John Ernly Esq ; Plaintiff , Henry Lord Falkland , and Jo . Doddington Esq ; Defendants .

IN an Action upon the Case upon a Promise the Plaintiff declared , That whereas upon the 17th day of February in the year 1653. there was a Communication betwéen the Plaintiff and the Defendants concerning an Horserace to be run the usual four Mile Course at Burford in Oxfordshire ; upon that Agréement it was concluded betwéen the Plaintiff and the Defendants to run it with a Bay Stone-horse against a Gray Stone-horse on Thursday five Weeks next after that day , and betwixt the hours of 2 and 4 in the afternoon . The one Rider to weigh 16 pound more than the other , who was to weigh 10 Stone ; and he or they that lost , were to pay the other or others 200 l. when required . And whereas likewise the Defendants in consideration the Plaintiff promised to perform his part of the said Agréement , promised to perform their part thereof ; and then alledges that although he performed his part of the said Agréement , and that the Race was run at the time , and that the Parties then weighed the weights agreed on , and that the Plaintiffs Horse won the Race , yet the Defendants refuse to pay the 200 l. and avers a particular request , and lays it to his damage of 300 l. Vpon Non assumpsit pleaded , a Verdict passed for the Plaintiff and 200 l. damages given him . And it was now moved in Arrest of Judgment by Hardres for the Defendants . 1. Because the Promise , which is the ground of the Action , is not sufficiently averred , but laid only by way of Recital ; viz. Whereas the Defendants promised , &c. which is not a direct positive Averment , as there ought to be , In 4 Rep. Sir Gilbert Gerrard's Case , it is resolved , that the word sciens is not a direct Averment upon which a Traverse or Issue may be taken : So in 5 Rep. Semain's Case , Praemissorum non ignarus is adjudged to be an insufficient Allegation of Notice , where Notice is necessary ; and that it ought to be directly and certainly alledged , 7 H. 7. 2. In Trespass for cutting down and carrying away Trées , resolved that the words praetextu cujus is no certain and positive affirmation of Seisin to make good a Plea ; and in 3 H. 7. 11. & 3 Ed. 4. 21. it is ruled that Declarations ought to be certain , because they contain the ground of the Plaintiff's Action . Mich . 43 & 44 Eliz . Garforth and Clerk's Case , in an Action upon the Case for words , the Plaintiff declares that slanderous words were spoken Quorum tenor sequitur in haec verba ; and this was adjudged to be nought after a Verdict , for want of a certain Allegation , though the words were actionable in themselves . Hill . 22 Car . B. R. Entr. Trin . 22 Car . Rot . 173. Waterhouse versus Power , In an Action upon the Case the Plaintiff alledged that the Defendant inter alia made such a Promise ; and this was ruled to be nought , though after Verdict , for want of certainty . So here the word Whereas Quod cum is not a direct and positive Affirmation , but an imperfect speech , and therefore ill . Mich . 24 Car . B. R. Dawson versus Parkly , Trespass of Battery and entry into Lands laid with a Quod cum adjudged to be nought ; and there it was said to have been often adjudged so . There is a diversity betwixt Matters that are but Conveyances and Inducements to Actions , and Matters that are the very grounds and foundations of Actions . Inducements need not be so precisely alledged ; and therefore to say quod cum sit indebitatus , &c. in an Action upon the Case , is well enought : So in 34 H. 6. 4. in Decies tantum the Record in the former Action needs not be recited at large , because it is but a conveyance to the Action : But in a Scire facias upon a Iudgment the whole Record must be set forth , 19 H. 6. 49. acc . so here it is well in the Inducement but not in the Promise it self . Trin . 35 Eliz . B. C. Hughs versus Robotham in an Action upon the Case upon a Promise , the same difference was taken . See the Case now reported , Cr. Eliz . 302 , 303.

2. Every Issue must contain a certain positive affirmative and negative : but in this Case there is no direct affirmative , being laid with a quod cum , and consequently this is a Jeofail not aided : For though an immaterial Issue be aided , as in an Action of Debt upon a Bill , Issue taken upon payment , as in 5 Rep. Nichols Case ; yet an unformal Issue , in which there is not an affirmative and a negative , is not added ; and so it has been often adjudged in the Common Pleas .

Another Exception he took was to the last averment , viz. That the Parties then weighed , and the word then he said must relate to the proximum antecedens which is certain , and not to an uncertain time ; as in 28 H. 8. Dyer 14. b . Bowles Case , the word then related there to the Feast and not to the Parties death , tho the Parties death had been last mentioned . And if in this case it be taken to relate to the last certain time that has been mentioned before , then the performance does not appear to have been according to the agreement ; for the time last mentioned is four of the Clock in the Afternoon , whereas they ought to weigh the Weights agreed upon at the time of Riding . Wherefore he prayed that Iudgment might be arrested .

Atkins pro Quer ' . As to the Objection concerning the Relation of the word then , He said it ought to be taken according to Common Exposition , and with respect to the Subject Matter , especially since here it is said that they weighed the Weights agreed upon : To the other Objection he said that the word whereas was certain enough , as the word licet in Det , Plow . Com . 121. Buckleys Case . And in Det it is the usual Form to begin with a quod cum : And so the Presidents are in this Court , which make a Law ; V. Plow . Com . 128. New Book of Entr. fol. 2 , 4 , 12. and the Old Book of Entries .

At another day the Chief Baron gave his Opinion , that no Objection of weight had been made , but only that concerning the quod cum ; But he conceiv'd the Promise certainly enough alledged , and said , it was as direct an affirmation as the word licet in the Case afore-mentioned : But that that sway'd with him , he said , was Presidents , of which there are two in the New Book of Entries , and seven in the Old , where a quod cum is used in the very Clause of the Promise . And Saunders in Buckleys Case , Plow . Com . agreed , if Presidents were so ; and yet the words in a Formedon in descender ut Filio & haeredi are as material as the words here in question ; wherefore Iudgment was given pro Quer ' , Pasch . 39 Eliz . Matthews and Cranes Case upon a Writ of Error in the Exchequer-chamber was cited in Point .

Jones versus Williams .

IN Det for Rent upon a Lease for Years , the Plaintiff declares that J. S. upon the 20th of Nov. 13 Car . made a Lease to the Defendant for 99 years , if three lives should so long live , rendring Rent , and that afterwards the Lessor devised the Reversion to the Plaintiff , & postea scilicet , on the 6th day of Nov. anno 13 Car . dyed ; and after a Verdict pro Quer ' , it was moved in Arrest of Judgment , that the Death of the Lessor was alledged to have happened before the Lease made .

Atkins pro Quer ' . The scilicet being repugnant to what goes before is to be rejected as void ; for what comes after , it is superfluous , and needed not to have been expressed at all ; for the certain day of his death is not material . Vid . Hob . Rep. 79 , 171 , 213 , 284. and Plow . Com . 171. accordant in the Case of Hill and Grange . This is like the Case of an Anglice , 10 Reports , Osburnes Case , which is but expository like this .

Shaftoe pro Defendente . The death of the Lessor here is material , for otherwise the Plaintiff has no cause of Action .

Williams pro Quer ' cited three Iudgments , in Ejectment , Trover and Covenant , where the scilicet was rejected , because contrary to what went before , and mentioned to be before the Lease made , and before the Trover and the Covenant . Et Adjornatur . Nota , This Case has often been adjudged in the Upper Bench in my time , in Ejectment , Faux Imprisonment , Trover & similibus .

The Attorny-General versus Straite .

IN an Information in the Exchequer-chamber by English Bill for small Tythes appertaining to the Rectory of Southwycke in Dorsetshire ; The Defendant in his Answer did not admit the Plaintiffs Title , but alledged an Extinguishment of the Tythes by unity of Possession . And the Plaintiff made no proof of the value of the Tythes , nor what Cattle had been depastured in the place , where , &c. And for that cause the Court upon hearing of the Cause , refused to direct a Tryal at Law , because no particular damnification appeared to them , whereon to ground a Decree for the Plaintiff , if the Verdict should pass for him ; and thereupon the Bill was dismiss .

Hardwycke versus Newre .

THE Plaintiff exhibited his Bill as Parson of Haddam in Hartfordshire for predial and other Tythes , and upon proof of the quantity and values , had a Decree for the whole ; and the Clerks said , That this was the constant practise where a Bill is exhibited for predial Tythes , and the single value only demanded .

Barnehurst versus Cabbot .

IN an Action upon the Case upon a Promise of the Defendants to pay to the Plaintiff a Det owing by a third Person , if he would forbear to sue that Person ; the Plaintiff averted forbearance hitherto ; and after a Verdict for the Plaintiff , Shaftoe moved in Arrest of Judgment , because the Plaintiff had not alledged in particular how long he had forborn , that so it might appear to the Court , whether he had forborn a conventent time , or not ; and cited Home and Gibbons Case , Pasch . 29 Eliz . B. C. consideration quod differret diem solutionis , adjudged to be naught . And Pasch . 36 Eliz . B. R. Rot . 88. Sackford cont . Phillips , where a Promise was laid as this is , and the like averment made , and held to be ill . And in Mich . 21 Jac . which Case began Hill . 18 Jac . Maps versus Sir Isack Sidley ; In an Action upon such a Promise as this , the Plaintiff averred that he had forborn a twelve-month , and held good ; and a diversity was there taken betwixt , where a certain time is alledged , and where not .

Obj. Hob . Rep. 216. Bidwell and Cattons Case .

Resp . There an Action was actually commenced , which is not in our Case .

Mr. Thomas pro Quer ' . He cited Hill . 42 Eliz . C. B. Smith and Campions Case . A promise and averment exactly the same with ours , and adjudged good ; and two Iudgments were cited , Pasch . 9 Jac . The Executors of Hangers Case ; forbearance for a quarter , shall be understood a quarter of a year , according to common parlance . Vide Pasch . 37 Eliz . May and Alvarez , reported Cro . Eliz . 387. so here the Plaintiff has averred forbearance hitherto , which is certain enough by computation .

Chief Baron . It appears here upon Record how long time the Plaintiff forbore , and that is as well as if it had been particularly expressed :

Another Exception was taken because the Plaintiff alledged himself to be a Debtor to the Protector without more , and does not say of England , &c. sed non allocatur , &c. Et adjurnatur .

At another day the Chief Baron gave Iudgment for the Plaintiff that the consideration was good ; Banes Case , 9 Rep. and the averment sufficient ; for that it appears upon Record how long the forbearance was ; and therefore no particular averment necessary , Wymarkes Case , 5 Rep.

Webb versus Beale .

IN Trespass for an Assault and Battery , and taking of the Plaintiffs Goods , the Defendant as to the Battery pleaded not guilty , and as to the taking of the Goods justified , for that the Protector and all his Predecessors , Kings and Queens of England , had time out of mind had a Court of Record in such a place , and that in that there was a Plaint entred against the Plaintiff , and that he was attached by his Goods , and because he did not appear and put in Bail that they were forfeited according to the Custom of the Court , to the Lord of the Court . The Plaintiff replyed , De injuria sua propria , &c. generally ; to which the Defendant demurred .

Shaftoe pro Quer ' . The Replication is good : I agree to what is resolved in Crogates Case , 8 Rep. that when a meer Matter of Record is pleaded , then such a Replication is not good ; but here is not a meer Matter of Record , but what is mixt and interwoven with Matter of Fact . Besides , It appears throughout the Pleading that the Court here spoken of , is but a Court-Baron , which is not a Court of Record : He cited 22 Ed. 4. 33. b . Hob . Rep. 1 Edit. 344. Peter and Staffords Case , 34 H. 6. 49. Co. Mag. Charta .

Latch and Windham pro Def . This Exception is unexpected , being against Crogates Case , which was a Case solemnly settled upon consideration of all the Books , which seemed to vary : And the main reason of the Case is , because there ought not to be various and mixt Matters put in issue to a Iury , but some one certain and special Matter according to the Rule of Law there laid down . Wherefore because this Matter ought not to be drawn in question after Crogates Case , they prayed Iudgment for the Plaintiff . Et Adjurnatur .

Crosses Case .

EXceptions were taken to the Return of an Outlawry , upon a Writ directed to the Warden of the Cinque-ports , and Lands found in St. Peters , in Thanet , liable to the Outlawry . 1. Except . Because the Outlawry is recited to have issued at the Feast of the Conversion of St. Paul in 1653. without saying in what year of our Lord Christ ; sed non allocatur ; for 1653. must relate to the year of our Lord , and can have no other intendment . 2. St. Peters is not alledged to be in any County . 3. Lands are found in the particular Occupation of such and such , but the value of every particular parcel is not found , but by the lump , tht in toto the Lands are of such a value , sed non allocatur . And for the second Exception it was prayed that it might be amended and made to agree with the Record in the Common Pleas before the Clerk of the Outlawries , this here being but a Transcript of that : And Pollard and Fitz . Wrihams Case was cited , where it appeared that but 11 were of the Iury , and after Plea and Issue , ruled and ordered to be amended , according to the Record of the Outlawry ; and so it was ruled here . Quod nota .

Wales & Ux ' versus Norton & Ux ' .

IN an Action upon the Case for these words , spoken by the Defendants Wife , of the Wife of the Plaintiff , viz. She is a forsworn Whore , and a perjured Whore , and forswore herself at Watermans Hall concerning the Servant of I. S. Vpon not guilty pleaded there was a Verdict for the Plaintiff , and Hardres moved in Arrest of Iudgment , that the words as here laid are not actionable : He grounded what he said upon 4 Rep. 13. b . In Actions for words , the sense and meaning of the words is to be regarded , and the sense and meaning appears by the occasion of speaking them : sensus verborum è cause dicendi accipiendus est : and they are not favoured so as to be stretcht , 4 Rep. 18. b . He is a perjured old Knave , and that is to be proved by a Stake parting the Lands of H. M. and Mr. W. adjudged not actionable , because the latter words extenuate the former , and shew that the Party meant not judicial Perjury ; but yet the words perjured old Knave of themselves are actionable , Mich . 9 Car . B. R. Redhead and Smith : Thou art a cheating and Conny-catching Thief , and didst cheat the Company of Watermen at Newcastle of twenty Nobles ; adjudged not actionable , because the word Thief is qualified , and refers only to cheating and cozening , which is not Felony ; and the main of the Charge is Cheating : so here the main Charge is Forswearing , which is not actionable ; and the speaking of the words was occasioned by something that passed at Watermans Hall , where Perjury cannot be committed .

But the Chief Baron said , That here were several and distinct Clauses , and the words perjured Whore are in a distinct Clause by themselves , without reference to , or dependance on the rest ; and Judgment was given for the Plaintiff .

Wake versus Chapman & Ux ' .

AN Action upon the Case was brought for these words spoken of the Plaintiff by the Defendants Wife , viz Thou art a cheating Rogue and a Runnagate Rogue ; and the Plaintiff laid that he was a Merchant of Cales , &c. Vpon not guilty pleaded , the Plaintiff had a Verdict , and Hardres moved in Arrest of Iudgment , that the words are not actionable , tho spoken of a Merchant , without a colloquium of his Trade : As to say of a Mayor that he has cozened all his Bretren , or of an Overseer that he has cozened the Poor of their Bread , or of a Lawyer that he has cozened all his Kindred , adjudged not actionable , 13 Car . B. R. Marches Rep. 135. So to say generally that a Man is a Cozener or a Cheater without a colloquium of his Trade or Profession , is not actionable 15 Car . B. R. Pasch . 7 Car . B. C. Alexton and Moor , Trin . 7 Car . B. R. Gees Case , and Iudgment was hereupon arrested quousque &c.

Joan Crawley versus Henry Fenne Esq ; In Det .

THE Plaintiff declares , That upon the 18th day of August , 1654. at London , in St. Mary le Bow , in the Ward of Cheap , the Defandant by his Writing Obligatory produced in Court , and bearing that date , did acknowledge himself to owe and be indebted unto the Plaintiff in the Sum of 50 l. to be paid to her or her Assigns at her day of Marriage , or on the 1st day day of February , which should first happen ; provided that the Plaintiff do make good , justifie and maintian the truth of the Declaration given to the Defendant , under her Hand and Seal , bearing even date with the said Writing Obligatory , and avers , That although she always hath been , and still is ready to make good , justifie and maintain the truth of the said Declaration , yet the Defendant hath , and still doth deny to pay the said Debt , to her Damage of 20 l. To this Declaration , after Oyer of the Writing Obligatory , the Defendant demurs .

Object . The Declaration is vitious , because it does not express the Contents of the Declaration given under the Plaintiffs Hand and Seal , which ought to be set forth , as in case of an Obligation conditioned to perform Covenants in an Indenture , it must appear what the Covenants were .

Resp . 1. The averment in the Declaration , that she was always ready , &c. needed not to have been expressed at all : The Proviso in the Bill is a Condition subsequent and not precedent ; it is not that which creates the Debt , the Debt arises by the Plaintiffs Marriage , or the coming of the 1st of February which is past ; and being a subsequent Condition , it lies on the Defendants part to alledge a breach of it , for it is for his advantage , 7 Rep. 9. b . Ughtreds Case , Annuity granted for the Exercise of an Office ; the Plaintiff in an Action to recover his Annuity , needeth not aver that he has exercised the Office ; and the difference there taken , is betwixt a Condition precedent and subsequent , 5 H. 7. 1. Annuity granted till the Grantee be advanced to a Benefice ; he needs not shew that he is not advanced : He quoted 21 Ed. 4. 36. b . 9 H. 6. 15 , 16. where a difference is taken betwixt where a Condition is for the advantage of the Obligee and of the Obligor ; he for whose advantage it is , must plead it : here he said the Proviso was for the advantage of the Obligor , for it comes after the solvendum ; and consequently the Plaintiff not obliged to set it forth .

Resp . 2. The Proviso here limits no certain time for the performance , and consequently the Plaintiff has time to perform it as long as she lives , unless hastned by request , 22 Ed. 4. 43. Annuity pro consilio impendendo ; the Defendant must demand Councel , and be denied it , before the Annuity be forfeited ; so here the Defendant ought to require the Plaintiff to make good her Declaration , 6 Rep. 31. in Bothies Case , where the Defendants presence is requisite , there the Plaintiff has time during Life , unless hastned by request ; as in our Case . But if the Mony had been made payable to the Plaintiff when she should have proved , &c. then it would have been necessary for her to have set it forth ; but here she needs not , for the Proviso comes after the solvendum ; wherefore the Proviso here being a Condition subsequent , and the Party having time to perform it during her life , unless hastned by request , which she has not been ; the averment in the Declaration is meerly Nugatory , and the General Demurrer ill ; quaere quid inde venit .

Henry Newman Plaintiff , and Elienor Phillips Defendant .

IN Trespass and Ejectment for several Messuages ; Not guilty was pleaded as to a third part , and for the two other thirds , the Case upon a Special Verdict was thus ; viz. Cuthbert Beeston seized in Fee of the Messuage in question , called the Walnut-tree ( inter alia ) lying in Southwark , in the County of Surry , holden in Capite , devised two parts of the same to George Ward and his Heirs after the death of his Wife , to the intent and purpose , and upon condition that the Devisee , his Executors or Assigns , shall with the Rents and Profits of the Premises , after the death of his Wife , for ten years , pay several charitable Vses expressed in his Will , and died without Issue ; the Wife enters , George Ward the Devisee hath Issue Cuthbert , and dies , his Son being within age ; the Wife dies , and then by a Writ directed to the Escheator of Surry , ( the Mayor of London for the time being , being Escheator in Southwark , by a Patent of 4 Edw . 4. and no other Escheator to meddle there ) dated the 18th of Nov. Anno 45 of Eliz . the said Cuthbert Ward is found to be the Queens Ward , and during the time of this Wardship the said Condition is broken . Agnes Phillips Cozen and Heir of the Devisor enters , and dies without Heir , and so found by special Commission under the Great Seal dated the 2d of June , 18 Jac . directed to Ferrand and others ; and after by another like Commission dated the 9th of January , 19 Jac . which was afterward quashed by Order of this Court . King James died seized , and the same descended to King Charles , who being seized the 5th of June , 2 Car . leased the same under the Great Seal to Arthur Y. for 41 years from Michaelmas before ; the Lessee entred , and by mean Assignments the same comes to the Lessor of the Plaintiff , who entred , and was possessed till ejected by the Defendant .

Hardres pro Quer ' . 1. I conceive this to be a good Condition , in point of creation , by virtute of the words , to the intent and purpose , and upon condition , &c. for eâ intentione , or ad effectum will amount to Conditions in a Will , tho not in a Grant , 10 Rep. Mary Portingtons Case , 42. a. and the Books there cited .

2. An Infant and his Estate may well be subject to a Condition , Vid. 8 Rep. Whittinghams Case , 44. b . There diversities are taken betwixt Conditions in Fait and Conditions in Law ; betwixt Conditions at Common Law and Conditions by Statute Law ; and Conditions at Common Law , which require skill and confidence , and which do not : Infants are bound by all Conditions , whether in Fait or in Law , that require confidence and skill ; as when the Office of Parker or Steward descends to an Infant in Fee ; and the reason of that comes up to our Case .

3. The Heir is comprehended within the word Assigns , with respect to the performance of Conditions and Covenants , Vid. Plow . Com . Chapman and Daltons Case , 288. and 5 Rep. 96 Goodales Case .

4. The question will be next whether or no the King be well entitled to the Wardship , by virtue of an Office found virtute brevis before the Escheator of the County , when the Mayor of the City of London , for the time being , is Escheator there by Patent ? I conceive the Office to be void , and the King not entitled by it ; and that the Escheator acted only colore , but not virtute Officii .

For else there would an uncertainty arise , which might enveigle the Court , as not knowing who to give credit to ; for if another Writ had issued to the Mayor of London , as there ought to have done , and upon that there had been found contrary to what has been found before the Escheator of the County ; this contrariety would be mischievous ; wherefore two separate and distinct Officers are not to be admitted within one and the same Precinct , to avoid contradiction and contrariety in the Execution , Cro . Car . 195. Office of Sheriff granted for Life , and afterwards granted to another , the second Grant is void , and there needs no Scire fac ' , 4 Rep. 46. In 11 Rep. in Auditor Curles Case , it is said the King cannot make two distinct Officers of one and the same Office ; but two Persons may constitute one and the same Officer ; for then one cannot act without the other , 6 H. 7. fol. If the King grant an Office to one , and afterwards grant the same Office to another , the second Grant is void for the reason above mentioned . So here , if there cannot be two Officers within the same place , at the same time , then the execution of the Writ in the Case at Bar by one , who is not an Officer there , was void , & coram non Judice . Vide 10 Rep. the Case of the Marshalsey . And if it be a void Office , then the King is not entitled by it ; for a void Office , and no Office at all , are one and the same ; as in 22 H. 6. 46. b . A void Award , and no Award , are all one ; and an Obligation to perform an Award , cannot be forfeited by not performing a void Award . 5 H. 7. 28. b . Insufficient return of a Sheriff , and no return at all , are all one . 7 Ed. 4. 16. b . 11 H. 8. Keilw . 199. held there , That if an Escheator feize by vertue of an insufficient Office , he is a Trespassor and a Disseisor . 3 and 4 Eliz . Dyer 208. b . If in an Office found upon a diem clausit extremum , the certainty of the place , and the name of the County be not exprest , it is as no Office at all . 7 Ed. 4. 16. b . there it is held that if an Office taken before an Escheator finds a Feoffment to the use of the King , the King is not entitled thereby , because the Feoffment does not appear upon Record , without which the King cannot take .

Object . The Sheriff may execute a Writ within a Franchise , and the Execution shall be good , tho the Lord of the Franchise may have an Action against him for it .

Resp . The Cases are not alike , for the Court does not take notice of Franchises , and the Sheriff is the Officer to the Court , notwithstanding the Franchise ; and the Lord of the Franchise , is but a subordinate Minister to the Sheriff ; but one Escheator is in no such subordination to another Escheator ; but they have severally the same Power within their Precincts .

Therefore if there be no Office in the Case , then there is no Wardship ; for before Office found there can be no Wardship ; for till the Office found , the Freehold and Possession are ject upon the Heir ; Vid . Plow . Com . 229. a. 230. a. Seignior Berkeleys Case .

5. Admit the King well entitled to the Wardship , yet the Estate is liable to the Condition , and the Entry good for the Breach thereof .

1. Because here the King claims under the Title of a Subject , and therefore shall be in no better condition than the Subject under whom he claims , upon this Head , Vid. 49 Ed. 3. 15. Isabel Goodcheaps Case , and 4 Rep. The Case of the Comminalty of Sadlers 55. b . where a diversity is taken betwixt the Kings having an original Estate upon condition , and a derivative one . If it be an original Estate , then the performance of the Condition must appear upon Record , else the King cannot enter ; otherwise when the King claims under another .

2. The Kings Estate here is but a Chattel , viz. An Estate during the minority of the Ward ; and Chattels may be divested out of the King , and vested in him without Office .

20 Ed. 4. 11. If the King be entitled to an Advowson in the Right of his Ward , he may present to the Church without Office . Vid . 6 and 7 Eliz . Dyer 236. a. It was found by Office , that a Morgagee of Lands held in Socage , died seized of them and of Lands held in Capite , his Heir within age ; afterwards the Morgagor performed the Condition , and paid the Mony to the Executors of the Morgagee , and entred ; And the question was , whether or no he should answer the Profits to the King till Livery sued or not ? And adjudged that the Morgagor should receive the Profits presently , and should be put to his monstrance de droit , to get his Lands out of the Kings Hands . 3 and 4 Ph. and Mar. Dyer 138. b . The Dutchess of Suffolks Case ; An Estate was given to the King eâ intentione that he should grant other Lands in lieu of it ; the King granted other Lands in lieu of it to hold of him in Capite , who died , his Heir within Age , and in Ward ; then an Entry was made for a supposed breach of the Condition , and the Entry is there admitted to be lawful if there were a Breach ; but it was doubted whether these words amounted to a Condition . 22 Eliz . Dyer 367. a. The Morgagee of Lands held in Capite , and of other Lands , died , his Heir within Age ; and the King seizes and dies , the Morgagor performs the Condition and enters , and held per opinionem Cur ' Wardorum , that his Entry was lawful , which is a Case express in the Point .

Object . The King is not subject to the Condition , but is entilted to the Profits by reason of the Wardship , which is an ancient Flower of the Crown , nor has he notice .

Resp . As well as the King may be bound by an express Condition , when an Estate is conveyed to him upon Condition , as appears by the Case of the Wardens and Commonalty of Sadlers , Co. 4 Rep. So shall he be bound when he claims under a conditional Estate , as here ; and as appears by Isabel Goodcheaps Case , 49 Ed. 3. afore-cited , & terra transit cum onere ; and tho a distress or the like cannot be made upon Land in the Kings Possession , yet non sequitur , that therefore it cannot be clog'd with a Condition ; and the Kings Title by Wardship comes under the Will , which creates the Condition ; for if there had been no such Will , there would have been no such Wardship , so that the Title to enter for the Condition broken is paramount to the Title by Wardship ; and that there may be an Entry upon the Kings Possession for a Condition broken , appears by the Cases cited already out of Dyer . And for what has been objected concerning Notice , there is no Person here to give notice , for the Devisor is dead , and his Heir is a Stranger to the Tenure and the Wardship and not concerned in it , nor mentioned in the Office whereby the King claims the Wardship .

3. Admit the Party not to be in possession against the King , yet none can take advantage of this but the King himself ; and the King here has not taken advantage , for it is more for his advantage to be out of possession , because then he becomes entitled by Escheat ; and the King shall be accounted in of his best Title . Vid . 14 Ed. 4.5 . b . 5 Ed. 4 4. a. If one Office find the Heir within age , and another find him to be of full age ; that which makes best for the King shall be received .

6. It is made a question , whether or no the King be well entitled to this Escheat by virtute of this Office found before Commissioners ? And I conceive that he is .

But I conceive the King well entitled to the possession , as this Case is , tho there had been no Office at all ; viz. by the death of his Tenant without Heir ; and in 4 Rep. 58. a. 9 H. 7. 2. Plow . Com . 229. b . Lord Berkeleys Case , There is a diversity taken betwixt , when there is a possessio plena , as when the Kings Tenant is disseised , and when the possessio is vacua . In the one Case an Office is necessary , but not in the other .

But admitting that an Office is necessary ; yet I hold that there is in this Case sufficient matter of Record to entitle the King by this Commission , as well as if the Office had been found by Writ .

14 Ed. 4. 6. adjudged , That a Commission to others does as well entitle the King to an Escheat , as a Writ to the Escheator ; and the reason there given is , because as the King is Superior to all Persons in Dignity and Honour , so he is Superior in Law by his Prerogative ; and the Law admits of a favourable construction where-ever the King is concerned ; nor is there any difference betwixt a general and a special Commission ; nor is the King bound to pursue the Method prescribed for Subjects : And a diversity is there taken between the King and a Subject , for a Subject cannot take advantage of an Office , virtute Officii or Commissionis ; but the King can by his Prerogative , wherewith agrées 11 H. 8. Keilw . 198. Besides the King is not held up to Forms , if there be sufficient matter in the Record to entitle him ; and for that Vid. 5 Rep. 56. b . Knights Case , where a Lease was made by the Prior of St. John of Jerusalem , upon condition to pay 5 l. Rent quarterly ; the Priory was dissolved , and the Possessions thereof given to the Crown : then by Office more Rent was found in arrear for one quarter than was due , yet held good , for the Condition was broken if any part of the Rent was in arrear . 12 and 13 Eliz . Dyer 296. b . If an Office do not find the Party Son or Child upon a settlement made by the Ancestor , this may be supplied by a Suggestion made by the Attorny-General , as a supplement to the Office . 1 Ed. 5. 6. b . A suggestion that Land is held of the King , and that the Wardship belongs to him , sufficient upon Information without Office . Vid . 7 Rep. 13. b . Sir Francis Englefields Case . If the King be entitled by Forfeiture to the benefit of a Condition , and give Authority to another by Letters Patents to perform it ; this being certified into the Exchequer , is sufficient to entitle the King .

Here the King has a Title upon Record , and the possessio is vacua , or else the King himself is in Possession ; and so the King sufficiently entitled to this Escheat , and therefore the Lessee of the Assignee of the Kings Patentee , has good cause of Action ; but admitting that the Kings Patentee had no Title , yet his Possession is a good Title against the Defendant , for whom no Title at all is found : So upon the whole matter he prayed Iudgment for the Plaintiff .

Afterwards in Easter Term , Anno 1656. Hide argued pro Defendente . 1. That the Office found by the Escheator of Surry was good , notwithstanding the negative words in the Mayor of Londons Patent . Vid . Dyer 135 , 209. being in the same County . And the Statute of 23 H. 6. inflicts a penalty upon Escheators ; if they do not cause an Office to be found within a month after the Writ comes to their hand . Vid . 9 H. 20. 7 Ed. 4. 17. 4 Rep. 46. Holcrofts Case . 20 H. 7. 7. There is a diversity between general Authorities and particular Iurisdictions ; nor is there any damage to the Party here , but only a breach of the Liberty . 2. Perkins makes a quaere upon the Kings being subject to a Condition ; but admitting that he is , yet notice must be given before there can be an Entry upon him . Dyer 138. Goldsboroughs Rep. 137. The Duke of Norfolks Case , Pasch . 7 Jac . Popham . Rep. 8 Rep. Fraunces Case . 3. The Heir cannot enter after Office found , and the King being in Possession . Dyer 139. 49 Ed. 3. 16. 2 Rep. 4 Rep. 4. A Title of Entry cannot Escheat , for where there is an Escheat , the Kings Tenant must die in his Homage , and so the Writ of Escheat runs ; there must be a Tenure betwixt the King and him , which is not here . 7 H. 5. 8. 15 Ed. 4. 11. 7 H. 4. 47. Bro . Tit Entry Cong . 36. Obj. The Iury has found it . Resp . Matter of Law cannot be found by the Iury , so as to bind the Court . Plow . Com . 114. b . 231. b . 27 H. 8. 8. 5 Ed. 4. 7. So he concluded pro Defendente .

Vid . Cr. Jac . p. Where it is adjudged , That during the Kings Possession , the King being entitled to the Profits by a Title of Wardship , which is paramount ; no breach of a Condition by the Tenant shall forfeit the Estate .