the case of sutton hospital in the king bench between Simon Baxter plaintiff  and Richard Sutton and John law defendant in a action for trespass de eastern  quoth Self may James a capital message call the charter house in the parish of  saint sepulchre in the county of Middlesex freger intraver upon not guilty  plead the whole special matter be find which you may see at length mich James  rot in the king bench and the same be adjourn out of the court of the king  bench by the judge of the same court into the exchequer Chamber and be there  argue at the bar by John Walter of the Inner temple Yelverton of grey inn and  by Bacon solicitor general for the plaintiff and for the defendant by Coventry  of the Inner temple Hutton sergeant at law and by Hobart attorney general and  the plaintiff counsel argue very strong in general that there be not any  incorporation create by the king letter patent date June James king admit the  incorporation be good yet there be not any foundation make by Sutton accord to  the authority give to he that the bargain and sale make by Sutton bear date  Nov James be utter void and by consequence all the say possession descendible  to the plaintiff and in the argument of this case these point upon these  ground be move objection postea b it be object that by the Act of parliament  Feb James Reg mention in the record a hospital be legal erect and incorporate  at hallingbury in the county of Essex and all the say manor give to it and by  consequence the say corporation make after the say Act by the letter patent  June James Reg be utter void note reader the say Act can give the say house  call the charter house for Sutton purchase it afterward videlicet may James  Reg as appear by the record objection postea b it be object that no hospital  be find by Sutton and therefore the incorporation fail because that Sutton  have the king licence to find erect and establish a hospital which be a act  precedent to be perform by Sutton before the incorporation which he have not  do and so he have not pursue his licence which licence the king may have  countermand and which be countermand in law by the death of Sutton objection  postea b that the king by his charter can name the house and inheritance of  Sutton to be a hospital for that would-be to give a name to a hospital in  another solon objection postea a the place of every corporation ought to be  certain for without a certain place there can be any incorporation but here  the licence to Sutton be to find a hospital at or in the charter house so that  he may find it in all or any part of the same house and therefore till Sutton  have find it certain there be not any certainty of the place and by  consequence no corporation to which be add that a place by a know name be not  sufficient to support the name of a incorporation but the same ought to be  describe by meet and bind and diverse precedent be cite and show where the  scite of hospital priory c be so particular describe objection postea b the  king by his letter patent have intend to make a present incorporation and so  his word express import from henceforth c and yet no incorporation can be till  Sutton have nam a master and the letter patent bear date June James Reg and  the write of nomination october year  and so the letter patent be repugnant in  themselves and void objection postea a until there be a actual hospital and  poor in it there can be governor of they for governor ought not to be idle or  as cipher in Algorisme for governor and government be having reference who are  simul tempore and as well in his will as in other instrument he have call it  many time his intend hospital objection postea a to every corporation a  foundation be requisite and here be not any foundation make by Sutton for  first he ought to have per word precept in boundary to set bounds find erect  and establish the say house of charter house a hospital c and the same be  liken to case of exchange frankalmoigne Dedi warrantizo which be frank  marriage who are word of incompatibilia c and diverse precedent be show to the  justice of building of hospital school c wherein the say word of farm  to raise up c be use second before such lawful foundation make by Sutton a  stranger can not have give any land or other thing to the governor three  without such foundation in time to come it shall not be know who shall be the  founder whereupon confusion will follow objection postea a the nomination of  the master make by Sutton be void for two reason one that he be nam to master  but at will where he ought to be nam for life in as much as he be to have a  free hold in the land also there ought to be at least a actual hospital find  by Sutton accord to his licence before he can nominate a master of it for  otherwise it shall be a mathematical or utopical hospital objection postea a  the say bargain and sale make by Sutton to the governor be void for three  cause that the money which be the consideration thereof be pay by the private  person of the governor and therefore the bargain and sale of the manor c can  enure to they in their politic capacity the habendum be to the governor upon  trust and confidence and a body politic aggregate of many can stand seize in  trust and confidence to the use of another because no hospital be find by  Sutton accord to his licence and for all the other objection make against the  foundation and incorporation the say bargain and sale be void and by  consequence all the say manor descend to the plaintiff as cousin and heir to  Sutton objection postea a that no hospital be incorporate by the say letter  patent and therefore it be object that the king can incorporate they by the  name of governor c of the hospital but of a hospital in law or a legal  hospital as it be call for the governor can plead that they be seize in jure  hospital Himself because in law there be not any hospital which brief report I  have make of these objection because I think they or the great part of they be  not worthy to be move at the bar nor remember at the bench and that this case  be by the justice adjourn into the exchequer Chamber more for the weight of  the valve than for the difficulty of the law in the case and the entire record  as appear by the exception ought to be the case which be open argue in the  exchequer Chamber by all the judge of England and baron of the exchequer  except the chief justice of the king bench who be then sick the judge who  argue in the case sir Robert Houghton sir Augustine Nicholls sir John  dodderidge sir Humphrey winch sir Edward Bromly sir John croak sir James  Altham sir George snigge sir Peter Warburton sir Laurence Tanfield chief baron  and sir Edward coke chief justice of the common plea and it be resolve by they  in their argument except by baron snigge and justice croak that judgement  shall be give against the plaintiff et because rectum be judge Himself athwart  maxim a right linemakes discovery not only of that which be right but of that  which be wrong and crooked and the confirmation of the right and truth be the  confutation of error and falsehood I will report the effect of the reason and  cause which affirm and confirm the resolution of the judge which be of so  great authority perspicuity and gravity that the objection needs not have any  particular answer and yet for the satisfaction of all man every one of they  shall be particular answer and because that this case do chief depend upon the  letter patent and the best exposition of the king charter be upon the  consideration of the whole charter to expound the charter by the charter  itself word papyrus  palace equally portant to sew exhibition  and the king  letter patent in this case be viscera cause viscera cause exhibition  who ex  soft fleshy body parts  cause about to be born into being be to reach strong  in lege all the part of the letter patent be consider and every material part  thereof explain accord to the true natural sense which be the best method upon  the consideration of many other for the more clear report of this case part of  the king charter once to Obj ante a the first part of the say charter  videlicet do contain a short recital of two thing of the title of the Act of  Feb year  videlicet a Act to confirm and enable the erection and establishment  of a hospital and free grammar school give and intend to be give by Thomas  Sutton esquire which title prove that no hospital be find by the Act itself  but the scope of the Act be to enable Sutton to erect and establish a hospital  c and therefore the title say intend to be give and perform by Thomas Sutton  esquire and also the same appear by diverse part of the body of the Act which  be all in going to be nothing in present time be it enact that in the town of  Halingbury c there may be build one meet house for abide of poor people and  scholar c which be word de going to be and it be not certain in what part of  the town the house shall be build and that the same shall and may be call and  nam the hospital of king James which be word also de going to be and that the  lord arch bishop of Canterbury c shall and may be governor c and that the same  governor c shall for ever hereafter stand and be incorporate which word ought  to be intend to take effect after the erection of the hospital c in a certain  place c and so the construction be in going to be which well appear with the  future word follow and may have perpetual succession and may for ever  hereafter have hold and enjoy lordship manor c without licence of alienation  or licence of mortmain by which it appear that this clause be not in effect  but a licence to give manor land c hold in capite without other licence of  alienation and also without other licence of mortmain but this clause be  superfluous and impertinent if the land shall pass by the Act itself for then  no licence in those case be requisite and without question if it be admit that  there be a corporation yet no land be give to they by those word de  going to be also although the say land be give they yet the king by his letter  patent can create and incorporate a hospital in the charter house which be  purchase after the Act and the action of trespass in the case at bar be for  trespass do in the charter house but it be answer by all the justice and baron  of the exchequer except justice croak that the Act of James do not incorporate  the governor c but in going to be which never take nor can now take effect and  by consequence no land be or can be give to it the d branch of the recital be  of the purchase of the charter house after the Act which as it be there  rehearesed be more fit and commodious than hallingbury to be convert into a  hospital the second branch of the charter in the second part Sutton be a  suitor and petitioner to the king for four thing to give licence to find erect  and establish a hospital house c and free grammar school c at or in the  charter house wherein have be observe the incertainty of the suit at or in the  charter house or but of that after incorporate the governor hereafter nam so  that Sutton himself do name the governor which the king do incorporate by such  name of incorporation as be hereafter mention to have capacity and ability c  by which also it appear that Sutton do devise and prescribe the name of the  incorporation and by all these three clause it appear that the suit of Sutton  and his express consent be that the governor shall be nam of the say house  call the charter house Sutton be suitor that the governor c may take in  mortmain for the better maintenance of the say hospital free school preacher c  the d part of the charter the three part of the letter patent contain grant  and act make by the king in two manner know by way of licence and by way of  grant of the licence some be requisite the division of the charter some  abundant and not requisite and some requisite for the sustentation of the poor  c and not to the essence of the corporation and of the grant some be in  present time and some in going to be and of each of they some be of necessity  and some explanatory and not of necessity and those which be of necessity some  be of necessity to the creation of this body politic and some to the  continuance and preservation of it and into those branch the whole letter  patent be divide which shall be observe as they arise and have place in the  same letter patent but before all the licence and grant the king do prefix a  preamble know the king affect so good a work of his princely  dispositionandcareforthefurtherance thereof and that the same may take the  better effect c wherein appear the honour charity and pious disposition of the  king give licence to Thomas Sutton his heir executor administrator and assign  at all time hereafter at their will and pleasure to place erect find and  establish at or in the say house call the charter house one hospital house and  place of abide for the find sustentation and relief of poor age maim needy or  impotent people c also to erect find c one free school for the instruction  teach and maintenance of poor child or scholar c and to place and maintain a  learned school master and usher to teach and instruct the say child in grammar  and also one godly and learned preacher to preach and teach the word of God to  all the say person poor people and child member and officer at or in the say  house that in the first place do contain the end of sutton piety and charity  answer to d objection before for sapiens incipit a fine quoth at first be in  intention ultimum be in execution and that be a grand motive to the king of  his royal authority to give he mean know by creation of a capable body politic  by way of incorporation to have perpetual succession to perfect and perpetuate  so pious and charitable a work and that the incorporation ought to precede the  execution of this licence be evident by the word and coherence of the letter  patent know for this licence be in going to be know to Thomas Sutton his heir  executor administrator and assign at all time hereafter at their will and  pleasure c so that it be future as well in person heir executor c as in the  thing to be do but when he come to the clause of incorporation he do it per  word de present time tempore and the say person and their successor by the  name c we do by these present for ever hereafter real and full incorporate c  by which it follow that the incorporation be present and the execution of this  part of the licence future the incorporation ought of necessity precede the  execution of the licence then forasmuch as the principal foundation of the  scruple be conceive upon these word to find erect and establish the true  etymology and genuine sense of they be consider and ex way termini to pour  nothing other be how fundamentum to be thrown or cast seu to put down c to lie  the foundation of a building and in this sense the holy ghost which move  Sutton to this work of piety in the scripture take it and therefore in the  king Chap verse to lay the bottom be house year  primo et year  to achieve  to be house in all need his and king Chap verse edificavit in a day  strike against hiel de Bethel Jerico in abiram that blossom first his  fun-davit in Segub rear  his to put down portas by which it appear that to  find be to lie the foundation of a building which be the first mechanical part  of architecture then when the foundation be lie then come the erection of the  house as it be say by the son of sirach to raise up we mouse to raise up house  our men  and although that the foundation be well lie and thereupon a building  well erect yet it ought to be well join and establish and therefore this word  establish be add to make the building to have continuance king to make firm  Lamentations  he that be I will make his throne to have perdurance and  continuance so that to find erect and establish be need preoccupation  preoccupation architector and that appear by the word of the charter itself  the king affect so good a work tam good opus also the subsequent word prove it  also to find erect and establish what a hospital house so that it clear appear  that the effect of this licence be to make fit and to finish and furnish a  hospital house for the habitation of the poor c see after mich and Elizabeth  the case of the hospital of Bridewell for the exposition of these word farm  to raise up to make firm which be a strong case than this be and this word  place in the first place be to be intend as have be say in the last place sure  to place poor in it to erect a free school for the instruction of youth and  for the maintenance of a preacher but how shall this holy and charitable  intention that the same may remain for ever be produce to a end and effect the  charter itself shewth it in effect in this manner it be impossible to take in  succession for ever without a capacity and a capacity to take in succession  can be without incorporation and the incorporation can be create without the  king for this cause the charter say and for the maintenance and continuance of  the say hospital c and that the same may take the better effect that the say  person c be one body corporate and politic to have perpetual succession to  endure for ever we do by these present for ever hereafter full and real  incorporate c to have capacity and ability to take c without this capacity the  end can take effect for inhabitant of a town or other single person who have  not capacity to take in succession but only to their singular heir have  capacity to take a incorporation and after their incorporation they have  capacity to take in succession any land tenement or hereditament unde sequitur  that the incorporation which give capacity ought to precede the give of any  land c another licence be give to this new incorporation to take in mortmain  this licence be not of necessity either of the essence of the incorporation or  of the continuance of it but yet it be requisite for the establish and  maintenance of the end sure to have the poor sustain and scholar instruct c  for they can be maintain without a revenue and they can take or keep the  revenue as have be say without a licence in mortmain and therefore these two  sure incorporation and licence in mortmain ought to precede the donation for  word to find erect and establish a hospital house can be extend to the  incorporation for that belong only to the king and that the king do nor to any  dotation for as yet as have be say there be not any capacity ergo it extend  only to the building and finish of the say house to be a fit habitation for  poor c Sutton think and rethinking that as well the incorporation as the  licence in mortmain be in their several degree requisite to bring his good and  charitable purpose to effect to the end the king shall grant that which be  only in his power to grant and which he himself without the king can not do he  be a suitor to the king to grant he licence to do that which of himself in  respect of the ownership of land he may do without the king sure to build  finish and furnish the say house for the habitation of poor as well before the  incorporation as after but to give it possession c as have be say he can not  and therefore this licence be but explanatory to declare what Sutton as owner  of the land may do either with the king licence or without the king and  therefore the king can countermand this licence because it be but declaratory  of that which Sutton may do as owner of the land without any licence and this  appear by the book in h Fitzherbert grant the record whereof I have see  between John Buckland term vintner plaintiff in a action of trespass and  Richard Fowcher chaplain defendant sanct mich Henry rot in the king bench and  in the report at large Termain senth Henry a b where the case in effect be  that king Henry the four by his letter patent year  royal power Himself recite  that Robert Ramsey be seize in fee of a house in the parish of saint Margaret  in London call the sun c notwithstanding the statute of mortmain of his  especial grace and for l give licence to Robert Ramsey that he may give mark  rend go out of the say house cuid chaplain of a god celebrant and altar  happiness Mar in eccles S great London one a day pro health position preaed  Rob johan wife of oneself c Habend tenend eid chaplain successorib n'est  chaplain Cantariae pillage of a god in eccles pillage and altar pillage pro  health position c juxta in ranks pillage rob in here part faciend celebrate  imperpet c and afterward the say Robert Ramsey by his deed indent June find  ordain and erect the say chantry and ordain and nam one John meadow to be the  first chaplain to do the say divine service and further by the say deed grant  to the say John meadow the first chaplain mark of yearly rend issue out of the  say house to have to he and his successor chaplain of the say chantry at four  usual feast in London to be pay with clause of distress to he and his  successor and further appoint by the same deed that he himself shall present  to the say chantry during his life and after his decease that Johanna his wife  shall present to the same during her life and after her decease that the  parson and church warden of the say church of saint magnus and their successor  and afterward the say John meadow die and after diverse vacation the say  Richard Fowcher be present to the say chantry and for the say rend behind he  enter into the say house the door be open and take a cup of the plaintiff for  a distress c for which take the action be bring upon which matter the party  have demurrer in law and this case be adjourn into the exchequer Chamber and  there before all the judge of England diverse objection be make against this  Licenceand grant that they be a certain chaplain and nam none in certain and  when the king grant be uncertain it be void as if the king licence one to give  mark rend cuid abbey the grant be void because it be incertain there be not  such chaplain till Robert Ramsey have nam and ordain one so that it appear  that the grant shall be to such a one who be not in rer nature as if the king  give licence to grant to the mayor and commonalty of Islington although the  inhabitant of Islington be afterward incorporate by the name of mayor and  commonalty the grant be void because there be no such corporation at the time  of the grant it be object that in this case the king have not make any  incorporation and incorporation be a thing to be do only by the king himself  and these word juxta ordination per Rob Ramsey fiend shall not enable the say  Ramsey to make a incorporation for the king can give licence to any to make a  incorporation but the say word shall give he power to make ordinance first  touch mass and other divine service of what manner of habit he shall be to  have perpetual succession sure elective presentative or donative and that be  the effect of the say word and not to make a corporation and the king grant  shall not be take by implication sure by the word to make a incorporation and  also to give licence to grant the say rend for then the king grant shall enure  to two intent admit that there shall be a incorporation by implication yet the  incorporation ought to be before the licence and here the licence be before  the incorporation and therefore it be void the grant ought to have be that the  king give licence to make to raise up Cantar c and there be not any such word  in the charter but only licence to grant a rend c cuid chaplain c the licence  be secundum ordination per r Ramsey fiend and therefore the king be deceive  because he can have knowledge what ordinance it shall be it be object that the  distress be without warrant and void because the licence do extend to grant a  rend only without mention of any distress which objection I have here gather  out of the book report at length Henry a b and the report of Fitzherbert in  Henry grant and out of the record itself as to the first and second objection  it be resolve that the grant be good for all the grant of Chauntrys be of such  from sure cue chaplain and although there be not such chaplain at the time it  be not to the purpose for if the king grant to the commonalty of Islington  that they shall be incorporate of a mayor bailiff and that they have power to  choose one it be good although the election of the mayor be future so note  reader a difference betwixt a estate or interest which none can take without  present capacity and a power liberty or franchise or thing new create which  may take effect in going to be as to the it be resolve that whereas the king  by his charter say a certain chaplain it be a sufficient incorporation andwhen  he say in the habendum Himself successorib n'est the same makethasufficient  succession and so note reader that this grant of the king do enure to three  intent sure to make a incorporation to make a succession and to grant a rend  as to the it be resolve that where the licence to find the chantry shall be  first and to grant after that be needs not for it be not material which be  before for the law shall construe that first to the effect which ought but  here they be simul semel as to the that in the licence there be not word of  to pour to raise up to make it be resolve that notwithstanding the grant be  good notam reader from this that to the essence of a chantry or other body  politic two thing be only requisite sure a incorporation and a gift and not  any word of to pour to raise up to make firm or word to such effect for no  such word be contain in the grant of Henry the four and yet it be adjudge a  good chantry lawful incorporate and find and if such word have be requisite  and necessary in law the judgement ought to have be give against the chantry  because they be leave out in the king grant and thereby it appear that in the  case at bar they be explanatory and of abundance which be a judgement in the  point by the resolution of all the judge in the exchequer Chamber as to the  six point it be resolve that these word secundum in ranks per r Ramsey fiend  import sufficient certainty sure to make Ramsey to ordain what mass and other  divine service shall be celebrate of what habit or order the chaplain shall be  and whether he shall be elective presentative or donative and by force of  these word Ramsey in the case do ordain the same to be presentative by the  rector of the parish of saint magnus for ever as to the objection it appear by  the report of Fitzherbert where above that the opinion of the two chief  justice Hussey and Brian and Starkey chief baron and Fairfax justice be that  the distress be without warrant but Townshend conceive it to be good but  to look at think over it be adjudge that the distress be good and well warrant  by the grant for the chantry priest do distrain in the say house for the rend  and his distress be adjudge lawful and the plaintiff bar and the reason as I  conceive be because the king charter make for the erectionofpiousandcharitable  work shall be always take in the most favourable and beneficial sense and the  most beneficial rend that a man can grant be a rend charge the distress be a  necessary incident to the rend for without that the grantee shall be without  remedy word are to take without effort come execution and word be to be take  with the effect Edward which case I have cite at large because it be notable  and pertinent and strong as I conceive then the case in question second power  be give to Sutton to place a master of the say hospital at all time hereafter  to place erect find and establish in the say house c one free school for  instruct youth which well expound the precedent word concern the hospital the  branch of the charter the answer to the objection before b for these word  extend only to make fit and to finish and furnish a grammar school within the  say charter house and a learned preacher to teach all in the word of God we do  by these present ordain constitute limit and appoint that the say house and  other the premise shall from henceforth be ever hereafter nam incorporate and  call the hospital of king James find in the charter house within the county of  Middlesex at the humble petition and at the only cost and charge of Thomas  Sutton esquire and the same hospital and free school by the name of the  hospital of king James c we do firm by these present erect find and establish  and confirm to have continuance for ever by this clause the king in  present time give the name of the hospital but as it appear before Sutton have  devise it and have sue to the king to name it accord and that the name of the  incorporation itself sure at the humble suit of Thomas Sutton do import so  that as it be say in E.3.14.b and E.4.56a b the name of incorporation be as a  proper name or name of baptism in this case Sutton as godfather give the name  and by the same name the king do baptise the incorporation by which it appear  that the objection that the king can give a name to a house which be the  inheritance of another be not of any valve here Sutton have consent and assent  to it and all the same be do at his humble suit and this objection do tend to  the dissolution of all ancient Deans and chapter for at first as appear in the  three part of my report in the case of the dean and chapter of Norwich all the  possession be to the bishop and yet by his assent the dean and chapter be  incorporate and nam of the cathedral church which do then belong to the bishop  only and afterward a certain portion be assign to the chapter so that the  chapter be before that they have any possession and that be the reason that of  common right the bishop be patron of the prebend that because their possession  be derive from the bishop and therefore he be patron and founder and therewith  agree e ab ass pl e e b Henry so that at first the dean and chapter be by the  assent of the bishop incorporate and nam of the church cathedral of the bishop  and it be say that question move in the exchequer use to be like spirit which  may be raise with much ease but suppress and vanquish with much difficulty but  these question be like ruinous building more easy throw down then raise and  set up and all the argument which have be make against this honourable work of  charity be hatch out of mere conceit and invention without any ground of law  and such which have any colour be utter mistake answer to the objection before  b and as to the four exception that the place of every corporation ought to be  certain and Sutton sue and the king licence Sutton to find erect c a hospital  at or in the charter house which be incertain to that the charter express  answer that the king by this clause do ordain c that the say house and other  the premise shall from henceforth for ever hereafter be remain c and shall  ever hereafter be nam and call the hospital of king James find in the charter  house so that all the house and premise be baptise by the king by the name of  the hospital c in which be no shadow of incertainty and therefore Suttonas to  the licence for the mechanical part which as have be say be abundant to get  and finish all or any part of the house for a hospital c yet all the house  itself orchard and garden c be nam by the name of the hospital and it be  observe that the king by this clause not only name the say house to be a  hospital but by the name of the hospital to be erect find establish and  confirm so that the king name it and leave the mechanical part to Sutton to  perform and of the same importance be the other objection that a know name be  not sufficient to find a hospital but it ought to be describe by meet and bind  as in diverse precedent have be use for it appear in Willim de Londres case e  b Adam bring a to know facias against Willim de Londres of the manor of e the  defendant plead that he himself be master of the hospital of saint Bartholomew  and so bear the name of dignity not nam judgement of the writ to which the  plaintiff reply that which the defendant call a hospital be the manor of east  Smithfield and be a manor at the time of the fine levy and it be hold by the  court that by this Writ he ought to have the manor as the manor be at the time  of the fine levy and whereas the manor be make a hospital after the fine by  this suit he be to defeat your estate and your name and accord it be rule that  the Writ be good which prove that a manor which import more certainty and  variety than a house know by a certain name may be create into a hospital and  in ass pl John de derby's case the clause of the charter a manor make corpus  praebend the five clause stand upon two branch for the better maintenance and  continuance of the say hospital c and that the same may take the better effect  and that the revenue may be the better govern and employ there shall be  sixteen governor and name fifteen of they by express name and such person as  from time to time shall be master to be the first and present governor and the  say person and their successor by the name of governor of the land c one body  incorporate and politic by that name to have perpetual succession for ever to  endure we do by these present for ever hereafter real and full incorporate and  the word of this clause be word operativa word operativa the division of  corporation and it be to know that every corporation or incorporation or body  politic and incorporate who be all one either stand upon one sole person as  the king bishop parson c or aggregate of many as mayor and commonalty dean and  chapter c and these be in the civil law be call universitas sive collegium  what thing be the essence of a corporation now it be to see what thing be of  the essence of a corporation lawful authority of incorporation and that may be  by four mean sure by the commonlaw as the king himself c by authority of  parliament by the king charter as in this case and by prescription the which  be of the essence of the incorporation be person to be incorporate and that in  two manner person natural or body incorporate and political a name by which  they be incorporate as in this case governor of the land c of a place for  without a place no incorporation can be make and here the place be the charter  house in the county of Middlesex vide Henry Det Edward b Edward by word  sufficient in law but not restrain to any certain legal and prescript from of  word and for as much as good plead be lapis Lydius the touch stone of the true  sense and knowledge of the commonlaw the from of plead of a incorporation by  prescription be to be observe for in such case he ought to prescribe in every  thing which be of the essence of the incorporation in the book of entry quare  hinder the plead be a certain Hospitale saint Mariaede Bristol de to make one  instructress convent a toto tempore c incorporat to be per nomen instructress  convent hospital Sanct mariae de Bristol and there it appear that there they  purchase land and tenement and be implead without any prescription for the one  or the other because theyareincorporated by prescription by a certain name  then to implead and be implead to grant and purchase be incident to a body  incorporate m Henry rot in the common plea there the prescription be custos  substitute college  that supplies a place in choir Hereford are a toto tempore  c to be incorporat per nomen jailer et Vicar college  that supplies a place in  choir Hereford and there also they purchase and be implead as incident to the  incorporation Lib intrat tit ass fol magister brother et sister brotherhood  sive guildae nine row sanctorum A messenger juxta Brainford bring a assize the  tenant plead quoth in shaggy hair de Brainford be quaedam brotherhood  incorporata infra time memory de instructress brother et sister nine row  A messenger juxta Brainford bridge without hoc quoth to have largely ankle  brotherhood which be report in Edward a where the tenant at first plead no  such incorporation and if it be not find and nought because two bar and then  he plead the say plea quoth be quaedam brotherhood incorporata c and yet there  they be feoff by Bocking upon condition and capable thereof as incident to a  corporation and therewith agree the bishop of Exeter case in the book of entry  Henry b the corporation of Godmanchester Henry a b in the case of the hospital  of wycombe five Henry in e a the master of the hospital of Burton S lazar  prescribe quoth ipse et all predecessor Himself instructress hospital predict  a toto tempore c naming et  understand  to be c tam per nomen instructress  hospital consecrated lazari de Burton de row consecrated lazari de Jerusalem  in England how per nomen instructress de Burton consecrated lazari de  Jerusalem in England by which it appear that this word incorporo or any  derivation thereof be not in law requisite to create a incorporation but other  equivalent word be sufficient as naming  understand  and therewith agree ass p  in the prior of Plimpton's case and Edward b in the case of the abbot of  glastenbury and in none of these book or record be any mention make of these  word farm to raise up c or any other like word for as it have be say they be  only declaratory word and the effect of they may be do by the owner of the  land without any grant and it be well observe that in old time the inhabitant  or burgess of a town or borough be incorporate when the king grant to they to  have Gildam a merchant in the register b where the Writ do recite quoth come  inter the other freedom fellow citizen community Winton per papyrus  ancestor  our quondam king England quas per papyrus  our men  to make firm concession  sit the same quoth nullus the dawn who to be infra gildam a merchant placitet  extra mouse c where guilda signify cohabitation seu brotherhood incorporata  and upon that the place of their meeting and assembly be call the guild hall  and I have see the charter make by king h Textoribus London by which he grant  to they that they shall have Gildam a merchant and a confirmation of it make  by king h by which charter they be incorporate and where the opinion of Fineux  in h b and of Prisot in h b be cite at the bar that a corporation aggregate of  many can be a body only without a head the same be utter deny for at first  most part of the corporation be a body without any head by force of these word  Gilda a merchant and that a corporation aggregate of many may be without a  head see18Edw.2.Annuity Edward b ass ass Henry Henry ab Henry Edward b ab  Edward ab maria dyer and it appear by record that Paulinus the first  archbishop of York after he have baptise the inhabitant of Nottingham shire in  the river of Trent find a collegiate church in Southwell of prebendary  consecrate to the virgin marry which continue a body without a head even to  this day see for this word guild or fraternity in the book of entry Edward cap  r c the statute of Edward of chantry in which three thing be observe how aware  antiquity do always comprehend much matter in a narrow room that to the  creation of a incorporation the law have not restrain itself to any prescript  and incompatible word that when a corporation be due create all other incident  be tacit annex to it and for direct authority in this point in e grant it be  hold by Brian chief justice and choke that a corporation be sufficient without  word to implead or be implead c and therefore diverse clause subsequent in the  charter be not of necessity but only declaratory and may well have be leave  out as by the same to have authority ability and capacity to purchase c but no  clause be add that they may alien c and it needs not for it be incident to sue  and be sue implead and be implead to have a seal c that be also declaratory  for when they be incorporate they may make or use what seal they will to  restrain they to alien or demise but in certain from that be a ordinance  testify the king desire but it be but a precept which do not bind in law the  survivor shall be the corporation that be a good clause to oust all doubt and  question which may arise the number be certain if the revenue increase the  same shall be employ to increase the number of poor c that be but explanatory  as appear by the case of Thetford school in the part of my report f ab to be  visit by the governor c the same be also explanatory for in this case the poor  which shall be resident in the house of the charter house shall not be  incorporate but certain person in who the possession be vest who shall not be  resident there but only to have the general government and order of the poor  therein so that this case be out of the statute of Henry c l and Elizabeth cap  for if no visitor have be appoint by the charter the governor shall visit and  the book in e ass do not gainsay it where be hold that if the hospital be lie  the patron shall visit and if spiritual the bishop shall visit so that every  hospital be visitable it be true but in the case at the bar the poor of the  hospital be not incorporate and so no legal hospital to make ordinance the  same be requisite for the well order and governmenting of the poor c but not  to the essence of the incorporation the exemption from the ordinary be but  declaratory for be a Lay-incorporation he neither can nor ought to visit the  licence to purchase in mortmain be necessary for the maintenance and support  of the poor for without revenue they can live and without a licence in  mortmain they can lawful purchase revenue and yet it be not of the essence of  the corporation for the corporation be perfect without the same so that by  that what have be say it appear what thing in noble birth be requisite to a  complete body incorporate and which be word operativa in this case which be  necessary to be know in every case the resolution of which it appear how  necessary it be that the law and experience join in hand together answer to  the that objection before b as to the five objection that no incorporation be  present make as the letter patent import nor can be till the master be nam and  therefore the charter be repugnant and void to that it wasanswered that this  objection do extend to the overthrow of a great number of incorporation for  when a corporation be create by letter patent by the same patent power be give  to they to a choose master alderman or bailiff or governor or the like and yet  they be present incorporate by the same letter patent and therewith express  agree Plo come in the coke's case e h grant vouch at large before to the first  and second objection vide e aid e e grant and it be true it be present by the  letter patent a corporation in P. of abstraho. but not in coagulation till the  name of the master and a case adjudge in the king bench mich Elizabeth rot  in person reg be strong urge the governor of the possession revenue and good  hospital Edward king England Sextius bring a bill of debt against Elias  germane the defendant plead that king Edward the six recite the care of the  city of London for the relief of poor people and infant  to go away mayor  Civib et partnership Lond'Domummansionalem rocat Bridewell c and there the  king declare his intent that Bridewell shall be find erect c a hospital for  the say poor c idem king ut thought to sew melior to take in hand execution  and to the end the land which shall be grant to they shall be better govern  per easd litter patenes to cause to revolve et to order quoth Hosp pillage  come such establish erect et make firm fuer hospital e reg England Christ  Bridewell et S though Apost nomine et to drive to imperpetuum et quoth major  partnership et fellow citizen community pillage to bore a steersman c et quoth  the same gubern de the other make real et to bore and corpus corpora per nomen  steer possess reventionum et good hospital e reg England Christ bridew et  saint the Apost c and further plead quoth no one hospital quale in eisd lit  pat mentionat post confect pillage a letter pat such establish erect et  make firm to be c upon which the plaintiff do demurrer in law and upon  argument at the bar and bench it be adjudge for the plaintiff for the say  ordinance that the say house shall be a hospital come such establish c fuer be  intend only of the mechanical part of a actual hospital sure of the fit and  finish of the hospital house with poor c and this hospital in intention only  be sufficient to support the name of a corporation and the word de  present time sure quoth iid steer de the other make real et to bore and corpus  corpora per nomen c in law do incorporate they present and shall not stay till  there be a actual hospital or till the house be fit or furnish which be the  mechanical part of the hospital sure for the habitation of the poor which be  the first thing to be observe by the say judgement vide e aid king Edward the  three new find a priory and grant to the monk that they may choose a prior and  before that the prior be choose wonder make a lease to one a for life the  remainder to the prior and convent and in a to know facias against a he plead  that wonder be seize in fee and lease to a the remainder to the prior and  convent who be new find by the king and because there be not yet a prior the  right be in the king until and pray aid of the king and the aid by award be  grant and a Writ of Procedend come and then a the defendant show that after  the aid grant there be a prior make and ordain in who the right remain and  pray in aid of the prior he be oust of the aid because he have aid before  which prove that the remainder in such case be good the second thing to be  observe in the say judgement in the say case of the hospital of Bridewell be  that one corporation may be make out of another corporation know the major  citizen and commonalty of London be create in their politic capacity governor  c of the hospital of Bridewell e b many corporation may be create one out of  another as the dean and chapter of Lincoln be a joint corporation note the  dean by himself be incorporate and every of the prebend be incorporate by  himself and in a case which be so manifest this shall suffice and as to the  six objection that till a hospital be find that no incorporation can be for  then there shall be idle andmathematicalgovernours answer to the that  objection before b it be answer that there be a hospital in potestate and a  hospital in exec also a hospital in force and a hospital sharply a hospital re  and a hospital nomin and as to the creation of a incorporation a hospital  potestate force seu nomin suffice as one may by letter patent be governor of a  Army before there be a army vide h protection and the same agree with  philosophy and reason Aristotle lib de generation say quoth dearly to produce  meat and that be true in potestate but not sharply and so any fowl so soon as  it be hatch be winged a to fly because to have to be able to fly though act  to fly non to have so a child as soon as he be bear be say theoretician  because he have power although he have not and perhaps never shall have  account sharply and it be also prove by old record and our book also as in the  book of entry title at the first nod king h a certain house in in loco sive  solon at sheen and abut and bind the soil how to call et nuncupar  to cause to revolve house jesus de bethlehem de sheen to lead ordinand et  fundand et house that quant in Self to be to lay the bottom et to raise up  which be but a nominative house for none be then build et on that account  locum et sol pillage de sheen ut primar fundationem devoted to c by which it  appear that a void place or soil in which a house be intend to be build may by  the king charter be nam a house and this nominative house shall be sufficient  as there it be to support the name of the incorporation also it appear by  Matthew parish and Polydore Virg Chronic Chronicor c the hospital of saint  John of Jerusalem in England be incorporate in Henry of the templar by the  name of magister soldier temple et brother Himself in England in and h and yet  neither the fabric of the temple nor the house of the hospital be find and  build say regnant h of the one jordan biset a human being Of et be moneyed a  holy marshal money and of the other Heraclius patriarch of Jerusalem be  founder vide camden britain which prove that a void place to support the name  of a corporation may by the king charter be nam a hospital or temple and it be  not requisite that there be always truth in the name of the corporation either  of a hospital or of any other body politic king Henry the eight in the second  year of his reign accord to the will of king Henry the seven grant to diverse  bishop Thomas earl of Arundel c John Fineux and Robert read chief justice John  young master of the roll c who be executor of king Henry the seven a certain  peciam terrae peremptory or urgent call Le Savoy in the parish of saint  clement and saint marry Le strand and thought quoth the same a certain  hospital in et super pillage peciam terrae peremptory or urgent call Savoy  to raise up to pour et estabilire to be able h the king licence they quodd  hospital de to make one instructress et chaplain super predict peciam land  peremptory or urgent call Le Savoy to pour Hospitale come such foundation  to be shall be incorporate by the name magister Capallanorum Hospital'H  nuperregis England de Savoy and yet in truth it be not a hospital in the time  of Henry the seven but in intention only and yet the king in his charter do  call it the hospital of king Henry the seven and the same be admit to be a  good name of incorporation by all those who argue the case betwixt Mariat et  pascall upon the incorporation of the say hospital Trin Elizabeth in the  exchequer where the case be adjudge or in the exchequer chamber where it  depend by Writ of error and therefore in e b king there the corporation be  prior Hosp S johan Jerusal in England and so e Hospitale S lazari de Jerusal  in England which suffice for the name of the corporation although it be but a  fiction sure that either S John which be S John the evangelist or Jerusalem be  situate in England so instructress soldier temple Jerusal in England and in  the register prior et frat consecrated mariae de monte Carmeli in England so I  have see a record that Catharine the first wife of king Henry the eight have a  licence to find a chantry by the name of the chantry de monte calvary extra  algates London and it be great reason that a hospital in expectance or  intendment or nomination shall be sufficient to support the name of a  incorporation when the corporation itself be only in P. of abstraho. and rest  only in intendment and consideration of the law for a corporation aggregate of  many be invisible immortal rest only in intendment and consideration of the  law and therefore in h b a dean and chapter can have predecessor nor successor  e e they may not commit treason nor be outlaw nor excommunicate for they have  no soul neither can they appear in person but by attorney h Br fealty a  corporation aggregate of many can do fealty for a invisible body can be in  person nor can swear blow come and the lord berkeley's case it be not subject  to imbecility or death of the natural body and diverse other case a thing  which be not in be but in apparent expectance be regard in law as a bishop who  be elect before he be consecrate a infant in his mother belly before his birth  c e Bre e voucher e e e quare hinder so for the name of a corporation it be  sufficient to name a place in England by the name of Jerusalem mount Calvary  mount Carmel Bethlehem c a strong the name of a spacious and goodly house well  and actual build by the name of a hospital be sufficient for the same import  truth and certainty by which it appear that in the case at bar there be a  lawful incorporation of the governor c create and institute by the king  charter and by consequence as well any person in England as Sutton may give  and grant to they before any foundation lie or to be lie by Sutton as it be  imagine he ought to have do before they be capable c but the same be clear  answer and confute before and in truth haec to read out be confutasse as to  the seven objection it be to know that there be two manner of foundation  answer to the that objection before b one foundation to take hold the other  foundation to achieve and therefore quatenus and capacity et habilitatem the  incorporation be metaphorical call the foundation for that be the beginning as  a foundation quasi fundamentum capacity precede the whole and therefore in h a  a Writ be bring against John Arden abbot of S John baptist of Colchester the  defendant plead that before time of memory foundation be make of the same  place per nomen abbot eccl monast de S Joh de Colchester c where foundation be  take for incorporation e e a h a h a in the dean and canon of Windsor case and  diverse other book agree with the same say quatenus and endowment the first  give of the revenue be call the foundation and who give the same be the  founder in law for particularly foundation be quasi fundi giving over  and the  first gift be fundamentum endowment seu comparison et appellation fundi  building et agree to hold together and that be prove by the statute of west c  si abbate earlier times custodes hospital et something else domor religiosar  fundatar ab Self king well a ancestor n'est alienaver well de the other tenem  house Self ab Self well a ancestor n'est joining of battle c in which be  observe that in respect of tenement collate or give by the king the house be  say to be find by the king but more full in the clause follow in the say Act  si autem house that a comite baron well ab other to lay the bottom to be  to have that a quo c tenement such avoid  collat fuer br e and recuperand c  where the collation or gift of the tenement be call the foundation and where  the founder bring the say Writ de contra form comparison the Writ of Praec  quoth  To give back mesuag quoth eid to domesticate collat fuer vide h f n b  old n b ass p he who give the first land be the founder because to pour in  that sense be nothing else but farm dare and therewith agree e corrodie in a  Writ of prohibition where a common person be founder of a hospital the writ as  appear in the king a say Hospitale consecrated Egidii leprosor de Burton per  antecessor r son I and sustentation leprosor et another pauper et to weaken  ibis totum in temporal et nothing in spiritual establish step forth and the  like Writ where the king be founder come hospital our men  establisher  harmless juxta Lincoln de fundatione progenitor nostror king England c de  terris et possession pro sustentation pauper et to weaken in eod hospital  to spend to endow to step out in which it be observe that where the first Writ  say establish this Writ call it provide with a dowry e the abbot of lyre bring  a to know facias against the dean of Woborn where the dean say he hold of the  patronage that be of the king foundation and pray aid of he and have aid and  there come a Writ of procedendo and it be challenge because the Writ say of  the patronage and not of the collation and it be take all one e aid the dean  of Stafford case the deanery be say to be of the foundation and a little after  the king collation Edward in sirach case by the foundation the land be  amortised vide Edward ass Edward a Edward a Edward Edward b Edward the earl of  Richmond case Henry Edward and therefore it be resolve that if the king have  incorporate the poor of the say hospital Sutton needs not have make any  instrument comprehend any foundation or erection c but his gift of the land be  the first act have make he founder and the very first donation be all the  foundation which be requisite in law and to the erection of a hospital c there  be not in law any thing requisite but incorporation and donation and in the  report at large I have omit all the argument at length on both side upon one  common ground where a act to one intent shall enure to diverse intent distinct  in time some hold that the bargain and sale do amount not only to a dotation  but also to a foundation and other all man e contra for it appear to you now  without any question that the first dotation be the foundation and yet in that  also a difference be necessary to be well understand sure when the king  express the word design the place appoint the number and give they a name by  his charter so that the same be a complete corporation there the founder or  donor have nothing to do but to make the dotation without any instrument  comprehend these word farm to raise up to make firm c or other the like word  for the common person who be the founder in such case have nothing to do in  the power of incorporation but when the king by his charter do reserve as well  the nomination of the person as the name of the incorporation to the common  person who shall be the founder there he ought to name the party and to  declare by what name they shall be incorporate and there many time although it  be superfluous he use these word farm to raise up c or the like and when the  common person have do it and declare it in write accord to his authority then  they be incorporate by the king letter patent and not by the common person for  he be but a instrument and the king make the incorporation in such case in the  same manner as if all have be comprehend in the letter patent themselves as it  be true that none but the king alone can create or make a corporation as it be  hold in Edward a ass but who per other compose per see Self to make to see see  for this difference Edward b Edward grant Henry a b grant Henry and as to the  eight objection against the nomination of the master answer to the that  objection ante a it be resolve that it be good for Sutton have a liberty at  his will and pleasure to nominate he and when he be nam he be master by force  of the letter patent and be now as if he have be nam in the letter patent  themselves at the beginning and the other part of the objection be answer  before answer to the that objection before a and as to the objection against  the bargain and sale it be first resolve without question that money give by  the governor or any of they as a private person be a good consideration to  grant the land to they in their politic capacity but the indenture import that  they pay it as governor and by such name they be acquit by the indenture also  there be twelve penny rend reserve to Sutton and his heir which be a good  consideration although in the habendum a trust be declare the same without  question can make the bargain and sale void but the conveyance be by bargain  and sale it be wise do to declare the confidence and trust and as to the three  the same be clear answer and resolve as before answer to the that objection  before a and as to the last objection sure that in plead those governor can  plead that they be seize in jure hospital because there be not any hospital  incorporate nor in be at the time of the incorporation to that it be answer  that the plead shall be that they be seize in their demesne as of fee in jure  incorporationis of oneself and so it be plead in the coke case of London in  blow come vide Fulmerstone's case also in blow come vide Edward the case of  custos altar  he count that he be seize c in jure altar  and as to the  precedent which be show it be answer that there be many clause insert in  charter as well of the king as other ex experience a clergyman which be not de  necessitate law but some declaratory and explanatory and some prolix and  nugatory but law many men  to make headway et preficientia few  to bind together and all the judge which argue this case except the two before  say do conclude against the plaintiff and those two also different opinion do  assent to the judgement so that by the assent of all the say judge nullo  to speak against judgement be give against the plaintiff and the lord  Ellesmere lord chancellor of England hear all the argument at the bar and  bench do agree in opinion with the judge so that this great work of charity  have taste of such charity which ought to be in judge which be declare in the  statute of west cap ult summa charity be to make the whole of the laws omnibus  mask omni tempore when necessary to be and there be a good rule for these  governor and all other corporation which be express in the statute de  Templariis year  Edward in these word ita always quoth pia et frequented will  giver in omnibus to hold et to fill up et without interruption to make sacred  to abide and sir Thomas Fleming knight after the first day this case be argue  fall sick of which sickness he afterward die so as he never argue this case  the say sir Thomas Fleming be first a sergeant at law and afterward solicitor  general to queen Elizabeth and to the king that now be for the space of twelve  year and then be prefer to be chief baron of the exchequer after the death of  sir William Periam and then be advance to be chief justice of England after  the death of sir John Popham all which place he discharge with great judgement  integrity and discretion and he deserve the good opinion of all that know he  because he be of a sociable and a peaceable nature and disposition the reason  of report this case at large which case I have report at length for three  cause for the confirmation of incorporation find for work of piety charity in  time pass for the better instruction how they may be after so and establish  that no exception may be take to they for the resolve of certain opinion and  question which be move at the bar and which may have disturb the peace of the  law in the argument of this case many other authority be cite know Edward  Edward Edward Edward Edward Edward Edward Edward Nonabilite Edward coroner  Edward Edward aid Edward ass r breve Henry Henry Henry Henry Henry Henry Henry  Edward Edward Edward lib Ent Henry Henry Henry Henry Henry Henry Henry br Corp  mar die Elizabeth die the case of the college of Grainstock Elizabeth dyer the  case of the college of Landebrevis pl come Grendon's case hill Elizabeth rot  sir Fr Fleming case in the come pl the name of the governor nominate by Sutton  and express in the say charter be the most reverend father in God George  archbishop of Canterbury Thomas lord Ellesmere lord chancellor of England  Robert earl of Salisbury John bishop of London Lancelot bishop of Ely sir  Edward coke then chief justice of the common plea and now chief justice of  England sir Thomas foster one of the justice of the court of common plea sir  Henry Hobart then the king attorney general and now chief justice of the court  of common plea John overall dean of the church of saint Paul in London George  mountain dean of Westminster Henry Thursby one of the master of the chancery  Jeffery nightingale Richard Sutton John law Thomas brown and the master of the  say hospital for the time be and after the death of the say sir Thomas foster  one of the justice of the court of common plea who be a grave and reverend  judge of great judgement constancy and integrity sir James Altham knight one  of the baron of the exchequer be accord to the say charter of one mind  general consensus in his place and the say master of the hospital which Sutton  have nominate durante be plea our sovereign lord the king that now after the  death of Sutton do by his letter patent nominate master for his life