at bar, after the said John Draicot was a popish recusant convict, during the time that he remains a recusant, he now shall be disabled to grant any next avoidance, by the retrospect of the act after the beginning of the said session of Parliament, and the makers of the act intended to inflict greater disability upon them who became popish recusants, after the damnable and damned powder treason, than before. (a) Cro. Eliz. 292.816.1 Lev. Moor 194. Cro. 112.2 Jones 92. 2. Frand shall never be premust be expressly aver sumed; it red. V. Littleton. s.C. [1Brownl. 36. 2 Brownl. 187 If the jury in a special verdict find cir As to the second, it was resolved, that (a) covin shall never be intended or presumed in law, if it be not expressly averred (D), quia odiosa & inhonesta non sunt in lege præsumenda, & in facto quod se habet ad bonum & malum, magis de bono quam de malo præsumendum est, and so it was adjudged in the case of (b) Meriel Littleton, Trin 10 Jac. in this court, where the case was; that Elizabeth Tirer, executrix of the will of Thomas Tirer, Tirer brought an action of trespass vi et armis against Meriel Littleton and John Daunser, of an ox, price 6l. at Hagley in the county of Worcester, 20 Octob. 7 Jac. &c. The defendants pleaded not guilty; and the jurors found a special verdict, that one Thomas Tirer was seised in fee of eighty acres of land in Hagley, and held them of John Littleton, Esq. ut de manerio suo de Hagley in the said county by fealty, and the rent of Ss. Id. ob. sect' cur', et reddend' optimum animal cujuslibet tenentis in feodo simplici post mortem ejusdem tenentis pro heriotto, of which manor the said Meriel Littleton was tenant for life at the time of the death of the said Thomas Tirer, and the said Thomas Tirer being so seised 16 die Augusti, anno 42 Eliz. by his deed in consideration of fatherly affection to John his son and heir apparent, and in consideration of a marriage to be had and solemnized betwixt the said John Tirer and one Joyce Grove, and for the advancement of the said John did enfeoff the said John Tirer of the said 80 acres of land, to have and to hold to him and his heirs, for the use of him and his heirs; by force where- [ 56 b. ] of the said John was thereof seised in his demesne as of fee, and so seised the said 16 day of August an. 42 ejusdem nup' Reg. by his deed indented, to the intent that the said Joyce should not be endowed during the life of the said Thomas, redemised the said 80 acres of land to the said Thomas for 40 years, if the said Thomas should so long live: and that the first day of September following, the marriage betwixt the said John money of the crown received, falls within the act 13 Eliz. c. 4. but it was expressly decided in Rex v. Smith, 1 Wight. 34. that in the case of a purchase for a valuable consideration without notice and without fraud or covin from a simple contract debtor of the king, the lands are not bound by such simple contract debt. And in Casberd v. Ward, 6 Price, 411. it was held that a deposit of title deeds by a simple contract debtor of the crown, for securing part of the purchase money to be paid in consideration of other lands sold to him, is an equitable mortgage, and binds the crown, and that although the purchaser had also given his bond to the vendor for the whole amount. Vid. Sugden's Vendors and Purch. p. 430. 6th cumstances and presumptions of fraud, but do not find will not draw the conclusion for them. fraud,the court Edn. and Rer v. Lambe, 1 Mc. Clel. 402. (D) Acc. Rex v. Fillongley, 2 T. R. 709.Rex v. Llanbedergoch, 7 T. R. 105. Vid. Vin. Ab. Fraud L. a. pl. 3. Also, it is a general rule of law, that every thing is presumed to have been legally done till the contrary is proved. Bennett v. Clough, 1 Barn. and Ald. 463. So also the law always presumes against the commission of a crime. Rex v. Twyning, 2 Barn. & Ald. 386. So where any act is required to be done by a person, the omission of which would make him guilty of a criminal neglect of duty, the law presumes the affirmative, and throws the burthen of proving the negative on the party who insists on it. Williams v. The East India Company, 3 East, 192. (a) 13 Eliz. c. 5. Co. Lit. 3. b. 3 Co. 80. b. 5 Co. 60.a.6 Co. 18. b. Cr. Jac. 270, 271. Yelv. 196, 197. 1 Brownl. 111, 112. Cr. Eliz. Dy. 295. pl. 17. 251. pl. 23. 1 Leon. 47.308. 2 Leon. 8. 223. Rast. Fraud. Ent. 207. b. Moor 638. Doct. Plac. 200. Latch. 222. (b) O. Bend. 68. b. Fitzgib. and Joyce was solemnized; and after the said feoffment the said John Tirer, did suit at the court of the said John Littleton, lord of the said manor; and that after the feoffment, Thomas paid the rent for the said 80 acres of land; and afterwards Thomas Tirer, 30 Junii 7 Jac. died, being possessed of the said ox, which was the best beast which he had, and that the defendants took the ox pro heriotto post mortem præd' T. Tirer, as due for the said tenements, and the jury further found the statute of (a) 13 Eliz. for avoiding and abolishing of feigned, covenous, and fraudulent feoffments, gifts, &c. as well of lands and tenements, as of goods and chattels; which feoffments, gifts, &c. are devised 254.615. 810. and contrived of malice, fraud, &c. to the intent to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, &c. heriots, mortuaries, and reliefs, &c. and therefore it is enacted by the said act, that all feoffments, gifts, &c. of lands, tenements, and hereditaments, goods, and chattels, &c. to be made to any intent or purpose before declared and expressed, shall be adjudged and taken (as against the creditor or other person so defrauded and grieved) to be clearly and utterly void and of none effect, &c. (F). And if upon the whole matter the said Meriel and John Daunser are guilty, then they find them guilty, and assess damages to 5l. and costs 6d. &c. And this 48.1 Roll. 523. Case was argued at the bar; and Trin. 10 Jac. it was argued at the bench, and it was unanimously resolved, that forasmuch as no (b) fraud is found by the jury, the court would not adjudge the said feoffment to be fraudulent; and although the jury have found circumstances and presumptions to incite the jury to find (c) Cr. El. 97. fraud, yet it is but evidence to the jury, and not any matter upon which the court could adjudge fraud; and the office of jurors is to adjudge upon their evidence concerning matter of fact, 152. 1 Roll. 5. and thereupon to give their verdict, and not to leave matter of evidence to the court to adjudge, which does not belong to them. And therefore the Chief Justice held, that if A. brings an action on the case against B. upon trover (c) and conversion of plate, jewels, &c. and the defendant pleads not guilty, now it is good 2 Bulstr. 308. evidence prima facie to prove a conversion, that the plaintiff requested the defendant to deliver them, and he refused, and therefore it shall be presumed that he has converted them to his [* 57 a. ] use. But yet it is but evidence; and if it be found by special verdict (d) in such case, that the plaintiff requested them of the defendant, and he refused, it is not a matter upon which the court can judge any conversion: for the conversion ought to alter the action of detinue to a trespass upon the case, which a denial cannot do in law; for in every action of detinue there is alledged in the declaration a request and refusal, yet it is good evidence, as has been said, and so has always been allowed to prove a conversion, that the plaintiff demanded the goods, and Cr. Eliz. 292. Rep. 17. 38. 495. Cr. Jac. 245. Cr. Car. 262. Goldsb. Moor 460. 1 Vent. 401. Hob. 187. 1 Sid. 127. 1 Roll. Rep. 59, 60. Hutt. 10. 310. (d) Hardres 48. + See 6 Mod. 212.11 Co. 79. 5 Co. 27. 61. 110. 2 Co. 25. 3 Salk. 365. in a special verdict, the court cannot adjudge it a conversion. (E) According to the case of Creswell v. Cokes, Dyer, 351 b. S. C. 2 Leon, 8. if tenant by heriot custom holding of several lords, makes a fraudulent gift of his heriotable beasts, each of the lords may have a separate action qui tam on the stat. 13 Eliz. c. 5. But vid. the observations of Mr. Watkins on this case. Treatise on Copyholds, vol. 2. p. 170. (a) Cawl. 231. Where a feoff- the defendant refused to deliver them (r). 2. The statute says, to defraud creditors and others of their just debts, heriots, &c. and the jury have not found, that the said feoffiment was made to defraud the lord of his heriot, and so they have not found the case within the statute. 3. If the son had died in the life of the father, the lord should have a heriot after his death. 4. It is found, that the intent of the feoffinent and re-demise for years made before the marriage, was to the intent that the said Joyce should not be endowed during the father's life, but that after his death she should be endowed, although the son had died in the life of the father: which feoffment being found by the jury to be made in consideration of marriage, and to this particular intent concerning the dower of the son's wife, shall not be by construction of law extended to any other intent. And thereupon the Chief Justice put the case in Mich. (a) 9 & 10 El. the King's tenant in capite, his son and heir apparent of seven years, is indebted to divers, and is sued for his debts in divers courts, and fearing the hindrance and impoverishment of himself, his wife and children, by extent of his lands, &c. for execution of the said debts enfeoffs divers persons, sub conditione that when he or his heirs shall pay to the feoffees 301. that then they shall make such feoffments, and to such uses as he or his heirs shall limit or appoint, or otherwise the feoffment shall be void, &c. and this feoffment and intent is found by Mandamus returned in the Chancery, et quod nulla alia causa, intentio aut collusio, viz. ad defraudand' reg', &c. de custod' hered' vel terrar': and although this feoffment was found to be made by fraud and covin (which is always unlawful) yet forasmuch as the fraud was to one particular intent, sc. to defraud creditors, it shall not be extended to any other fraud, sc. to defraud the King of his ward, although in truth and by the event, by this feoffment the King was defrauded of the wardship of the body and land, and so was it resolved and decreed in the Court of Wards; a fortiori when it is found that this feoffment in the case of Meriel Littleton was in consideration of marriage, and of advancement of his son, and that the son's wife should be endowed against the one, and [ 57 b.] not against the other, all which are lawful considerations, the (F) An unqualified refusal after demand is almost always conclusive evidence of a conversion; but if there be a qualification annexed to it, and such qualification is a reasonable one, the refusal will not amount to evidence of a conversion. Alexander v. Southey, 5 Barn. & Ald. 250. Therefore if A. into whose possession goods happen to come, being ignorant that B. is the real owner, refuses to deliver them to B. until he proves that he is the real owner, such qualified refusal is not evidence of a conversion. Per Coke, C.J. Isaac v. Clarke, 2 Bulstr. 312. Solomon v. Dawes, 1 Esp. 83. Green v. Dunn, 3 Camp. 215. So where a deed was demanded of the defendant, who said he would not deliver it up, but that it was then in the hands of his attorney, who had a lien upon it, this was held no evidence of a conversion. Smith v. Young, 1 Camp. 439. not be said to other frand, although such other fraud is effected by it. So the refusal of a servant to deliver up goods 5 Barn. & Ald. 247. And a demand and re- 3. Misnomer of a corporation in an act of tention ap avoid them. (a) Hob. 32. Plowd. 345. a. 523. b. Br. Corpor. 77. Perk. sect. 509. court shall not extend it to an unlawful intent, nor adjudge upon the whole matter found in that case, that the feoffment was made to any other intent than is found by the jury. As to the third objection in the case at bar, it was resolved and answered three ways. 1. An act of Parliament, misnomer parliament, or of a corporation (G), when the express intention appears, shall in a will, when not avoid the act no more than in a will, for Parliament', testathe express in- ment', et arbitramentum, are to be taken according to the minds pears, shall not and intentions of those who are parties to them. And therefore when the description of a corporation in an act of parliament or in a will is such, that the true corporation intended is apparent, and it is impossible to be intended of any other corporation although the right name of the corporation (which is requisite to be expressed in grants and deeds) is not precisely followed, yet the act of Parliament and will shall take effect. And therefore in (a) 21 R. 2. Devise 27. where one devised certain tenements in London for life, the remainder over ecclesiæ Sancti Andreæ de Holb' it is adjudged there, that this devise is good to the corporation of the Parson of the church of St. Andrew in Holborn, and his successors; for such description was sufficient in a will to express the Parson of the church and his successors: pari ratione, if a devise be made to the university of Oxford, or to the city of London, or to (b) Trinity College in Cambridge, &c. such a devise is good, and therein the true name of the corporation shall be implied; for by these descriptions the meaning of the devisor is apparent that the incorporate body of every of them shall take. So here, when the Parliament gives the benefice to the Chancellor and Scholars of Oxford and their successors, this description is sufficient to express the meaning of the makers of the act, that the corporation of the university of Oxford which has a Chancellor and Scholars, shall take it, and no other corporation can take it. 2. The record is well, for the act is pleaded as if the benefice had been given by the said act expressly (as it is implied in law) to the Chancellor, Masters, and Scholars; and the defendant has demurred in law thereupon, and so confessed it (H). 3. This clause which gives this benefice to the university (c) 2 Roll. 466. of Oxford is a (c) private clause, whereof the Judges without pleading of it cannot take notice, and therefore now the Judges ought to take it as it is pleaded. (b) Hob. 32. 4 Co. 12. b. Plowd. 65. a. 4. If the plain- quare impedit had omitted to aver that A. at the time of As to the 4th objection, inspecto recordo, it appears that the plaintiffs have averred this sufficiently, for after that they have alledged, that the said J. Draicot, the son, was papalis recusans convictus, they have said, ac præd J. Draicot de manerio præd cum pertin' ad quod, &c. in formá præd' seisiť existen' et papalis recusans convict' in formâ prædict' existens et remanens et ecclesiæ prædict' vacavit per mortem prædict' G. Eyre. But if the plaintiffs had not averred it, the court was of opinion that the declaration [* 58 a. ] had not been sufficient, because they had not enabled themselves to take benefit of the said act; and they need not aver, the plaintiffs need not aver that he yet continues and remains a recusant, for the presentation being vested in the University, subsequent conformity shall not divest it. the avoidance was a recusant convict, the declaration would have been bad, but (G) Vid. note (B), Mayor of Lynne's case, by the plaintiffs to the plea of one of the depost. fol. 124 a. (H) This is incorrect. The demurrer was fendants. that he yet continues and (a) remains a recusant, for when once the presentation hac vice was vested in the university, although afterwards the recusant conforms himself, or dies, yet the university shall present. (a) Hob. 126, 127. 1 Jones 18. Doct. placit. 333. THE BISHOP OF SALISBURY'S CASE. Trin. 11 Jac. 1. ANOTHER GREEN. v. Part X.-58 b. In a writ of second deliverance, the defendant avowed and pleaded a grant by STANTON AND J., Bishop of S., to G. and himself for their lives of the office of surveyor of his manors with a rent-charge of 20 nobles issuing out of, &c. with clause of distress, which grant was confirmed by the Dean and Chapter; and that the office was an ancient office used to be granted, &c. to such person or persons as the Bishop should please. The plaintiff pleaded in bar the stat. 1 Eliz. and that the said office, &c. used not to be granted but for the life of one, and therefore the grant of the said J., late Bishop of S., was void, and concluded with hoc paratus est verificare. Upon demurrer to the plea the plaintiff had judgment: and resolved, It appears sufficiently in the plea in bar, that J. is not now Bishop of S. The averment in the avowry that the office is an ancient office, is too general and uncertain. The grant of the said office for two lives is void against the successor by the act 1 Eliz. At common law Bishops with the consent of the Chapter, might by their The stat. 32 H. 8. has enlarged the power of the Bishop, for by this act he successor. The grant with the ancient fee of an ancient and necessary office is exempted out of the general restraint of 1 Eliz. But where such office has been granted to one, a grant to two is not out of the general restraint. The grant of any ancient office to one with the ancient fee by a Bishop, shall not bind the successor unless confirmed by the Dean and Chapter, for such grants remain at the common law. The grant of the said office by J. to two, is void upon the death or removal of the said J. In a writ of Second Deliverance brought by Simon Stanton and Palmer 483. Henry Knap against John Green, of the taking of 127 sheep at 1 Jones 264. |