tenant, the Tenant is attainted, and Devises his Land, and dies, the Heir reverses the Attainder before entry of the Lord, if the Devise is good? 6. One Devises Land to a Merchant, and he becomes a Bankrupt, and waives the Devise, if the Commissioners may sell the Land? 3. A Merchant makes a Lease for Life to an Infant, the remainder to the King for Life of A. B. enters, and dies seized, the Deed is Enrolled, A. dies, the Infant enters, the Lessor, in consideration of marriage, covenants to stand seized to the use of himself and his Wife, and their Heirs, the Infant at full age makes a Feoffment, the Heir of the Disseisor enters, the Lessor is a Bankrupt, the Commissioners sell, Lessor dies, the Feme waives. This is a good Sale of all the Land in Possession, and Reversion. Points. 1. WHether the enrolment doth not relate to avoid the descent? 2. Whether the Entry of the Infant reduce the reversion? 3. Whether the Sale not being good against the Wife, is made good by her waiver? Vide ante the Principal Case. 5. One grants a Rend Charge to a Physician, and his Heirs, pro Consilio impenso & impendendo, the Physician is his own Apothecary, and becomes non solvent for Drugs and Simples, which he used in his Art, a Commission is awarded, the Physician keeps his House for fear of Arrests, the Physician brings a Writ of Annuity, and recovers by erroneous Judgement, the Commissioners sell the Rent, the Recoveree reverseth the Judgement, the Physician dies. This Sale of the Commissioners was good for this Rent, but not to take effect during the Life of the Physician. Points. 1. IF an Annuity in Fee be granted pro Consilio may be sold? 2. Whether he have any Election after he is Bankrupt? 3. Whether the bringing of this Annuity which is reversed, be an Election? 6. One makes a Gift in Tail rendering Rend, and dies, the Rent is arrear, a Disseisor enters, and levies a Fine, five years past, the Heir of the Donor is a Bankrupt. The Commissioners shall sell the Rent, and the Arrearages. Three Points upon the Statute. 1. UPon the Statute of Fines, the Second and Third upon the Statutes of Limitations, and Bankrupts. 1. Upon the Statute of Fines, that is, if Fines of the Land shall be a Bar for the Rent? 2. And 3. Upon the Statute of Limitations: If Commissioners may sell when the Party was concluded by the Statute of Limitations: 6 Jacobi Banco Regis, Executors notwithstanding no Seisin in their Testator by fifty years, shall destrain by the the Statute of 32 H. 8. 7. A. and B. Tenants in Common of the Manor of D. and Jointenants of the Manor of S. They by Deed Poll bargain and sell Common of Pasture, within the Manors for a Cow to C. and his Wife, and to the Heirs of their two bodies begotten, C. the Husband grants the Common to E. in Fee, the Wife dies without issue, E. is a Bankrupt. E. had Common for a Cow, but it is neither Land, Tenement, nor Hereditament, which may be sold by the Commissioners. 8. The King grants to I. S. that he only for his life shall have the Importation of Steel, he assigns his Patent to I. N. a Merchant, I. N. becomes non solvent, and after acknowledges himself to be a Villain regardent to the Honour of Hampton-Court, a Commission is awarded. I. N. Is a Bankrupt, and the Commissioners may sell all his Lands and Goods, but not the Monopoly. 9 A. and B. Jointenants' Covenant for natural affection to stand seized to the use of C. for life, C. enters, and B. dies, C. dies, the Heir of B. makes a Gift in Mortmain, the Lord before entry bargains and sells the Seignory to I. S. who enters, and makes a Gift in Tail, the remainder to I. N. a Merchant, Tenant in Tail is attainted of Treason, and suffers a common Recovery, Office is found, I. N. becomes a Bankrupt, Tenant in tail dies without issue, I. N. waives the remainder. The Commissioners may sell the Moiety of this remainder. 10. One grants an Advowson to a Feme Covert sole Merchant, the Church becomes void, the Husband in consideration that I. S. doth enter into Bond to preach twice a Week, presents him to the Benefice, the Feme becomes a Bankrupt, the Husband dies, the Feme waives the Grant, the Commissioners within the six months sell the Presentation, and the Advowson. This is a good Sale of the Advowson, but the King shall present. 5. Division. What Copyhold Lands of a Bankrupt the Commissioners may sell, and in what case Composition shall be made with the Lord, and in what not. 1. A Tenant by Copy of Wh. Acre surrenders to the use of B. for years, upon condition that he will not do waste, and after he surrenders the reversion into the hands of two Tenants to the use of C. a Merchant in Fee, the Lord makes a Feoffment of the Acre to D. C. departs the Realm, and after is none solvent, a Privy-Seal is awarded against him, the Tenants present the surrender to the Court of the Lord; C. will not return, the Commissioners sell the Reversion to E. B. makes waste, E. tenders Composition to D. who refuseth it, and E. enters for the Condition broken. The Sale is good, and the entry of E. congeable, but no Composition is due. Points in the Case at Common Law. 1. TEnant by Copy surrenders into the hands of two Tenants, and the Lord separates the Freehold from the Manor, if the surrender is void? 2. Tenant by Copy, surrenders to one for years, and after to the use of another in Fee, if good without Attornement? 3. If the Tenants are bound to Present the surrender at the Lords Court, after he had separated the free hold from the Manor, That is, whether the Presentment shall not interest the party to whose use, etc. by relation from the surrender? 4. If Tenant by Copy surrender to the use of one for years upon condition, and after he surrenders the reversion to the use of another in fee, and after the condition is broken, if the Grantee in reversion shall enter for the forfeiture by the Statute of 32 H. 8. Cap. 34. 5. If a Copyholder Lessee for years by surrender commits waste, if this is a forfeiture to the Lord, or only to him in reversion, or of the reversion? Points upon the Statute. 1. IF a Merchant who departs by licence, and upon a privy Seal will not return, but is none solvent, shall be a Bankrupt? 2. One had only the freehold of a sole Copyholder, if such Copyhold may be transferred by sale of the Commissioners? 3. A Copyhold is surrendered to the use of a Husband, who will not be admitted, if the Commissioners can sell? 4. Whether one fine, 2. fines, or no fine be due to the Lord? 5. Admitting a fine were due, and the Lord after tender refuseth it, what remedy the Vendee hath for the Land, or the Lord for the fine? 1. When there is a Lord of a Manor, and Copyholder of Inheritance surrenders into two Tenants hands, and then the Lord makes a Feoffment of the Copyhold, I take it that this severance of the Free hold, and of the Copyhold from the Manor shall not destroy the surrender, For when the Copyholder hath once surrendered, he hath dismissed himself of all his interest, and the right is in the party to whose use the surrender was made. Bunting Ca Coke. li. 4. The death of the surrenderer, the death of the Tenants, nor the death of the party to whose use the surrender was made, shall not alter the Case. But the party to whose use such a surrender is made, hath such an interest as shall descend to his heir, for his heir shall be admitted, and by the same reason his interest shall remain, notwithstanding the Lord sell the Free hold (as it is said in Morrels case,) the custom hath so established, and fixed the estate of the Copy-holders' that the Lords severing it from the Manor, cannot alter it. It was adjudged, that the custom of a Manor being, that if Tenant for life by Copy die, his Wife shall have her Widow's estate, the Lord dissolved his Manor, the Copy holder's Wife died, he took a new Wife, and then he died, the Second Wife had her Widow's estate, and yet there was no Court, whether she could come to have the death of her Husband found and presented, and where she might be admitted? etc. But admit that the Surrender had been made into the Lords hands, out of the Court, as by Melwich his Case it may, or admit it had been made in Court, and the party to whose use it was made, had tendered the Lord his due fine, and the Lord would demand more, and so defer the admittance: In these Cases, the Law is plain, that the party may enter, and no Action lies by the Lord against him. And what if the Lord dissolve the Manor, shall that alter the case? No, no more than if a Copyholder of inheritance die, and the Lord severs the Freehold from the Copy before the Heir be admitted, this shall not destroy the Heirs estate, but he may lawfully enter, and hold it for ever without admittance. 2. But here notwithstanding this severance of the Free hold from the Manor, the two Tenants present the Surrender the next Court held by the Lord for the Manor. The Question is first, whether the Tenants were bound to do it or no? And the next, what is wrought by it? And I take it they ought to present it; For notwithstanding the Copyhold be severed from the Manor, yet they are not severed, they be Tenants still, and they must do their duties, and the rather, because it is not altogether severed, for Tenant for years of the Copyhold, remains still Tenant to the Lord, and his rents and duties are to be done to the first Lord, and not to the Copyholder in reversion: But to what use is this presentment of theirs? I take it to this use. It shall have relation to the Surrender and interest of the party, to whose use it was made from the time of the Surrender. Like as an Office found 10. years after an escheat, will entitle the King to all the mean profits from the death of the party; Or as a Deed acknowledged to be Enrolled, shall be Enrolled notwithstanding the death of any of the parties, and shall have relation from the date of the Deed, to entitle the Bargainee to the profits: Or as a Legacy is given by Will, cannot be sued for till the Will be proved, and then the Probate makes the Legacy due by relation, ever since the death of the Testator; Even so the Presentment hath relation to entitle the party to whose use the Surrender was made, from the time of the Surrender; And this appears plainly by Rowswels Case in Chancery, Feme Tenant for life of a Copyhold, 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 Husband's 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 another's 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, Copyhold estate is within the Statute of Champerty, and Maintenance, 32 H. 8. Cap. 9 Dean and Chapter of Worcester's Case, Coke li. 6. Copy hold is within the Statute of 13. Eli of Leases by spiritual persons, Lands usually let, etc. Lillingstones' Case adjudged 27. Eliz. That if the Lord infeoff the Copyholder to another's use, that the Copyhold is saved by the Proviso in the Statute of 27. H. 8. Margaret Podgers Case. A Copyholder is bound by Fine, and 5. years. The general rule is laid down in Heydons Case, That all Statutes that may be for the good of the Copyholder shall extend to them, therefore I am of opinion, that such a Grantee shall enter for nonpayment 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 licence, for than it is a plain lease at Common Law, and an Ejectione firm will lie: But here the Lessee comes in by the Lord's 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 Licence, and when by Surrender, for I take him to be as if he had a particular estate with a remainder over. In Podgers Case foe 107. Si cop. pour vie sit semble all case del Duke of Norff. Points upon the Statute. A Merchant being a sufficient man departs the Realm, and beyond the Seas becomes none 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 departed the Realm without licence, 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 departed, 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 King's hands; and for that a Precedent was found in the Exchequer, where in Anno 19 E. 2. It was William de Britain's 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 Idiot, 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, etc. 2. Points upon the Statute. One hath the freehold and another hath the Copyhold of one only acre severed from the Manor, this is plain, as it is in my Lord Coke 4. reports in Case. This Copyhold 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 Copyhold 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, than no sale, and it shall be intended such Copyhold whereof admittance may be. And in Dr. bonham's 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 Commissioners may sell, then there is their Authority; the Vendee shall compound, that is a second action which must be done, if it may be done. Hillary 38 Eliz. A Grant was made to the Mayor and Commonalty of London, that the Mayor should have the search, etc. of all Handicrafts, and should punish them, but granted no Court where the same should be punished; this was good for to search, and to discover; but void for him to punish, but it must be punished, as it may be otherwise. The Statute of 5 Eliz. cap. 13. of Highways saith, Who comes not at the common days shall forfeit, and orders, that the offence shall be presented at the next Sessions, etc. Upon pain of Forty Shillings; no Certificate is made, yet the offence shall be punished. 3. But now we are upon the point of Fines, a question rises in this Case, whether two Fines, or but one, or no Fine be due to the Lord; and I think a Fine is due. Plainly two Fines should have been paid, one to the Lord of the Manor upon the surrender of A. to C. and another upon the sale by the Commissioners, as it is in the 4th. Report foe 22. the heir surrenders before admittance, the Lord shall have two Fines. But in Hubbard and Hammond's Case, it is said no Fine is due to the Lord before admittance; for the admittance is the cause of the Fine; and if after admittance it be denied, it is a forfeiture. But I take it in this case, the Lord shall have no Fines; for the Statute must have a reasonable construction; and indeed for all parties according to equity; and in all Statutes where the ordering of things is referred to men's discretions, equity and good Conscience ought to respected; and therefore it is said, 3 E. 3. An account ought to be amended by the Auditors, according to equity and good faith: But what remedy hath the Lord for it? 4. But here a Fine is tendered, and refused; now the question is double, 1. What remedy generally? 2. Whether it be lost for ever or not? For the first, if it had been in a case that the Lord could have admitted him, he should have had the ordinary remedy, as all Lords have for their Fines, that is upon presentment of a Surrender, or of the death of a Tenant, or of sale by Commissioners, the order is to call the Party that should be admitted, and if he come not in time, to seize his Land: But here can be no Calling, for here's no Court: Surely, I think as the Vendee may enter without admittance, so the Lord may enter again upon him, and seize the Land till his Fines be paid; but these Fines have been tendered, and refused. We see that tender and refusal in many cases is peremptory, as Littleton in case of Mortgage. 27 E. 3.88. Un distr. pur dam. pheasant, & si avoid, the Tenant pleaded, that before the taking, at the taking, and after the taking, he tendered sufficient amends, and the Avowant refused, he hath lost his damages, and shall pay damages, etc. 22 Hen. 6.44. A Man is bound in an Obligation to stand to the award of J. S. he awards that the one shall release the other, who tenders a release, the other refuses, in Action of Debt, sur le ob. tender and refusal is a good plea, sans dira uncor Priest. But yet in the same case it is put, That if Money had been awarded, and tendered, and refused, the Bond had been saved, but the duty had remained. 45 E. 3.9. The Lord destrains, the Tenant tenders, the Lord refuses, yet the Rent is not lost, but at another time the Lord may distrain. Brian, If the Tenant tender his homage, and the Lord refuse, he cannot destrain, but upon a request, if the Tenant refuse, he may destrain. So here, the Tenant tenders his Fine, the Lord refuses, I take it the Fine is not lost; but after a new request the Lord may seize. 5. The last point upon my Statute is, a Bankrupt purchases a Copyhold, and the Tenant surrenders into two Tenants hands to the use of the Bankrupt, and now he will not be admitted: whether the Commissioners shall sell the Copyhold? And I think they shall by the very words of the Statute, which are, That the Commissioners shall sell all Lands which the Bankrupt shall purchase with any other Persons of trust, or to his secret use; If then they may sell Lands wherein he hath secret use, much more, Lands wherein he hath an express use: And in this Case, if his negligence to pray to be admitted, or his absence beyond Sea shall hinder the present Sale, and he die, his heir may be admitted after his decease: And then a greater Question will rise, Whether the Land may be sold, or not? 2. A Copyholder of Inheritance, where the Custom is, that the Wife shall be endowed, surrenders into the hands of two Tenants to the use of the Mayor and Commonalty of D. in Fee, and dies; the Wife marries with I. S. a Merchant, the Mayor and Commonalty are admitted, the Heir of the Copyholder enters: I. S. and his Wife affirm a Plaint in the Lord's Court, in nature of a Writ of Dower, and recover against the Heir, the Mayor and Commonalty enter, I. S. and his Wife sue a Precept, in nature of a Scire facias, against the Mayor and Commonalty, for to have a a Writ De Dote assignanda, and damages: I. S. becomes a Bankrupt, the Commissioners sell the Copyhold, and assign the damages which shall be recovered; the Vendee compounds with the Lord. This is a good sale for a third part of the Copyhold, during the Coverture, and a good Composition; but the Assignment of the Damages is void. 3. A. Is Tenant in Tail of a Manor, where the Custom is, that the Wife of a Copyholder shall have a Widow's Estate: A. grants white Acre to B. by Copy for life, and after he makes a Lease of white Acre for life to F. the Wife of B. dies: A. makes a Feoffment of the Manor to G. and all the Tenants attorn: A. dies, B. takes a second Wife, and dies, the Issue in Tail enters into the Manor; the second Wife takes M. to Husband, who becomes a Bankrupt; the Commissioners sell white Acre, the Vendee compounds with the Issue in Tail, and enters, F. dies. The Sale is good during Coverture, and the Composition is good. 4. Baron and Feme have issue, A. a Daughter, the Baron dies, the Manor of Sale is given to the Feme for life, the remainder to the Heirs of the Baron and Feme: A Copyholder surrenders to the use of himself in Tail; the remainder to A. in Fee, the Feme takes a second Husband, and hath issue B. another Daughter and dies, A. enters, the Copyholder suffers a customary recovery, and dies without issue; his Heir being a Merchant, and Bankrupt: B. enters, the Commissioners sell the Copyhold: the Vendee compounds with B. The Sale is good, but the Composition is good but for a fourth part. 1. A. Shall have a Moiety as Heir of the Husband, and the Moiety of the other Moiety as Heir of the Feme, and B. the residue. 2. If Tenant by Copy, by Recovery may bar the Remainder? 3. If when the Lord is in Remainder, it be not so annexed to the Fee, that it cannot be pulled out by a Recovery? 5. The Manor of D. is holden of the Manor of S. by Copy, and I. S. holds a House, and Land Common for ten Cows of the Manor of D. by Copy in Fee: The Lord of D. surrenders his Manor to the use of I. S. for life, who is admitted accordingly: I. S. grants the Common by Copy to A. a Merchant, A. is admitted, and is a Bankrupt; I. S. dies, the Lord of D. enters, the Commissioners sell the Common, the Vendee compounds with the Executors of I. S. The Common cannot be sold, and if it might the Composition shall be with the Lord of D. 6. Tenant by Copy is disseised, and the Disseisor is admitted Tenant by the Lord; the Lord bargains and sells the Manor to I. S. in Fee, by Deed enrolled, the Disseisee becomes a Bankrupt; the Commissioners sell the Copyhold, the Vendee compounds with the Bargainer. This is a good Sale, and a good Composition. 1. If Tenant by Copy may be disseised, or ousted, and this shall be no disseisin to the Lord? 2. If the Lord by the admittance of the Disseisor hath dispensed with the disseisin in part, and so he may apportion his own wrong? 7. A. disseises B. of the Manor of S. and dies seized, C. the Son of A. enters, a Copyhold escheats; D. enters and disseises C. and Leases the Manor for years to E. who grants the Copy to F. in Fee; F. dies, his Heir is sworn of the Homage, and becomes a Bankrupt; D. dies, B. enters, the Commissioners sell the Copyhold, the Vendee compounds with B. and is admitted; the Heir of D. recovers in a Mortdauncester, C. recovers in Entry sur disseisin, and B. recovers against him in a Writ of Right. The Sale is good, and the Composition good. 8. A. and B. joint-tenants in Fee of a Manor, they grant white Acre to I. S. for life by Copy; A. enters into Religion at Rouen, B. makes a Lease for years of the Acre to C. to whom I. S. surrenders; B. dies, A. is deraigned, C. surrenders to A. I. S. becomes a Bankrupt; the Commissioners sell the Copyhold, the Vendee compounds with A. the Heir of B. enters. This is a good Sale, and a good Composition for a Moiety. 9 Six Copyholds escheat, the Lord grants them to A. a Merchant indebted, and after the Lord makes a Feoffment of the Freehold of the Copyhold to B. C. and D. the Merchant gives over Trading, B. disseises C. and D. the Merchant continues his debt by Interest, seven years pass, C. and D. recover against B. and have judgement to hold in severalty; C. and D. make partition; the Merchant renews his Bonds with the Creditors, and keeps his House, the Commissioners sell the Copy-holds, the Vendee compounds with B. C. and D. severally admitted. The Sale is not good, because the Merchant is no Bankrupt; but if it were good, the Composition was good, and B. C. and D. have three Customary Manors. The Sixth Division. What Fees, Annuities, Officers, Goods, Chattels, Wares, Merchandizes, and Debts of a Bankrupt may be sold by the Commissioners. 1. BEfore Quia Emptores, one makes a Feoffment in Fee, rendering Rend to be holden by Foreign service, and a Tenant dies, and his Heir dies before entry, and a Stranger abates, the Lord becomes a Bankrupt, the Heir recovers in Mortdauncester, the Commissioners sell all the Debts of the Lord. The Vendee shall have two actions of Debt for two several Reliefs. 1. If the Heir shall pay Relief when his Ancestor had but a Possession in Law? he shall, Kelloway 173 6 H. 8. 2. If Debt lies against the Heir, for relief due, after the death of his Grandfather? 13 E. 3. Relief 6. A distress lies. 3. If Fee-farm made before Quia Emptores shall pay Relief? 45 E. 3. fol. 15. now it shall not. 4. If Tenant in Knight's Service shall pay Relief? Kelloway. 5. If the Heir shall pay relief for Land which he had by recovery? 6. Debt lies for relief by the Lord himself, 23 H. 8. Brook. It lies for his Executors. 7. If relief is such a debt or duty which the Commissioners may sell? 2. A. Tenant of two Acres herriotable covenants to stand seized to the use of himself for life, the remainder to his Son in Fee, with clause of revocation, and for money paid, he bargains one Acre to B. B. dies, the Lord seizes a Herriot, the Heir of B. re-enfeoffs A. A. revokes the first Deed, the Lord is a Bankrupt, A. dies, the Commissioners sell all the Lords Goods to C. C. takes relief of the Heir of A. C. Shall have detinue for two Herriots against the Executors of A. 1. If two Herriots, or but one are due notwithstanding the repurchase? 34 E. 3. Herriot 1.2. They are due. 2. If the power of revocation be not gone notwithstanding the repurchase? 3. If acceptance of relief of the heir may be pleaded by the Executors in an action against them for the Herriot? 26 E. 1. H. 6. Quaere. 4. If detinue lies for a Herriot-Custom? 6 E. 3.29. R. 2. Herriot 4. and 5. the Lord may seize it in all the goods. 5. If the property of the Herriot is so vested in the Lord before seizure, that the Commissioners may sell it? 3. The King grants the Office of Aulnage of London to a Merchant stranger for years, with a Fee of 20. l. per annum, who assigns it to a Merchant Denizen indebted, who discontinues his Trade of Merchandise, and lives by his Office, and enters into Recognizances for his debts, and makes I. S. does deputy, and is made Steward of the Tower of London, the Recognizances are forfeited, and he keeps himself in the Tower, Office is found. The Commissioners shall neither sell the Office, nor the Fee. 1. If the Lease be good, because no Office of trust, or confidence? 2. If discontinuance of Merchandise is an exemption from the Statute, when the Creditors have taken new assurances? 3. If the Steward of the Tower is not sole Judge there by Prescription? 4. A Feme sole Alien, grants to A. a Scottish Merchant, the Office to be the master of her horse, with a Fee of 20. l. per annum for his life; she takes a Husband, who is made King of England, who by his Letters Patents grants the Mastership of the Queen's Horse to I. S. with a Pension out of the Exchequer, the Scot becomes a Bankrupt. The Commissioners shall not sell his Office, but they may sell his Fee, and the Vendee shall have an Annuity for it against the Queen. 5. A Resiant is enjoined in the Leet to reform a public nusans by him made before such a day, upon pain of 10. l. at the next Court he is presented, because no reformation is made; and there then the Tenant Traverses the Presentment, that he is not guilty; the Traverse is disallowed, the Lord becomes a Bankrupt, the Affeerors resuse to affeere the amerciament, the Commissioners sell all the debts of the Bankrupt to A. A. Shall have an action of debt for this amerciament. 6. A. sues execution of a Statute Merchant, and the Conizors Land is extended at too high a value, and refused by the Extendor, and delivered to the Jurors, B. defeats the execution by extending an elder Statute; A. is a Bankrupt, the Commissioners sell all his debts, the elder Statute is satisfied, the Jurors will not enter. This is a good Sale of the possibility to extend, and the Vendee shall have a Scire facias against the Tenant by the elder Statute, and the terretenants, and the Jurors to revive the former Execution. 7. A. and B. Tenants is Common, grant a rent of 10. l. per annum to C. who brings an Annuity against A. and recovers, and after he distrains and Avows upon B. and becomes a Bankrupt, the Commissioners sell the Annuity, and the rent, a fourth part of the Land descends to the Vendee. The sale of the Annuity, and also of the rent were good, but he shall Avow upon B. but for 5. l. per annum. 1. If he can bring an Annuity against one, and distrain the other? 2. How a Rent shall be apportioned when part of the Land descends to the Grantee? 3. If a Rend charge be within this Statute, because it is not within the words? 8. A Manor in Surry is giving to Baron and Feme, and to the heirs of the Baron, the Baron dies, his heir, being a Merchant, claims the heirlooms; the Executors of the Father claim them as Chatells, the heir sells the Reversion, and becomes a Bankrupt, the Commissioners sell the heir-looms. This a good sale, but the Wife shall have the use of them during her life. 9 One makes a Feoffment upon condition that the heir of the Feoffee shall infeoff I. S. the Feoffee grants a Rend charge, the Feoffer enters for the Conditions, and dies; the Feoffee re enters, and two Copartners being the heirs of the Feoffor, bring a Mortdauncester against the Feoffee, and recover the Land, and damages, they have other Land in execution by Elegit for the damages, the one dies, the other is a Bankrupt. The Commissioners shall sell all the Extent. 10. A Disseisor makes a Lease for life to A. who makes a Lease for years to B. a Merchant stranger, who is made Denizen, upon Condition that he shall not departed the Realm, the Disseisee confirms his estate, Tenant for life dies, the Disseisor enters, B. being non solvent, by Licence of the King (with a Non obstante) departs the Realm, the Commissioners sell the term, the Vendee enters upon the Disseisor. The sale of this term is good. 11. A. By Deed Poll demises the Land of B. to C. a Merchant, who enters, B. reenters, C. in an action of Covenant, grounded upon the Deed, recovers 10. l. damages against A. C. being indebted is committed to Prison by the High Commissioners for non payment of a Fine by them assessed, and there he remains by six months; the Commissioners assign the damages to D. who sues a Scire facias in his own name against A. and hath Judgement to have Execution, A. brings a Writ of Error against C. of the first Judgement, C. confesses the Error. The Judgement is erroneous, and yet the assignment of the damages is good, and D. shall have Execution. 12. A. Makes a Jointure to his Wife an Alien of part of his Land, and dies, she is made a Denizen, and takes a Bankrupt to Husband, the Commissioners sell the Jointure, part of it is evicted by elder title, she sues a Scire facias, and recovers other Land in recompense, an Office is found, the Commissioners sell as well the Land recovered in value, as the residue which was not evicted. The sale of the Land recovered in value is good, but not for the residue. For New-Inn. The Case. THe Land of A. is extended for the debt of B. and A. grants the reversion to C. in Tail, B. attornes, and hath a Liberate, A. grants the reversion of C. to D. a Feme sole Merchant Denizen of Ireland; C. commits Treason, and attorns, and suffers a common recovery to the use of himself; D. takes E. an Alien and Londoner to Husband, C. is attainted, D. continues sole Merchant, E. is naturalised, D. is indebted, and elopes, C. dies without issue, E. enters, and is non solvent, a Commission is awarded, and proclaimed, D. hath issue and dies, an Office is found, the Term expires. Conclusion The Land shall be sold by the Commissioners. 1. When Land is extended, and before a Liberate, it is to be considered in whom the Land is, 3 E. 6.68. It is said, that goods extended are in the custody of the Law, but yet not so out of the Conizors possession, but that they may be extended for the King's debt due by the Conizor, 41 E. 3. Fitz Recognizance 38. Land was extended by the Sheriff, and before Liberate, the Lands were extended for the King's debt, and so process stayed, 33 H. 8. Broke Recognizance 41. Liberate may be taken out seven years after the extent, 41 E. 3. fol. 1. It is questioned whether the party, or the King shall have the mean profits of Lands taken by cape grand, till a petty cape. Also it will be objected, that a reversion will pass by words of possession, but possession will not pass by words of reversion. Frokmerton and Tracy, 43 E. 3. and Smith, and Stapleton. But except we prove this reversion to be well granted, we are at an end of our case, for all the rest depends upon this point. We say then, that when Lands are extended, it is plain, they are out of the Conizor presently: And although it seems, that for the time they are in the King's hands, yet when the Liberate comes they are in the Conizee ab initio, and by strong relation. So as if a Manor be extended to which an Advowson is appendent, and the Church becomes void, and Liberate sued, the Conizee (and neither the King, nor the Conizer) shall present. So if Arrearages of Rents fall due between the extent and the Liberate, the Conizee shall distrain, and avow for them. Wherein I will compare it to Longs Case, that was in the Common Pleas, Pasch. 31 Eliz. Rot. 2024. one granted a Manor to which an Advowson was appendent, and made Livery, the Church became void, and afterwards the Tenants, attorned, the Grantee shall present, and the Attornment shall relate to make the Grantee in from the time of the Feoffment. And although it is said, 8 H. 5. fo. 10. that no man can attorn to a grant of a reversion, that hath as yet nothing in possession, but hopes or possibilities, As if Tenant for life 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 Enrolled, 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 myself; for that shows 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 rend day accrues, the Lessor may have an action of debt against the Lessee without ever making any averment that the Lessee entered. 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 entitle 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 encumbrances 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 entitle 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, than a fortiore might he do, and execute all instrumental Acts, as if he had been Lord of a Manor, and a Copyholder (after the Treason, and before Attainder) had surrendered 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 man's 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 King's privilege, 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 entitle 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, than 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, pelham's 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 entitled 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, etc. and these that were born in times passed 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 demesnes of the Crown of England, as other Islands are, as the Wight, and Jernesey, Virginia and Greenland, and therefore the Kings of 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 King's 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 shows, 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. ●. 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 the 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. ●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 ●●e, and be sued, than 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, etc. But you must intent 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 naturalised, whether he be within the Equity of the Statute, because he is not within the words? But tantamount: amplify 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 she 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 herself 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; fo● 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 courtesy 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 courtesy. First, note in many cases where there shall be Dower, but yet no tenancy by the courtesy, 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 courtesy, the same it is if the issue be ripped out of his Mother's 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 none 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 Grazier that hireth Grounds, and buys Cattle and feeds them, and sells them again is a Bankrupt: but if he graze his own , contrary. 7. A Clothier that sets poor People a Work, but himself doth nothing but buy Wool, 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 Handicraftsman that is in the compass of the Statute of 5 Eliz. is a Bankrupt, although he buy his Materials wherewith he makes his Ware, and sells his Ware again, as a Shoemaker. 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 Britain, between Calais and the Isle of Oleron is a Bankrupt. 3. One born in Ireland, or the Isle of Man, or in Garnesey, etc. 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 departed the Realm, and he departs, yet he is a Bankrupt; but if it were for another's 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 naturalised 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 Licence, 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 naturalised 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, etc. 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 Merchandise, 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 Licence, 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, etc. 10. A Merchant indebted, departs the Realm to Merchandise, and having loss by Tempest, returns no more, this is not a departing, etc. but an absenting himself. 11. One recovers debt in the Admiral's Court, upon a Contract made upon the high Sea, and the Defendant being a Merchant lies in execution in the Admiral's Prison for six months, he is a Bankrupt. 12. An Apothecary is made Churchwarden, 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 man's House, and is a Bankrupt, it is his House. 14. There be now in England no Sanctuaries, therefore all privileged places where the King's 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-inns, is a Bankrupt, yet they have no exemption from Officers, but usus, & condo, etc. 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 Choir is not repaired, the Tithes are sequestered, 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, etc. may lawfully departed 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 merchandise, 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 Jailor by inheritance; contrary of all Offices of trust, that are but for life. 9 A Monopoly granted to one, and his Assigns, as the sole making of Cards, etc. 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 Bankrupt becomes Lunatic, and Office is found, yet the Land shall be sold. 12. A Bankrupt is Tenant in Tail, the remainder in the King of the Provision of the King, sale by the Commissioners shall not be good against the issue in Tail; for the Bankrupt neither by Fine, nor Recovery could lawfully part with it but for his life. 13. A Bankrupt hath a Seignory, the Commissioners seize, before assignment a Tenancy escheats, the Tenancy shall be sold, but if after seizure of the Seignory, and before the Escheat the Bankrupt dies, the Commissioners shall not sell by this Statute, but by the Statute of primo Jac. the Tenancy shall be sold. 14. Two joint-tenants, one is a Bankrupt, the Commissioners seize a Moiety, the Bankrupt dies, no part shall be sold by this Statute, but by primo Jacobi a moiety shall be sold; for that Statute is, that the Commissioners shall proceed, as if he were living. 15. A Merchant takes a Wife after he is a Bankrupt, she shall not have Dower against the Vendee. 16. A Feme Covert sole Merchant inheritrix in London is a Bankrupt, her land shall be sold, and her Husband shall not be Tenant by the courtesy. 17. A Bankrupt commits Felony, the Land shall not escheat, but the Commissioners may sell it. The fifth Division. What Copyhold Lands shall be sold, and in what case Composition shall be made with the Lord, and in what not. 1. THe Lord sells the Freehold of one sole Copyholder to A. the Copyholder is a Bankrupt, the Commissioners shall sell. 2. The Lord is to be compounded with for the Admission by the Statute, and in this Case here can be neither Surrender nor Admission, yet by the equity of the Statute the Lord must be compounded with. 3. Commissioners sell a Copyhold, the Vendee tenders to the Lord a competent Fine, which the Lord refuses, and will not admit the Vendee, the Vendee may enter. 4. If a Copyhold be entailed to a Bankrupt in a Manor where Recoveries are used to cut off intails, Commissioners may sell, but if no Custom be for Recoveries, contrary. 5. A Copy hold is surrendered to the use of a Bankrupt, who will not take it up, or sue to be admitted, because it shall not be liable to his Creditors; the Commissioners shall sell it. 6. A Copyhold is surrendered to the use of a Bankrupt, who will not be admitted; the Commissioners shall sell, but the Vendee shall pay two Fines. 7. A Copyholder (where the Feme by Custom shall have Dower) surrenders into the hands of two Tenants, and dies, the Feme marries a Bankrupt, the surrendree is admitted, the third part of the Feme shall be sold, but no remedy for the damage betwixt the death of the Husband, and the admittance. 8. One surrenders Copyhold to the use of a Bankrupt, the Lord dissolves his Court, yet the Commissioners shall sell. The sixth Division. What Annuities, Fees, Goods, Chattels, Debts, etc. Commissioners may sell. 1. B. Hath a Lease for years made unto him upon condition that he shall not alien, yet the Commissioners may sell, and this is no forfeiture. 2. B. hath the next advowson, the Church is void, the Commissioners sell the Presentation, the Vendee shall present, and no Simony. 3. A Bankrupt purchases Land with warranty, the Vendee of the Commissioners shall not vouch, but he shall rebut. 4. Commissioners sell a rent, or reversion, this is good without Attornment. 5. A Bankrupt becomes Lunatic, his goods shall be sold; as before of Lands, etc. 6. Lord and Tenant, the Lord is a Bankrupt, the Tenant dies, the Commissioners shall sell, the money, or debt due for relief. 7. The same of a Herriot. 8. The Lord is a Bankrupt, the Tenant dies, the Commissioners sell the Relief-money, and the Herriot, the Executors pay the Relief, the heir shall not pay a Herriot. 9 The King Leases the Aulnage of London for years, the Lessee is a Bankrupt, the Lease shall be sold. 10. Lord of a Leet is a Bankrupt, the Commissioners shall sell the Amercements past, and the Vendee shall have an action of debt. 11. A Lease for years is devised to A. if he live so long, the remainder to one B. the Commissioners shall not sell the possibility. 12. Land is extended, and delivered to the Extenders, because too high, another defeats this Execution, by extending of a former Statute, the first is a Bankrupt, the Commissioners shall sell the possibility. 13. A Rend charge shall be sold, yet it is not within the words. 14. The same Law of a Common in gross. 15. It is the Custom in Surrey, that certain Heir-Looms shall go with the Land, and not to the Executors, the Land is entailed, Tenent in Tail is a Bankrupt, the Heir-Looms may be sold from the Land, and the issue hath no remedy. 16. Two Tenants in Common recover damages in trespass, the one dies, the other is a Bankrupt, all the damages shall be sold. 17. A Bankrupt recovers damages by an erroneous judgement, the Commissioners assign them to the Creditors, who recover them in execution, the Judgement is reversed, the sale was good, but the Assignees or Vendees shall make restitution. 18. A villain is a Merchant, the Lord seizes all his goods, and imprisons his person for six months, he is a Bankrupt, the Lord shall have his goods, but his debts shall be sold. 19 A Villain Merchant is a Bankrupt, the Lord seizes his goods, yet the Commissioners may sell. 20. A Merchant by Outlary becomes a Bankrupt, the Creditors shall have his goods, and not the King. 21. A Merchant Bankrupt commits Felony, his Creditors, and not the King shall have his goods. 22 A Bankrupt is felo de se, the Almoner shall have his goods, notwithstanding this Statute, but by primo Jacobi the Commissioners shall have them. The seventh Division. Who shall be said a Creditor that shall be relieved, and and who not, and what shall be said to be a just debt intended? 1. ONe sole Creditor shall not by this Statute sue the Commission; for it ought to be at the Suit of his Creditors. 2. Merchant Mortgages his Lands, the Mortgagee may choose to come in as a Creditor. 3. A Merchant enters into a Statute, or Recognizance, the Conizee is a Creditor, else he shall have neither Land, nor money, if he come not, and contributes. 4. A Merchant pledges goods and becomes Bankrupt, the party need not come in. 5. The plaintiff that hath the defendants body in execution, shall not come in to be relieved. 6. But he that hath a judgement for a debt may come in before execution. 7. One that hath the Bankrupts body in execution upon a Statute Merchant may come in. 8. One that recovers damages in Waste, or Assize, or trespass, shall not be relieved. 9 An Informer recovers money forfeited by a special Statute, he shall not be relieved. 10. A Bankrupt is indebted to the King, Commissioners seize the Bankrupts goods, process comes to the Sheriff, he shall levy the King's debt before sale; but if they had sold before the process awarded, the Sale would have been good. 11. A Merchant is imprisoned, and becomes debtor to A. six months past, A. shall have relief; for he is not a Bankrupt by relation. 12. A Bankrupt is committed to prison by Commissioners, because he will not answer interrogatories, the Jailor gives him credit for victuals, he shall not be relieved, although he come in before distribution, or any man that trusts him after. 13. A Bankrupt is indicted and convicted of erecting of Cottages, and entertaining of Inmates, contrary to the Statue of Eliz. 31. Cap. 7. which gives 10, s. a month forfeiture to the Lord of the Leet where the offence was committed, and an Action of debt for the money: he shall not be relieved for this debt: because no Creditor. 14. A Merchant is bound as Surety for a Gentleman, and neither of them will pay, but for fear of Arrest the Merchant keeps his house; the Creditors shall be relieved. denham's Case. 15. An Executor becomes Bankrupt, a Legatee shall be relieved. 16. A Decree is made in Chancery, that a Merchant shall pay 20. l. to I. S. as a debt due in equity I. S. shall be relieved. 17. But it is decreed in Star Chamber, that a Merchant for a wrong done to I. S. shall pay him 20. l. and the Merchant becomes a Bankrupt, I. S. shall not be relieved. 18. One hath a debt not yet due, he shall be presently relieved with a rateable part of abatement for the time. 19 Four Months are past, and distribution made, and other goods and Lands come or descend to the Bankrupt, the Creditors shall have no relief of them. The eighth Division. What Conveyances made by a Bankrupt, before or after he is Bankrupt, shall be good, or fraudulent and void. 1. A Merchant to defraud his Creditors, conveys his Lands to the Crown, with a secret hope, that some friend of his (a Courtier) shall get them again, this Conveyance is void; for the King shall never be made an instrument of deceit, 18 E. 3. 2. A Bankrupt takes a Feme after he is a Bankrupt, she shall not be endowed, but if Lands afterwards descend to him, of that she shall be endowed. 3. A Bankrupt is disseisor, Commissioners sell the Land, and before the deed be Enrolled, the disseisee 〈◊〉 to the Bankrupt, the Vendee shall have the 〈◊〉 his release: Quaestio difficilis. 4. A Bankrupt to defraud his Creditors by Coven with a Lord of a Liberty, becomes a Clerk convict, yet the Commissioners shall sell. 5. Lord and Tenant, the Tenant makes a Feoffmen to deceive the Lord of the Wardship of his heir within age, the Tenant becomes a Bankrupt, the Land shall be sold; for although the Conveyance were fraudulent against none but the Lord, yet there was a Trust between the Feoffor and the Feoffee. 6. A Conveyance made by a Merchant in Marriage with his daughter is good. But if he make such a Marriage, and Conveyance of purpose to defraud his Creditors, with an intent, that his daughter shall rather have his goods, than his Creditors, the Land shall be sold. The ninth Division What shall be said to be a Concealment of a Bankrupts Goods, Lands, Estate, or person. 1. THe Bankrupts Wife refuses to be examined, no remedy. 2. The Bankrupts Wife is examined, but refuseth to discover, either her Husband's estate, or his person, she shall not be committed. 3. A Merchant bona fide, sells Land to I. S. and afterwards becomes Bankrupt, I. S. may choose to show his Evidence. The tenth Division. What Declaration, or Account the Commissioners shall make to the Creditors of a Bankrupt, and what remedy is there for the same. 1. IF the Bankrupt die, yet his Executors shall have an action against the Commissioners, but if all the Commissioners die, their Executors, nor the Executors of the Survivor are not accountable. 2. If after seizure, and before distribution all the Commissioners but one die, he cannot proceed alone, but a new Commission shall be awarded, and the new Commissioners shall call the old to account. 3. If the Commissioners will not pay a Creditor his rateable part, he hath his Action of debt. The eleventh Division. What authority the Commissioners have over the body of the Bankrupt. The twelfth Division. What danger it is to be out of the King's protection by the force of this Statute. FINIS.