108 Stagnum ibid. Appertaining 108 109 Reputation 109 Without any lett 121 Quiete pacifice ibid. Lawfully enjoy 124 Dedi Concessi 126 Wreck 168 Derelict ibid. Imported or brought 171 172 Per Nomen 174 175 Claim 188 193 Una cum 197 Nature what it is 221 224 Unnatural 221 222 224 Uncle 241 Communia 255 Remainder 269 in loco 279 Naturalization 280 Antenati Postnati 273 Neer of kin 306 307 308 309 310 Malum prohibitum malum in se 332 333 334 c. 358 359 Dispensation 333 336 349 Exemption 349 Commot 405 Exposition of Sentences 1. Words which are insensible ought to be rejected so also words of known signification so placed in the Deed that they make it repugnant and sensless are to be rejected equally with words of no signification 176 2. In things necessary there are no degrees of more or less necessary 344 3. What appears not to be must be taken in Law to be as if it were not 169 4. Lands usually letten shall be intended Lands twice letten 33 5. Lands which have at any time before been usually letten how expounded 34 6. How long time will gain a Reputation to pass a thing as appertaining 109 Extinguishment 1. Extinguishment of a Rent is when it is absolutely conveyed to him who hath the Land out of which it issues or the Land is conveyed to him to whom the Rent is granted 199 2. A perpetual union of the Tenancy to the Rent or Rent to the Tenancy is an extinguishment of the Rent 39 3. Where Rent is arrear and afterwards it is granted over in Fee and an Attornment thereunto here the Grantor hath absolutely lost his arrears and cannot after distrain 40 Extent 1. An Extent is sueable into Wales but a Ca. Sa. or Fi. Fa. is not 397 Fee-simple 1. A Fee-simple determinable upon a Contingent is a Fee to all intents but not so durable as an absolute Fee-simple 273 2. A. had issue W. T. and R. and devised to T. and his heirs for ever and if T. died without issue living W. then W. should have the Land this is a good Fee in T. And W. hath a Fee in possibility by Executory Devise if T. dyed without issue before him 272 Fieri Facias See Execution  Fine Fines 1. A Fine levied without consideration or use expressed is to the use of the Conizor 43 2. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 42 3. The wife in that case shall not be endowed neither shall it descend to his Heir 41 Formedon 1. The Statute de Donis formed a Writ of Formedon in the Descender for the new Estate Tayl created by that Statute but makes no mention of a Formedon in the Reverter as already known in the Chancery 367 Franchise 1. Franchises Inferiour and Counties Palatine are derived out of the Counties by the Kings Grants where the Kings Writ did run 418 Fraud 1. Wheresoever an Action of Debt upon Bond or Contract is brought against an Executor he may confess the Action if there be no fraud in the case although he have notice of a former Suit depending 95 Gardian in Soccage See Title Statutes 26. 1. WHO is Gardian in Soccage at the Common Law 178 244 2. What a Gardian may do in his own name 182 3. Who were Legitimi tutores or Gardians by the Civil Law 244 4. The Exposition of the Statute made 12 Car. 2. 183 184 5. The Gardian by the Statute of 12 Car. 2. doth not derive his authority from the Father but from the Law 186 6. The Lands follow the Gardianship and not the Gardianship the Lands 178 7. The Gardianship now by the Statute may be till One and twenty years 179 8. Such a special Gardian cannot transfer the custody of the Ward by Deed or Will to any other 179 181 9. The trust is only personal and not assignable neither shall it go to the Executors or Administrators 180 181 10. If the father appoint the custody until One and twenty and the Gardian dies it determines with the death of the Gardian and is a Condition in Law if he live so long 185 Grants Grantor Grantee 1. The Law doth not in the Conveyances of Estates admit Estates regularly to pass by implication But in Devises they are allowed with due restrictions 261 262 c. 2. A thing so granted as none can take by the Grant is a void Grant 199 3. In Grants words which are insensible ought to be rejected so likewise words of known signification when they are so placed in the Deed that they are Repugnant are to be rejected equally with words of no known signification 176 4. The meaning of the word appertaining in a Grant and how far it will extend and what it will pass 108 109 5. Land in possession cannot pass by the Grant of a Reversion but by the grant of Land a Reversion will pass 83 6. By the Grant of Stagnum Gurgitem aquarum the Soyl of the Pond passes 107 108 109 7. Where by the Deuise of the Farm of H. the Mannor of H. will well pass 71 8. To a Grant of a Rent by the Common Law an Attornment is requisite 39 9. A Lease is made habendum for 40 years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for 40 years shall commence presently 73 74 80 81 83 84 10. To give or grant that to a man which he had before is no gift at all 42 Grants by the King See Non Obstante Pardon Prerogative 1. Where the Kings Grant is void although there be a saving in an Act of Parliament of all the Right of such Grantee yet that shall not aid it 332 2. If a Patent is not void in its creation it remains good after the death of the King that granted it 332 Habendum 1. A Lease is made habendum for Forty years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for Forty years shall commence presently 73 74 80 81 2. A Rent is granted habendum for Seven years after the death of the Grantor Remainder in Fee 46 Habeas Corpus 1. The Writ of Habeas Corpus is now the most usual Remedy by which a man is restored again to his liberty if against Law he hath been deprived of it 136 2. The Cause of the imprisonment ought as specifically and certainly appear to the Judges upon the Return as it did appear to the Court or person authorized to commit 137 138 139 140 3. A prisoner committed per mandatum of the Lord Chancellor by vertue of a Contempt in Chancery was presently bailed because the Return was generally for Contempts to the Court but no particular Contempt exprest 139 140 4. The Court of Common Pleas or Exchequer upon Habeas Corpus may discharge Prisoners imprisoned by other
is not sufficient by the Rule of the Act of 25. unless confirmed by the King It was otherwise in the Popes case before the Act. There are many Presidents in Mr. Noy's Book where in like Obj. 2 case the King after the death of a Bishop holding in Commendam after his translation to another See and after his resignation hath presented All those Presidents are since the Twentieth of the Queen which Answ 1 cannot alter the Law 2. Who knows in the cases of death whether those Presentations were not by consent of the Patrons and doubtless there are Presidents wherein the Patrons did present else this Question had been earlier But Judicandum est legibus non exemplis Vpon Translation of a Bishop holding a Commendam in the Answ 2 Retinere as long as he continued Bishop there the King ought to present for the Dispensation is determined upon his remove and then is as if it had not been and a Dispensation gives no property to the Living nor takes away any But where property is given to the Living as by Presentation Institution and Induction or by Grant as in Appropriations Hob. Colts and Glovers Case and sometimes otherwise by the King such presenting or granting for a year or six is to grant it during life As an Atturnment cannot be for a time nor a Confirmation nor a Denization or Naturalization and the like but such Acts are perfect Manwarings Case 21 Jac. Crook f. 691. as they may be notwithstanding Restriction to time as is agreed well in Manwaring's Case I shall say nothing of the case of Resignation as not being in the present Question Judgment was given by the Opinion of the whole Court That the Avoidance was by Death not by Cession Hill 19 20 Car. II. C. B. Rot. 1785. Baruck Tustian Tristram Plaintiff Anne Roper Vicountess Baltinglass Vidua Defendant in a Plea of Trespass and Ejectment THe Plaintiff declares That the Defendant vi Armis entred into 20 Messuages 1000 Acres of Land 200 Acres of Meadow and 500 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick Westbury and Looffield and into the Rectory of Thornbury which Thomas Gower Kt. and Baronet and George Hilliard to the said Baruck demis'd the First of Octob. 19 Car. 2. Habendum from the Feast of St. Michael the Arch-angel last past for the term of Five years next ensuing into which he the said Baruck the same day entred and was ousted and ejected by the Defendant ad damnum 40 l. To this the Defendant pleads Not Guilty And the Jury have found specially That the Defendant is not guilty in all those Tenements besides 5 Messuages 400 Acres of Land 50 Acres of Meadow 100 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick and Westbury and in the Rectory of Thornbury and besides in one Messuage 100 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture cum pertinentiis in Looffield And as to the Trespass and Ejectment aforesaid in the said five Messuages c. and in the Rectory of Thornbury the Iury say upon their Oath that before the said Trespass and Ejectment suppos'd 22 Junii 12 Jac. Sir Arthur Throgmorton Kt. was seis'd in Fee of the aforesaid Rectory and Tenements last mentioned and of the said Premisses in Looffield and so seis'd A certain Indenture Tripartite was made 22 Junii 12 Jac. between him the said Sir Arthur of the first part Edward Lord Wootton Augustine Nicholls Kt. Francis Harvey Esq and Rowly Ward Esq of the second part and Sir Peter Temple and Anne Throgmorton Daughter of the said Sir Arthur of the third part To this effect That the said Sir Arthur Throgmorton did covenant and promise with the said Lord Wootton and Sir Augustine Nicholls in consideration of Marriage to be had between the said Sir Peter Temple and the said Anne and other the considerations mentioned in the said Indenture by Fine or Fines before the Feast of St. Michael the Arch-angel next ensuing or other good Conveyance to be levied by him and the said Dame Anne his wife to the said Lord Wootton c. The scite and precinct of the Priory of Looffield the Rectory of Thornbury and divers Mannors Lands and Tenements in the said Indenture mentioned several yearly Rents therein mentioned and all other his Lands in the Counties of Northampton Buckingham and Oxford at any time belonging to the said Priory to convey and assure To the use of himself for life without Impeachment of Waste Then to the use of Dame Anne his Wife Then to the use of the said Sir Peter Temple and the said Anne his Wife during their natural lives and the longer Liver of them and after both their Deceases To the use of the first Son of the Body of Anne by the said Sir Peter begotten and of the Heirs Males of the Body of the said first Son so to the sixth Son Then to the use of all other Sons in succession in like manner of the Body of Anne begotten by the said Sir Peter And for default of such Heirs To the use of all the Issues Female of the Body of the said Anne by the said Sir Peter begotten and the Heirs of the Bodies of the said Issues Female For default thereof To the first Son of the said Anne by any other Husband and his Heirs Males and so to the tenth In like manner to the Issues Female of the Body of Anne with divers Remainders over A Proviso That it be lawful for Sir Arthur at all times during his life to lett set and demise all or any the said Premisses aforesaid which at any time heretofore have been usually letten or demised to any person or persons for and during the term of One and twenty years or under in possession and not in Reversion or for or during any other number of years determinable upon one two or three Lives in Possession and not in Reversion reserving the Rents therefore now yielded or paid or more to be yearly due and payable during such Lease and Leases unto such person and persons unto whom the said Premises so to be demised shall come and be by virtue of these Presents if no such demise had been made so long as the same Lessees their Executors and Assigns shall duly pay the Rents and perform their Conditions according to the true meaning of their Indentures of Lease and commit no waste of and in the things to them demised The like Proviso verbatim for Sir Peter Temple and Anne his Wife to make like Leases during their Lives and the Life of the longer liver of them after the death of Sir Arthur and Dame Anne his Wife That a Fine was accordingly levied c. to the uses aforesaid They find that all the Messuages Lands Tenements and Rectory in the Declaration mentioned are compris'd in the said Indenture Tripartite They find the death of Sir Arthur Throgmorton and Anne his Wife 2. Septemb.
retail or in gross to their best advantage in their houses or elsewhere Non obstante the Statute of 7 E. 6. They find the Act of 12 Car. 2. c. 25. and the confirmation of it concerning the giving Licences to retail Wine and the Proviso therein prout Provided also That this Act or any thing therein contained shall not extend or be prejudicial to the Master Wardens Freemen and Commonalty of the Mystery of Vintners of the City of London or to any other City or Town Corporate but that they may use and enjoy such Liberties and Priviledges as heretofore they have lawfully used and enjoyed They find That the Master Wardens Freemen and Commonalty of the Mystery of Vintners in the City of London was an ancient Corporation of the said City of London at the time of the Act of 12 Car. 2. and incorporated by the Name of Master Wardens Freemen and Commonalty of the Mystery of Vintners of the City of London They find That the Defendant three years before and during all the time in the Information used the Trade of retailing of Wine and kept a Tavern in the Parish of Stepney in the County of Middlesex was an Inhabitant there and that the Defendants house in which the said Wine was sold is within two miles of the City of London They find That the Defendant within the time in the Information mentioned did sell Ten pints of Sack as in the Information mentioned to be drunk and spent in his said dwelling house being a Tavern in the said Parish of Stepney They find That at the time of the sale of the said Wine and three years before the Defendant was a natural born Subject of the King and a Freeman of the City of London of the said Company of Vintners Si pro quer quoad 50 l. pro quer Si pro Def. pro Def. 1 s. Vpon this Special Verdict three Questions have been raised 1. Whether the Patent of 9 Jac. was not void in its Creation 2. Admitting it was not void in its Creation Whether it became void by the death of King James 3. If it were a good Patent in the Creation nor was void by the death of King James Whether the Proviso in the Act of 12 Car. 2. Saving all the Right of the Master Wardens Freemen and Commonalty of Vintners in the City of London hath preserved all that Right which they had by the Patent of 9 Jac. against the Act of 12 Car. 2 1. I conceive That if the Patent 9 Jac. were not void in the Creation it remained good after the death of King James 2. If it were not void in the Creation nor by the death of King James all Right that the Master Wardens Freemen and Commonalty of Vintners had by it is still preserved by the Proviso in the Act of 12 Car. 2. but if the Patent of 9 Jac. was void in its Creation or by the death of King James then the Proviso in the Act of 12 Car. 2. aids them not at all So as now it is only insisted on That the Patent of 9 Jac. was void in its Creation for two Reasons 1. For that the Law of 7 E. 6. was such a Law pro bono publico as the King could not dispence against it more than with some other penal Laws pro bono publico 2. If he could to particular persons he could not to the Corporation of Vintners and their Successors whose number or persons the King could never know and that it stood not with the trust reposed in him by the Law to dispense so generally without any prospect of number or persons The Books have been plentifully urg'd at the Barr and by my Brothers who argued before me therefore I shall not Actum agere to repeat them But I observed not that any steddy Rule hath been drawn from the Cases cited to guid a mans Judgment where the King may or may not dispence in penal Laws excepting that old Rule taken from the Case of 11 H. 7. 11 H. 7. f. 11 12. That with Malum prohibitum by Stat. the King may dispence but not with Malum per se But I think that Rule hath more confounded mens Iudgments on that subject than rectified them Yet I conceive that Case and the Instances given in it rightly understood to be the best key afforded by our Books to open this dark Learning as it seems to me of Dispensations to which therefore I shall only or principally apply my self Before I enter upon it I must previously assent That every act a man is naturally enabled to do is in it self equally good as any other act he is so enabled to do And so all the Schoolmen agree That Actus qua actus non est malus Rom. 4.15 And that mens acts are good or bad only as they are precepted or prohibited by a Law according to that Truth Where there is no law there is no transgression Whence it follows That every Malum is in truth a Malum prohibitum by some Law In the next place I mean by the word Dispensation when I use it another thing than some of my Brothers defined it to be namely That it was Liberatio à poena or as others That it is provida relaxatio Juris which is defining an ignotum per ignotius but liberare à poena is the proper effect of a pardon not of a dispensation For a dispensation obtained doth jus dare and makes the thing prohibited lawful to be done by him who hath it upon which depends the true reason of many Cases which admit not of dispensation but a pardon frees from the punishment due for a thing unlawfully done Yet freedom from punishment is a consequent of a dispensation though not its effect But so it is also a consequent of repealing the Law and a consequent of an exception at the making of the Law of some particular person or persons from being bound by the Law I come now to the Case it self of 11 H. 7. wherein I agree That with Malum prohibitum by Stat. indefinitely understood the King may dispense But I deny that the King can dispense with every Malum prohibitum by Statute though prohibited by Statute only 1. The King may pardon Nusances that are transient and not continuing as a Nusance in the High-way which still continues and is not ended until removed cannot be pardon'd So of a Water-course diverted or a Bridge broken down Cok. Pla. Coron f. 237. they cannot be pardon'd so as to acquit the Nusance-maker for committing them but the fine or punishment impos'd for the doing may be pardon'd But breaking the Assise of Bread and Ale forestalling the Markets ingrossing regrating or the like which continue not but which are over assoon as done until done de novo again may be pardon'd like other offences So as the Offender shall not be impleaded for them otherwise than by persons who have receiv'd particular damage which the King cannot remit
the Plaintiff entitle himself to an Advowson as appendant to a Mannor and sheweth a presentment as appendant for so are the words and the Defendant shews another Presentment without that that the Advowson is appendant this Traverse is good for if it be not appendant as the Plaintiff declares it is sufficient to destroy his Declaration and so there both are traversable but otherwise as the Case is here viz. the principal Case first cited I conceive the meaning clearly to be that in the principal case the Seisin in gross of the Advowson alledged in the Declaration was not traversable but the presentation which might be by Vsurpation and made a good Title though the Plaintiff were not seised in gross of the Advowson But if the Plaintiff declare the Advowson to be appendant to a Mannor and withal sets forth in his Declaration the Letters of Presentation to the Church as appendant there the Defendant may traverse either the appendency or the Presentation for though the Advowson were appendant yet if the Plaintiff presented not he had no Title Whence I infer that if the Plaintiff had only counted a Seisin of the Mannor to which the Advowson was appendant without shewing the presentment to be to the Church by vertue of the appendency the traverse of the appendency had not been good but it must have been of the Presentation which might have been by Usurpation notwithstanding the alledging barely of the appendency as is resolved before in the point in the Lord Buckhursts Case in Anderson and in the principal Case of 10 H. 7. But when the Count is of the appendency of the Advowson and also of the Presentation to it as appendant there there could be no Usurpation according to the Resolutions in Sir Henry Gaudies Case in the Lord Hobart before cited and in Greens Case in the 6th Report of the Lord Cook And the not observing of this difference made the Reporter at the end of thâ— L. Buckhursts Case deny this latter part of the Case in 0 H. 7. because it was clearly against the reason of the principal Case in 10 H. 7. and against the Resolution of the L. Buckhursts Case if the words of shewing the presentment to have been as appendant had been omitted in the Case But those words make the latter Case in 10 H. 7. exactly to agree with the Judgments both in Sir Henry Gaudies Case in Hob. and Greens Case in the 6th Rep. 15 H. 6. Fitzh Quare Imped num 77. To the 4 first Cases may be added the Case of 15. H. 6. where the Plaintiff counts in a Quare Impedit that his Ancestor was seised of a Mannor to which the Advowson is appendant and presented and dyed and that the Mannor descended to the Plaintiff and the Church became void whereby he ought to present the Defendant pleads that long after the Presentation alledged by the Plaintiff the Defendant was seised of the Advowson in Fee and presented such a one and after the Church became void and he presented the present Incumbent and this Plea was allowed a good plea by the Court without answering to the appendency alledged by the Plaintiff which was in effect avoided by the Defendants Presentation after And in this Case the Plaintiff was without remedy unless he could traverse the Presentation alledged by the Defendant otherwise than by his Writ of Droit d'Advowson Crook 2. Car. f. 61. Sir Greg. Fenner vers Nicholson Pasfield As also the Case in Crook If the Plaintiff make Title to present as being seised of an Advowson in gross or as appendant and the Defendant make Title as presented by reason of a Simoniacal presentation made by the Plaintiff and thereby a Devolution to present to the King under whom the Defendant claims because the Defendant doth admit the Advowson to be in gross or appendant in the plaintiff and that neither of them is inconsistent with the Title made by the Defendant he shall not traverse the Seisin in gross nor the appendency but because somewhat else is necessary to give the plaintiff right to present that is the vacancy of the Church either by death or resignation or deprivation which the plaintiff must alledg and which are inconsistent with the Defendants Title who claims not by vacancy by death resignation or deprivation but by the Simony therefore he shall traverse the vacancy alledged either by death resignation or deprivation as the Case falls out without one of which the plaintiff makes no Title and if the present vacancy be by either of them the Defendant hath no Title Now to apply these Cases to the question before us whether the Defendant should have traversed the Presentation of the Lord Wootton alledg'd by the plaintiff or the appendency which he hath done to the third Part of the Mannor and third Part of the Rectory of Burton Basset It seems clear That in all Cases of Quare Impedits the Defendant may safely traverse the Presentation alledged in the Plaintiffs Count if the matter of fact will admit him so to do for the Plaintiff hath no Title without alledging a Presentation in himself his Ancestor or those from whom he claims the Advowson but the Defendant must not traverse that is deny the Presentation alledged when there was a Presentation for then the issue must be found against him The Lord Wootton therefore having presented by what right soever it was there was no traversing his Presentation But by what right soever the Lord Wootton presented the Plaintiff hath no right to present unless the Lord Woottons Presentation were by the appendency to the third part of the mannor for he deriving no title to the Advowson as in gross nor any other way but as belonging to the third part of the Mannor which he derives from the Lord Wootton Therefore nothing is traversable by the Defendant but the appendency which if found against the Plaintiff he hath no colour of Title Pasc 19. Car. 2. Rot. 484. C. B. Henry Edes Plaintiff in a Quare Impedit against Walter Bishop of Oxford THat he was and is seised of the Advowson of the Church of Chymer in gross in Fee and thereto presented Will. Paul his Clerk who was instituted and inducted accordingly That after the Church becoming void and so remaining by the death of the said William Paul and it belongs to him to present he is hindred by the Defendant The said Bishop by Protestation saying the Church did not become void by death of the said William Paul pleads that the said Church was full of the said Paul The said W. Paul was created Bishop of Oxford whereby the said Church became void and the right of presentation devolv'd to the King by Prerogative 25 H. 8. c. 21. Then pleads the clause of the Act of 25 H. 8. which impowrs the Archbishop of Canterbury to give faculties and dispensations as the Pope did at large That after and before the Writ purchased Decimo of the King the
it is said The Rent was granted out of the Twenty Acres being the Locus in quo by the Name of all the Grantors Lands and Hereditaments in King's Norton and that a per nomen in that Case is not good The Case of Grey and Chapman was urg'd 43 Eliz. Cro. f. 822. where by Indenture S. one Prudence Cousin let a House and Twenty Acres of Land by the Name of all her Tenements in S. But it was not alledg'd in what Vill the Acres were The Court was of Opinion in Arrest of Judgment that the naming of the Vill in the per nomen was not material Another Case to the same purpose was urg'd of Gay against Cay where a Grant in possession was pleaded 41 Eliz. Cro. f. 662. pl. 10. and not as in Reversion And upon view of the Record the Grantor had granted Tenementa praedicta per nomen of a Mesuage which A. P. held for life where the per nomen was adjudg'd not to make good the Grant The Court is of Opinion notwithstanding these Cases That in the present Case the per nomen is well enough because it is alledg'd the Grantor was seis'd of Two hundred Acres of Land in Kings Norton whereof the locus in quo being Twenty Acres is parcel By reason whereof the Rent being granted out of every parcel of the Two hundred Acres it is well enough to say it was granted out of the Twenty Acres per nomen of all his Lands in Kings Norton because the Twenty Acres are alledg'd to be parcel of all his Lands there being Two hundred Acres But in Chapman's Case It is not alledg'd that the Twenty Acres of Land demis'd were parcel of all the Tenements in S. per nomen of which the Twenty Acres were to pass As for the second Case of Gay it was not possible that Lands granted as in possession should pass per nomen of Land that was in Reversion The second Exception is Because the Clause of Entry and Distress in the Deed upon Oyer of it differs from the Clause of Entry and Distress alledg'd in the Conizance For in the Conizance it is said It should be lawful to Enter and Distrain if the rent were unpaid and behind after any of the Feasts whereon it was due that is at any Feast that should first happen after the death of Anne or Thomas Greaves for the Rent did not commence before But by the Deed If the Rent were behind at any the Feasts the Entry and Distress is made to be lawful for it during the joynt Lives of Anne and Thomas Greaves the Uncle and during their joynt lives it could not be behind for it commenc'd not till one of them were dead Scarplus Handkinson 37 El. Cro. f. 420. words repugnant and sensless to be rejected So as the sense must run That if the Rent were behind it should be lawful to distrain during the joint Lives of Anne and Thomas Greaves which was before it could be behind for it could not be behind till the death of one of them Therefore those words during their joynt natural lives being insensible ought to be rejected For words of known signification but so placed in the Context of a Deed that they make it repugnant and sensless are to be rejected equally with words of no known signification Judgment pro Defendent The Chief Justice delivered the Opinion of the Court. Trin. 16 Car. II. C. B. Rot. 2487. But Adjudg'd Mich. 20 Car. II. Bedell versus Constable BY the Act of 12 Car. 2. cap. 24. It is among other things Enacted That where any person hath or shall have any Child or Children under the Age of One and twenty years and not married at the time of his death It shall and may be lawful to and for the Father of such Child or Children whether born at the time of the decease of the Father or at that time in ventre sa mere or whether such Father be within the Age of One and twenty years or of full Age by his Deed executed in his life time or by his last Will and Testament in writing in the presence of two or more credible Witnesses to dispose of the custody and tuition of such Child or Children for and during such time as he or they shall respectively remain under the Age of One and twenty years or any lesser time to any person or persons in possession or remainder other than Popish Recusants And such disposition of the Custody of such Child or Children made since the Four and twentieth of February 1645. or hereafter to be made shall be good and effectual against all and every person or persons claiming the custody or tuition of such Child or Children as Guardian in Soccage or otherwise And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised as aforesaid shall and may maintain an Action of Ravishment of Ward or Trespass against any person or persons which shall wrongfully take away or detain such Child or Children for the Recovery of such Child or Children and shall and may recover Damages for the same in the said Action for the use and benefit of such Child or Children And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised shall and may take into his or their custody to the use of such Child or Children the profits of all Lands Tenements and Hereditaments of such Child or Children and also the custody tuition and management of the Goods Chattels and personal Estate of such Child or Children till their respective Age of One and twenty years or any lesser time according to such Disposition aforesaid and may bring such Action or Actions in relation thereto as by Law a Guardian in Common Soccage might do By the Will is devised in these words I do bequeath my son Thomas to my Brother Robert Towray of Rickhall to be his Tutor during his Minority Before this Act Tenant in Soccage of Age might have dispos'd his Land by Deed or last Will in trust for his Heir but not the Custody and Tuition of his Heir for the Law gave that to the next of Kinn to whom the Land could not descend But Tenant in Soccage under Age could not dispose the Custody of his Heir nor devise or demise his Land in trust for him in any manner Now by this Statute he may grant the Custody of his Heir but cannot devise or demise his Land in trust for him for any time directly for if he should the devise or demise were as before the Statute as I conceive which is most observable in this Case I say directly he cannot but by a mean and obliquely he may for nominating who shall have the Custody and for what time by a consequent the Land follows as an incident given by the Law to attend the custody not as an Interest devis'd or demis'd
the Statute If the Father under Age should make such a Devise it were absolutely void for the same syllables shall never give the Custody of the Heir by the Father under Age which do not give it by the Father which is of Age. But in both Cases a Devise of the Custody is effectual and there is no reason that the Custody devis'd shall operate into a Lease when a Lease devis'd shall not operate into a Custody which it cannot do If a man devise the Custody of his Heir apparent to J. S. and mentions no time either during his Minority or for any other time this is a good devise of the Custody within the Act if the Heir be under Fourteen at the death of the Father because by the Devise the Modus habendi Custodiam is chang'd only as to the person and left the same it was as to the time But if above Fourteen at the Fathers death then the Devise of the Custody is meerly void for the incertainty For the Act did not intend every Heir should be in Custody until One and twenty Non ut tamdiu sed ne diutius therefore he shall be in this Custody but so long as the Father appoints and if he appoint no time there is no Custody If a man have power to make Leases for any term of years not exceeding One hundred and he demises Land but expresseth no time shall this therefore be a Lease for One hundred years There is no Reason it should be a Lease for the greatest term he could grant more than for the least term he could grant or indeed for any other term under One hundred Therefore it is void for incertainty and the Case is the same for the Custody For if the Father might intend as well any time under that no Reason will enforce that he only intended that And to say he intended the Custody for some time therefore since no other can be it must be for that will hold as well in the Lease and in all other Cases of incertainty If a man devises Ten pounds to his Servant but having many none shall have it for the incertainty It may be demanded If the Father appoint the Custody until the Age of One and twenty and the Guardian dye what shall become of this Custody It determines with the death of the Guardian and is a Condition in Law and the same as if a man grant to a man the Stewardship of his Mannor for Ten years or to be his Bailiff It is implyed by way of Condition if he live so long A Copyholder in Fee surrenders to the Lord Dyer 8 Eliz. f. 251. pl. 90. ad intentionem that the Lord should grant it back to him for term of life the Remainder to his Wife till his Son came to One and twenty Remainder to the Son in tayl Remainder to the Wife for life The Husband died The Lord at his Court granted the Land to the Wife till the Sons full age The Remainders ut supra The Wife marries and dies Intestate The Husband held in the Land The Wives Administrator and to whom the Lord had granted the Land during the Minority of the Son enters upon the Husband This Entry was adjudg'd unlawful because it was the Wives term but otherwise it had been if the Wife had been but a Guardian or next Friend of this Land The like Case is in Hobart Balder and Blackburn f. 285. 17 Jac. If it be insisted That this new Guardian hath the Custody not only of the Lands descended or left by the Father but of all Lands and Goods any way acquir'd or purchas'd by the Infant which the Guardian in Soccage had not That alters not the Case for if he were Guardian in Soccage without that particular power given by the Statute he is equally Guardian in Soccage with it and is no more than if the Statute had appointed Guardian in Soccage to have care of all the Estate of the Infant however he came by it Besides that proves directly that this new Guardian doth not derive his interest from the Father but from the Law for the Father could never give him power or interest of or in that which was never his The Court was divided viz. The Chief Justice and Justice Wylde for the Plaintiff Justice Tyrrell and Justice Archer for the Defendant Hill 19 20 Car. II. C. B. Rot. 506. Holden versus Smallbrooke IN Trover and Conversion and not Guilty pleaded Robinson the Iury gave a Special Verdict to this Effect That Doctor Mallory Prebendary of the Prebend of Wolvey founded in the Cathedral of Litchfield seis'd of the said Prebend and one Messuage one Barn and the Glebe appertaining thereto and of the Tithes of Wolvey in right of his Prebend 22 April 13 Car. 2. by Indenture demised to Giles Astly and his Assigns the said Prebend together with all Houses Barns Tenements Glebe Lands and Tithes thereto belonging for three Lives under the ancient Rent of Five pounds ten shillings Astly being one of the Lives died seis'd of the Premisses at whose death one Taverner was Tenant for one year not ended of the Demise of Astly of the Messuage Barn and Glebe Lands and in possession of them whereupon the Plaintiff entred into the Messuage and Glebe and was in the possession of the same and of the Tithes as Occupant And afterwards Frances Astly the Relict of the said Giles Astly enters upon the Messuage and claims the same as Occupant in haec verba Frances Astly Widow of Giles Astly enters upon the House and claims the same with the Glebe and Tithe as Occupant Taverner attorns to Frances Astly and afterwards grants and assigns all his Estate in the Premisses to the Plaintiff afterwards Conquest the Husband of Frances Astly took one Sheaf of Corn in the name of all the Tithes and afterwards demised the Tithes to the Defendant The Tithes are set forth and the Defendant took them whereupon the Plaintiff brought this Action Before I deliver my Opinion concerning the particular Questions before open'd arising upon this Record I shall say somewhat shortly of Natural Occupancy and Civil Occupancy First opening what I mean by those terms then briefly shewing their difference as far only as is material to the Questions now before me I call Natural Occupancy the possession either of such natural things as are immoveable fixt and permanent as Land a Pool River Sea for a Sea is capable of Occupancy and Dominion naturally as well as Land and hath naturally been in Occupancy as is demonstrated in Mr. Selden's Mare Clausum at large which lye unpossess'd and in which no other hath prior right Or of things natural and moveable either animate as a Horse a Cow a Sheep and the like without number or Inanimate as Gold precious Stones Grain Hony Fruit Flesh and the like numberless also wherein no man until the possession thereof by Occupancy had any other right than every man had which is
Act of Parliament of England no more than Wales Gernsey Jersey Barwick the English Plantations all which are Dominions belonging to the Realm of England though not within the Territorial Dominion or Realm of England but follow it and are a part of its Royalty Thirdly That distinct Kingdoms cannot be united but by mutual Acts of Parliament True if they be Kingdoms sui Juris and independent upon each other as England and Scotland cannot be united but by reciprocal Acts of Parliament So upon the Peace made after Edward the Third's war with France Gascoign Guien Calais were united and annext to the Crown of England by the Parliaments of both Nations which is a secret piece of Story and mistaken by Sir Edward Coke who took it as a part of the Conquest of France and by no other Title But Wales after the Conquest of it by Edward the First was annext to England Jure Proprietatis 12 Ed. 1. by the Statute of Ruthland only and after more really by 27 H. 8. 34. but at first received Laws from England as Ireland did but not proceeded by Writs out of the English Chancery but had a Chancery of his own as Ireland hath was not bound by the Laws of England unnamed until 27 H. 8. no more than Ireland now is Ireland in nothing differs from it but in having a Parliament Gratiâ Regis subject to the Parliament of England it might have had so if the King pleas'd but it was annext to England None doubts Ireland as conquer'd as it and as much subject to the Parliament of England if it please The Court was divided viz. The Chief Justice and Tyrrell for the Plaintiff Wylde and Archer for the Defendant Trin. 25 Car. II. C. B. Rot. 1488. Thomas Hill and Sarah his Wife are Plaintiffs Thomas Good Surrogat of Sir Timothy Baldwyn Knight Doctor of Laws and Official of the Reverend Father in God Herbert Bishop of Hereford is Defendant In a Prohibition THE Plaintiffs who prosecute as well for the King as themselves set forth That all Pleas and Civil Transactions and the Exposition and Construction of all Statutes and all Penalties for the breach of them pertain only to the King and his Crown Then set forth the time of making the Act of 32 H. 8. c. 38. and the Act it self at large and that thereby it was enacted That from the time limited by the Act no Reservation or Prohibition Gods Law excepted should trouble or impeach any marriage without the Levitical Degrees And that no person shall be admitted after the time limited by the Act in any the Spiritual Courts within this Kingdom to any Process Plea or Allegation contrary to the Act. They set forth That after the making of the said Act and the time thereby limited the Plaintiffs being lawful persons to contract marriage and not prohibited by Gods Law and being persons without the Levitical Degrees the Twentieth day of September in the Four and twentieth year of the King at Lemster in the County of Hereford contracted matrimony in the face of the Church and the same consummated and solemninized with carnal knowledge and fruit of Children at Lemster aforesaid That by reason thereof the said Marriage is good and lawful and ought not to be null'd in Court Christian That notwithstanding the Defendant praemissorum non ignarus fraudulently intending to grieve and oppress the Plaintiffs unduly draws them into question before him in the Court Christian for an unlawful marriage as made within the Degrees prohibited by Gods Laws and there falso caute subdole libelling and supposing that whereas by the Laws and Canons Ecclesiastical of this Kingdom it is ordained That none should contract matrimony within the Degrees prohibited by Gods Law and expressed in a certain Table set forth by Publique Authority Anno 1563. and that all marriages so contracted should be esteemed incestuous and unlawful and therefore should be dissolved as void from the beginning And also That whereas by a certain Act of Parliament made and published in the Eight and twentieth year of King Henry the Eighth It is enacted That no person or persons subject or residing within the Realm of England or within the Kings Dominions should marry within the Degrees recited in the said Act upon any pretence whatsoever And That whereas the said Thomas Hill had taken to wife one Elizabeth Clark and for several years cohabited with her as man and wife and had carnal kdowledge of her He the said Thomas notwithstanding after the death of the said Elizabeth had married with and took to wife the said Sarah being the natural and lawful Sister of the said Elizabeth against the form of the said last mentioned Statute and them the said Thomas and Sarah had caus'd unjustly to appear before him in Court Christian to Answer touching the Premisses although the said marriage be lawful and according to Gods Law and without the Levitical Degrees And That although the Plaintiffs have for their discharge in the said Court Christian pleaded the said first recited Act yet the Defendant refuseth to admit the same but proceeds against them as for an incestuous marriage against the form of the Statute And that notwithstanding he was served with the Kings Writ of Prohibition to desist in that behalf in contempt of the King and to the Plaintiffs damage of One hundred pounds The Defendant denies any prosecution of the Plaintiffs contrary to the Kings Writ of Prohibition and thereupon Issue is joyn'd and demurrs upon the matter of the Declaration and prays a Consultation and the Plaintiffs joyn in Demurrer In the Argument upon Harrisons Case I said and still say That if granting Prohibitions to the Spiritual Courts in Cases of Matrimony were res integra now I saw no reason why we should grant them in any Case The matter being wholly of Ecclesiastick Conizance my Reasons were and are 1. Because in all times some marriages were lawful and others prohibited by Divine and Ecclesiastick Laws or Canons yet the Temporal Courts could not prohibit the impeaching of any marriage how lawful soever nor take notice of it 2. If by Act of Parliament anciently all marriages not prohibited by Gods Law or Canons of the Church had been declared lawful the Temporal Courts thereby had no power to prohibit the questioning of any marriage more than before for it had said no more than what the Law was and did say before such Act. So had it been enacted That all marriages should be lawful not prohibited by the Levitical Law the Church had retain'd the judging which were against the Levitical Law as they did when the unlawfulness was not confin'd only to the Levitical Law And the Question now concerning what are the Levitical Degrees whereof we assume the Conizance is but the same as the question would be concerning what marriages were prohibited in the Eighteenth of Leviticus For though such Acts of Parliaments had been yet they had given no new Iurisdiction or
said William Paul dyed at Oxford That after his death the Defendant was elected Bishop of Oxford and after and before the Writ purchased viz. the 27. of November 1665. Gilbert now Archbishop of Canterbury and Primate of all England by his Letters of Dispensation according to the said Act and directed to the said Walter the Defendant now Bishop under his Seal then elect and upon the Bishops petition of the means of his Bishoprick Graciously dispensed with him together with his Bishoprick the Rectory of Whitney in the Diocess and County of Oxford which he then enjoyed and the Rectory of Chymer aforesaid which he by the Kings favour hoped shortly to have to receive hold retain and possess in Commendam as long as he lived and continued Bishop of Oxford with or without Institution and Induction or other solemnity Canonical and to take and receive the profits to his own use without Residence Quantum in eodem Archiepiscopo fuit jura regni paterentur The Letters of Dispensation not to be effectual without the Kings Confirmation That the King after the 28 of Novemb. 17. of his Reign under the great Seal to the said Church so void by Cession presented the Defendant then as aforesaid Bishop Elect and after that is the 28. of Novemb. 17. Car. 2. the King by his Letters Patents under the great Seal dated the same day and year and duly inrolled in the Chancery according to 25 H. 8. did confirm the Letters of Dispensation and that the said Bishop might enjoy all things contained in them according to the form and effect thereof with clauses of non obstante aliquo Statuto or other matter Then averrs that the cause of Dispensation was not contrary to the word of God and that the Pope in H. 8. time did use to grant the like Dispensations to the Kings Subjects which he is ready to averr c. The Plaintiff replys That true it is William Paul Praedict was elected Bishop of Oxford being Incumbent of Chymer but that after his election and before his creation he 2 Decemb. 1663. obtained Letters of the Archbishop under his seal of Faculties for causes therein mentioned of Dispensation to hold the Church of Brightwell and the Rectory of Chymer both which he then lawfully had and to retain the same with his Bishoprick after his consecration c. durant vita sua natural Incumbentiâ suâ in Episcopatu praedict quamdiu eidem Episcopatui praeesset The King 9. Decemb. 15. of his reign confirmed the Letters Patents under the great Seal with non obstante according to the Ordinary form 30. Decemb. 15. Car. 2. was created Bishop Vpon this Replication the Defendant demurs and the Plaintiff joyns in Demurrer Note the Defendant doth not shew to whom he was presented He doth not say that he enter'd by vertue of the Presentation of the King in Chymer In discussing the Case as it appears upon this Record I take it granted 1. If a person Incumbent of one or more Benefices with Cure be consecrated Bishop all his benefices are ipso facto void 2. Vpon such voidance the King and not the Patron is to present to the benefices so void by Cession 3. That any Dispensation after the Consecration comes too late to prevent the Voidance 4. That the Pope could formerly and the Arch-bishop now can sufficiently dispense for a Plurality by 25 H. 8. I shall therefore first make one general Question upon the Case as it appears Whither William Paul Rector of Chymer and elected Bishop of Oxford and before his Consecration dispensed with by the Archbishop to retain his said Rectory with the Bishoprick and having the said Letters of Dispensation confirmed by the King and inroll'd Modo forma prout by the Record did not by virtue of the said Dispensation and Confirmation prevent the voidance of his said Rectory by Cession upon his Consecration For if he did the Rectory became not void until his death and by his death the Plaintiff being Patron hath right to present To determine the General Question I shall make these Questions as arising out of it 1. Whether any Dispensation as this Case is be effectual to prevent an avoidance after Consecration 2. Whether the Archbishop hath power with the King's Confirmation to grant such a Dispensation 3. Whether this Dispensation in particular be sufficient to prevent a voidance of Chymer after Consecration of the late William Paul 1. This Case differs from the Bishop of Ossory's Case in Sir J. Davies's Reports who had a faculty accipere in Commendam with odd power and executed it by collating himself into a Living void by Lapse 2. It varies from the Case of Colt and Glover in the Lord Hobarts Reports and the Dispensation there to the Bishop elect of Lichfield and Coventry which was to retain one Benefice which he had and propria authoritate capere apprendere as many as he could under a certain value The defects of that Dispensation are numerous and excellently handled by the Lord Hobart in that Case of Colt and Glover But in our Case there is no affinity with the defects of those Dispensations but is barely to retain what legally was had before Obj. 1 Per Thyrning The Bp. of St. Davids Case 11 H. 4. f. 37. b. 38. a. Rolls f. 358. ob 1. 11 H. 4. f. 60. B. per Hill An Incumbent of a Church with cure being consecrated Bishop his Living was void by the Law of the Land therefore the Pope could not prevent the voidance after consecration for then the Pope could change the Law of the Land and if the Pope could not the Archbishop cannot The better opinion of that Book 11 H. 4. is contrary and Answ 1 so agreed to be in the Irish Case of Commendams and Rolls his opinion is grounded only upon 11 H. 4. If an Incumbent with cure take another Benefice with cure the first is void by the Law of the Land and the Patron hath right to present therefore the Pope could not grant a Dispensation nor the Arch-bishop now can to hold a Plurality for that were to alter the Law of the Land and to prejudice the Patron But the Law was and is otherwise therefore that reason concludes not in the case of a Bishop A second reason in that case of 11 H. 4. is that such a Dispensation Obj. 2 cannot prevent the avoidance 11 H. 4. f. 59. bi per Skreen because there is no use of it until Consecration for before the Incumbent retains his Living without any Dispensation and when consecrated his Benefices are void and then it is too late to dispense as is agreed This reason is as effectual against a Dispensation for a Plurality Answ 2 for before a man takes a second Living there can be no use of it and after by this reason it comes too late for the Patron hath right to present It was in that great Case endeavoured to avoid the pressure of