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![handle is hein.slavery/ssactsengr0973 and id is 1 raw text is: TERM. TRIN. 6 WILL. AND MAR. R. B.
the difference taken where it is coram non Judice, and where not: Holt Chief Justice
cited the case of Terry and Hartington in Scaccario; and said that if a justice of the
peace adjudge that to be an offence, which is no offence, the inferior officer shall
answer ; as if one be adjudged the putative father of a bastard, where after it appears
to be born in matrimony; this is void, & coram non judice, &c. Curia advisare vult;
puis.
[446] 4. THE KING AND KEMP; Puis.
A scire facias was brought to reverse a patent, in which the case was; King
Charles the Second, anno 12, of his reign, grants the office of searcher to Martin,
durante beneplacito ; and after in the 6th year of his reign, reciting the said grant to
Martin, grants the said office to Fryer, habend. after the death surrender or forfeiture
of the patent to M. to Fryer for his life; and after in the 26th year of his reign, by
another patent, reciting the two former patents to Martin and Fryer, he grants the
office to William Kemp for life, habend. after the determination of the patent to
Martin and Fryer by death, &c. and further in the same patent, grants it to Henry
Kemp, ut supra; Martin, Fryer, and William Kemp are dead, and a scire facias is
brought to repeal the patent to Henry; and it was objected by Pemberton, first, that
the patent was void in its creation, for Martin having but an estate durante bene-
placito, when the King makes a grant to Fryer, this is a determination of his will ;
and it being so, his grant to Fryer was void, for the King was deceived in his grant,
for he intended to grant it in reversion; but the patent of Martin being determined
by the grant to Fryer, and his grant being to commence upon the determination of
the patent to Martin; this ought to commence immediately, and so it is a grant in
possession; and it being a grant in possession, where the King intended only to make
a grant in reversion, the King is deceived to his prejudice, and therefore the patent
to Fryer is void; and if it be void to Fryer, by the same reason the patent to Kemp
would be void also: he said likewise that the patent is void for another reason,
because here is an estate of franktenement to commence in futuro, for the life of the
rantee; the which cannot be by the rules of law; for an estate granted to a man for
is life, is to be understood all his life, and shall not be for part of his life, for the
law will not permit a fraction of an estate for life ; he admitted that the King may
make a reversionary grant, yet he insisted ut supra.
[447] Northey econtra. The grant to Fryer is no determination of the will of the
King, when the King has particularly taken care, that this shall not be a determina-
tion ; and he took a difference mentioned in Chandos's case, 6 Rep. where the misprision
is for the benefit of the King, and where to his prejudice, as it is said supra; and as
to the grant he said that it is good, for in such case as here, it is but in the nature of
an appointment to commence in futuro, and no estate passes in presenti, as it would,
where it is an office of inheritance; and therefore all those grants operate in the
nature of grants in futuro, and not of present grants ; and though a franktenement
passes, yet in the case of the King, and also of the subject, (as in the cases of grants
by bishops) these grants have been allowed to be good ; and he prayed judgment for
the defendant. Curia advisare vult, &c. Dyer 94, is the case in point, but not cited.
6 H. 7, 14. Com. 499, 500, puis.
5. PHILIPS AND BURY.
An ejeetment was brought against the defendant by one Robert Philips, who
declares upon the demise of William Painter, rector of Exeter College, and the
scholars of the same college, of a certain messuage, called the Rectory-House, situate
within the parish of St. Michael, within the City of Oxford, to hold from Michaelmas,
which was in the second year of their present Majesties, until the end and expiration
of five years, then next following; that he entred into the premisses, and was possessed
till the defendant ejected him ; to this the defendant pleads that the said messuage
at the time of the action brought, and long before was the freehold and soil of the
rqctor and scholars of Exeter College mentioned in the declaration; and that the said
defendant long before, and at the time of the supposed ejeetment was, and yet is
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