that doth appear, it might be good. Such Declarations so subtle may ensnare any Defendant, and take away any Man's Inheritance. The Attorney should have taken Issue upon the Traverse, and that would have brought the whole Matter in Question.
As to the Mistake about Wilson's Presentation, that cannot vitiate against an express Intent: The King's Design was to determine the Difference between his Incumbent and another; he would not have his Right in this Benefice to be questioned or disputed; for otherwise, there was no Reason for Th. to take a Grant to avoid Controversy, and yet that new Grant to leave him in as bad or worse Condition. Here's both Confirmation and Grant; and if so, what matters it, whether Wilson were presented one way or the other? Th. could not have been in a worse Condition, if he had miscarried in his Writ. The King designed to him all the Right which he had, and otherwise he was at the Charge of procuring Letters Patent, to no other Purpose than to be deceived. Besides, here was a good Consideration, tho' Th. had no Right: A Surrender of void Letters Patent is a good Consideration: 1 Rep. 143. Altonwood's Case, and 5 Rep. 65. Lord Chandos's Case; the King there thought himself seized by Virtue of the Surrender, which he was not, yet held good; so that 'tis not every Mistake that will avoid a Grant, when the Intention appears. 1 Roll's Rep. 23. Therefore, if there may be any Thing given in Evidence, which might support these Letters Patent, they shall not be adjudged void upon Oyer. And to make these void of Car. 1. they must construe those of the Queen void; and these cannot be adjudged void, because they are not before the Court. Letters Patent recited were never adjudged illegal; for, notwithstanding this Recital, there might be more Words in them, which might make them good: 'Tis inter alia. Suppose it had been spectant' or existent' in Bedall, that would have passed the Advowson in Gross. 'Tis not inconsistent with any Thing said in this Patent of Car. 1. to say that the other of Queen Elizabeth contained or passed more, Mod. Rep. 194, 195. Hardres 231. the igitur is only nota continuationis, and doth not always suppose all that's precedent to be the Consideration; it can't well begin a Deed, and that is all; 'tis Ex uberiori gratia, &c. 3 Leon. 249. 'Tis impossible to suppose or use more comprehensive Words than in this Case, and therefore it was inferred that these Letters Patent of Car. 1. were good.
Inducement to maintain the Traverse sufficient in pleading. What to be traversed.—Then it was argued further with the Plaintiff in the Writ of Error, that in this Case Mr. Attorney can take no Advantage of either of these Mistakes in the Defendant's Plea, if they are such; for that 'tis only Matter of Inducement; and the Letters Patent needed not have been pleaded with a Profert hic in curia, and therefore cannot hurt: If the Inducement be good to maintain the Traverse [220] or make it material, that's enough; but still the Inducement is not traversable. 'Tis true, that generally speaking, a Deed or Grant after Oyer becomes Part of the Plea: But still 'tis only Inducement. If a Defendant confesses and avoids, the Plaintiff shall not depend upon that which he confesses, but answer that whereby he avoids the Plaintiff's Title or Charge. This is no more than if they had traversed the Grant, which they could not do. In the Case of a common Person, suppose the Defendant's Title not full, yet if he traverses the Plaintiff's, that's enough. Form requires an Inducement to a Traverse, but the latter is only material for the Plaintiff to answer to; for nothing can be traversed, but what is material. Now, why should it not have been a good Answer to their Declaration, to have said that Car. 2. presented by Lapse, absque hoc, that Car. 1. died seized? For by this the Seisin or Presentation of Car. 2. had been avoided; and there's nothing else material in the Declaration: For the Seisin of Queen Elizabeth and Jac. 1. are not to the Purpose. And if answered by the Defendant, it must have been against him; there had been a good Title for the King without it: Then supposing it necessary to shew how it came out of Car. 1. the Attorney General can only take Issue on the Traverse of his dying seized; for that denies the whole Title that is material to be answered to: Now, whatsoever shews that the Plaintiff hath no Right to the Thing in Demand, is a good Plea, let who will have the true Right. The true Title upon this Declaration is, that Car. 1. presented, and thereby became seized, and died seized; and the denying him to die
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