receive the Allegations and Matters given in Evidence for the Plaintiff as sufficient to maintain his Title whereas they were given in Evidence and considered and if it be meant as a sufficient Evidence to controul and over-rule all other that doth not belong to the Court in Trials to determine unless referred to them upon demurrer to Evidence but is the proper business of the Jury and if the Party be aggrieved the Remedy is an Attaint Nor can it be pretended that the Defendants Evidence was admitted to over-rule the Record produced because no Objection was made to the Defendants Evidence at the Trial and the same was all given before the Record of 15 Ed. 3. was produced and consequently the Jury must consider the force of it for Evidence on both sides being given by the Law of England the Decision of the Right belongs to the Jury and the Act of Edw. 3. being repealed 't is no Matter of Law but the most which could be made of it was that it was Evidence which must be left to the Jury together with the Defendants Evidence But no Bill of Exception will lye in such a Case by the Statute when the Evidence given is admitted as Evidence and left to a Jury and where no Opposition was made to the Defendants Evidence as here in this Case and therefore in this Case a Bill of Exception could not be warrantable because the Plaintiff's Evidence was not refused or over-ruled nor was the Defendant's Evidence fit to be rejected or so much as opposed by the Plaintiff And as to the Allegations made by the Counsel and not proved those never could be an Exception And for these and other Reasons the Judges refused to Seal their Bill Upon this a Writ of Error is brought and a Petition was exhibited to the Lords Spiritual and Temporal in Parliament assembled in the Name of the Lady Isabella Dutchess of Grafton and William Bridgman her Trustee showing that King Charles the Second granted the Office in question to W. B. for the Lives of Henry Earl of Arlington Henry Duke of Grafton and of the Petitioner the Lady Isabella in Trust for the Duke his Executors and Administrators to commence after the Death of Sir Robert Henly that upon the death of Sir Robert Henly the Petitioner by virtue of the said Grant was well intituled to the said Office but was interrupted in receiving the Profits by Rowland Holt Esq Brother to the Lord Chief Justice Holt and by Edward Coleman Gent. who pretended to be admitted thereto by some Grant from the Chief Justice that thereupon an Assize was brought for the said Office which came to Trial and the Petitioners Counsel insisted upon an Act of Parliament proving the King to have the Right of granting the said Office which the Judges would not admit to be sufficient to prove the King's Right to grant the same That the Petitioners Counsel did thereupon pray the benefit of a Bill therein to be allowed and sealed by the Judges according to Law And the Petitioner's Counsel relying upon the said Act of Parliament as sufficient proof of the King 's Right duly tendred a Bill of Exceptions before Judgment in the Assize which the Judges upon the Trial said they would Seal yet when tendred to them in Court before Judgment would not Seal the same Thereupon Judgment was entred against the Petitioners Title in the Assize by default of the Judges not allowing and sealing the said Bill according to the Duty of their Office by Law whereby they are hindred from making the Matter of the said Bill part of the Record of the said Judgment now brought and depending before your Lordships upon a Writ of Error in Parliament for reversing the said Judgment in the Assize and so are precluded from having the full benefit of the Law by the said Writ of Error to examine reverse and annul the said Judgment Wherefore the Petitioners prayed that their Lordships would be pleased to order the said Judges or some of them to Seal the said Bill of Exceptions to the end the said Case might as by Law it ought come intirely before their Lordships for Judgment c. Upon reading this Petition 't was ordered that the Lord Chief Justice and the rest of the Judges of the Court of King's Bench should have Copies of the Petition and put in their Answer thereunto in Writing on ..... next At the Day appointed there was deliver'd an Answer in these or the like words The Answer of William Dolben William Gregory and Giles Eyre Knights three of their Majesties Justices assigned to hold Pleas in their Court of King's Bench at Westminster to the Petition of the most noble Isabella Dutchess of Grafton and William Bridgman exhibited by them to your Lordships THese Respondents by Protestation not owning or allowing any of the Matters of the Petition to be true as they are therein alledged and saving to themselves the benefit of all the several Statutes herein after mentioned and all the Right they have as Members of the Body of the Commons of England to defend themselves upon any Trial that may be brought against them for any thing done contrary to their Duty as Judges according to the due Course of the Common Law which Right they hold themselves obliged to insist upon in answer to the said Petition think themselves bound to shew and offer to your Lordships consideration That the Petition is a Complaint against them for refusing to Seal a pretended Bill of Exceptions contrary to a Statute in that behalf as the Petition pretends without setting forth the tenour of the said Statute or what that pretended Bill was whereas that Statute is the Statute of Westminster 2. cap. 31. and doth enact That if any impleaded before any Justices doth offer an Exception and pray the Justices to allow the same and they refuse so to do the Party offering the Exception is thereby to write it and pray the Justices to Seal it which they or one of them are thereby enjoyned to do So that if the pretended Bill was duly tendred to these Respondents and was such as they were bound to Seal these Respondents are answerable only for it by the Course of the Common Law in an Action to be brought on that Statute which ought to be tried by a Jury of Twelve honest and lawful Men of England by the Course of the Common Law and not in any other manner And the Respondents further shew and humbly offer to your Lordships consideration That the Petition is a Complaint in the nature of an Original Suit charging those Respondents with a Crime of a very high Nature in acting contrary to the Duty of their Office and so altogether improper for your Lordships Examination or Consideration not being any more triable by your Lordships then every Information or Action for breach of any Statute Law is all which Matters are by the Common Law and Justice of the Land of Common Right to be
Clerk who was inducted and afterwards died and the Church being so void the Defendant presented one Scroop his Clerk absque hoc quod praed ' nuper Rex Car. 1. obiit seisitus of the Advowson aforesaid in manner and form as the Attorney hath declared Et hoc paratus est c. unde petit jud ' et breve Episcopo c. Scroop pleads the same Plea mutatis mutandis The Attorney General craves Oyer of the Letters Patents produced in Court and they are read to him and are to this effect They recite That Queen Elizabeth had by her Letters Patents Anno 13. Regni sui granted to then Earl of Warwick all those Mannors of Bedall and Ascough c. and all Advowsons and Rights of Patronage thereunto belonging c. rendring a Rent and that Jac. 1. had granted the Rent to Sir Christopher Hatton et al' and that the said Mannors and Rents by good Conveyances in the Law had come to Sir William Theckston Knight and that he then had and held the same to him and his Heirs then 't is Know ye That we for divers good Causes and Considerations and of special Grace c. do ratifie and confirm to him the said William Theckston and his Heirs c. all those c. then it follows That whereas the said William Theckston by Virtue of the said Letters Patents made to the said Earl of Warwick and lawful Conveyance of the Premisses to himself made doth claim to have the Advowson of the Church of Bedall aforesaid according to the Tenour and Intent of the said Letters Patents and whereas he the said King Car. 1. upon the Death of one John Petty had by lapse presented Wilson and after his Death the said Theckston claiming the Right of Presentation the said King ad dictam Ecclestam sic vacantem ut ad presentatioâ—em snam pleno jure spectant had presented Dr. Wickham and that the said Theckston to recover his Right had brought his Writ of Quare Impedit upon which Issue was joyned That afterwards it was agreed between Theckston and Wickham that Wickham should enjoy it during his Life and that Theckston and his Heirs should have it quietly for ever after prout ex informatione dicti Wickham nostri Capellani in ordinario accepimus Nos igitur volentes That the said Presentations of the said Wilson and Wickham or either of them or their or either of their Institution and Induction should not hurt the said Theckston's lawful Right of presenting to the said Church for the future and it is our further Intention That the said William Theckston his Heirs and Assigns shall freely and peaceably have and enjoy the said Advowson of the said Church of Bedall according to the Tenour and true Intent of the said Letters Patents granted by the said Queen to the said Ambrose Earl of Warwick any Defect or Defects in the same Letters Patents notwithstanding And then follows the Grant it self in these Words Sciatis igitur quod nos ex uberiori et speciali gratia nostra c. Know ye therefore That we of our more abundant and special Grace and of our certain Knowledge and meet Motion have given and granted and do by these presents for our selves our Heirs and Successors give and grant to the aforesaid William Theckston the Advowson Donation free Disposition and Right of Patronage of the aforesaid Church of Bedall and all our Right Estate Title Interest and claim whatsoever of presenting to the said Church whensoever or howsoever it shall become void Quibus lectis anditis the Attorney General demurrs and the Defendant joyns and Judgment in C. B. pro Domino Rege upon this Reason only that this Grant was void the Advowson being in gross and nothing was intended to pass but an Advowson Appendant and so the King was deceived and upon a Writ of Error in B. R. the Judgment was affirmed upon another point viz. That the Grant pleaded was to William Theckston then Esq and afterwards Knight and the Grant set forth upon Oyer was to William Theckston Knight and there were Three Judges of Opinion with the Patent and one only against it and one Judge of Opinion with the Plaintiff in the Error as to both the Validity of the Patent it self and the Identity of the Person named in the Plea and Patent And now it was argued for the Plaintiffs in the Writ of Error That this Judgment was erroneous and first it was answered to the Objection of the Variance between Knight and Esq and it was said That in case of a Title of Worship the want of it could never viciate a Grant that even in Indictments upon the Statute of Additions a Gentleman may be called Esquire and so e ' contra and thus is 2 Iust that here constat de persono there 's nothing doth appear to shew them to be different that in case of Feoffments this Pretence will not hurt because the Person is ascertained and here 't is likewise the same it is William Theckston then Esq and afterwards Knight 't is but one Man they are two different Affirmations concerning the same Person that in the Case cited on the other side of the Earl of Pembroke in Jones's Rep. and in 1 Cro. 173. and Littlet 191.223 Richardson and Hutton are of Opinion That such Grant is good then 't was said That 't would be very hard to intend them several Persons in order to avoid a Grant that Veritas nominis tollit Erroreâ—â— demonstrationis Persone that he was William Theckston that if it had been said concessit Wilielmo Theckston generally that would have been sufficient and his being an Esq doth not exclude his being a Knight so that 't is not a false Description 25 Edw. 3.19 a Writ was abated because shewn that they were two Persons but held that if it had appeared that they had been but one 't would have been well Then was cited the Major of Lynnes Case 10 Rep. 126. 'T is true this is a Name or Title of Dignity to some purposes but not to all It must be agreed to be so upon Originals and Indictments and there is a very good reason for it because in that Case a greater Certainty is required that one Man may not suffer for or instead of another but in Case of Grants any Description of the Person is sufficient besides if a Name be mistaken in a Writ or Indictment another may be sued or preferred by the true Name but a Man cannot of common Right demand a new Grant tho' this be a Grant from the Crown 't is the same case for the King's Grant shall be taken most beneficially for the Support of his Honour 6 Rep. 6. that here 's no COlour to pretend two William Theckstons Then it was said That this at most was only an Addition of Enlargement to his Name not parcel of the Name it self for no more goes to that than Christian and Sirname then 't was said 't
the Sentence given by the Constable and Marshal in the Suit before them concerning a Coat of Arms Rot. Claus 12 Rich. 2. m. 4. Appeal by Bond vers Singleton 't is in a Cause of Arms in our Court before our Constable and Marshal wherein Sentence was given by them 1 pars Pat. 17 Rich. 2. m. 12. Thus it appears by a Commission for the Execution of the Office of Constable of England Committimus vobis officium hujusmodi Constabularii ad querelam Thome Moor in hac parte una cum Edmundo de Mortimore Mareschallo Anglie audiendum secunda pars Patent ' 48 Edw. 3. m. 20. in dorso As also by a Claim at the Coronation of H. 5. before Beauchamp Earl of Warwick then Lord Steward John Mowbray Earl Marshal Son to the then Duke of Norfolk claimed under a Grant in 20th of Rich. 2. of the Office of Earl Marshal of England to hold Court with the Constable and to hold Pleas before them and Copies of these Precedents were said to have been ready in Court Further to prove the joynt Authority were cited several of our Old Books 48 Edw. 3. fol. 3. in a Case of Debt upon an Indenture by which P. was retained by the Defendant with two Squires of Arms for the War in France Belknapp said of such Matter this Court cannot have conusance but 't is triable before the Constable and Marshal In the Case of Pountney and Bourney 13 Hen. 4.4 the Court of King's Bench call it the Court of the Constable and Marshal And in 37 Hen. 6.3 upon another occasion Prisot said this Matter belongs to the Constable and Marshal And Coke 4 Inst 123. says that they are both Judges of the Court and that the Constable sometimes gave Sentence is no Argument that the Marshal was no Judge with him it only proves him the Chief who in most Courts doth usually give the Rule Nor is the Earl Marshal's receiving Writs from the Constable to execute his Commands any Argument that he sits there only as a Ministerial Officer and not as a Judge for he may be both as in many Corporations Mayors are Judges of the Court and yet have the Custody of their Goals too and so have the Sheriffs of London their Compters tho' they strictly are Judges of their several Courts 2. During the Vacancy of the Earl Marshal's Office the Constable alone had the Judicature as in 11 Hen. 7. on Holy-rood-day the Earl of Darby being then Constable of England sate and gave Judgment alone in a Cause between Sir Thomas Ashton and Sir Piers Leigh upon a Coat of Arms but this needs no Proof since 't is contended on the other side that the Court doth belong only to the Constable 3. 'T was argued that the Earl Marshal hath set alone and given Judgment and to prove that it was said this Court was held when there was no Constable before Thomas Howard Duke of Norfolk Lord High Treasurer and Earl Marshal of England who Died 16 Hen. VIII and next after him before Charles Brandon Duke of Suffolk then Earl Marshal who Died 37 Hen. VIII after him the Court was held and Sentences given by Thomas Howard Duke of Norfolk who Died in 1512. and after him in the 30 Eliz. the Earl of Essex sat as Earl Marshal and heard and determined Causes judicially and the chief Judge sat then as Assistant with him in Court and then after the Death of the Earl of Essex it was in Commission to my Lord Treasurer Burleigh and others and then the great Oase of Sir F. Mitchell was heard and determined at which several Judges assisted and the Sentence of degradation was executed upon him 26. April 1621. and then was Cited the Case of Pool and Redhead 12 Jac. 1.1 Roll's Rep. 87. where 't was held that the proper remedy for Fees of Knighthood was to sue to the Earl Marshal and Coke says in the same Case the Common-Law does not give remedy for precedency but it belongs to the Earl Marshal And since that in Parker's Case which was 20 Car. II. Syd 353. the Earl Marshal was agreed to have the absolute determination of matters of Honour in the Court of Chivalry as much as the Chancellor hath in matters of Equity And the Error on the other side was occasioned by not distinguishing between the Ancient Jurisdiction of this great Court at the Common-Law and the Jurisdiction given to the Constable and Marshal under those names by Statute for the latter cannot be executed by one alone and that distinction answers the Authority in 1 Inst 74. which grounded the mistake that there is no Court of Chivalry because there 's no Constable whereas the reason why in Sir Francis Drake's Case the not constituting of a Constable silenced the Appeal was from the 1 Hen. IV. Cap. 14. which orders all Appeals of Murder committed beyond Sea to be before the Constable and Marshal by name But the Ancient Jurisdiction of this Court by prescription wherein both the Constable and Marshal were Judges severally or together and which each of them did and could hold alone remains still as much in the Earl Marshal alone as it ever was in him and the Constable Then it was argued that no Prohibition lay to this Court because none had ever been granted and yet greater occasions then now can be pretended by reason of the large Jurisdiction which this Court did in Ancient time exercise many Petitions were frequently preferred in Parliament Complaining of the Incroachments of this Court in Edw. I. Edw. III. Rich. II. Hen. IV. and Hen. VIth's time as appears in 4 Inst. 125. 2 Hen. IV. num 79. and 99. 1 Roll's Abridg. 527. and yet no Prohibition granted or moved for which according to Littleton's Text is a very strong Argument that it doth not lie The Statute of 13 Rich. II. 2. is an Argument against it because after several Complaints of the Incroachments of this Court another remedy is given which had been needless if this had been legal nay it shews the Opinion of the Parliament that there was no other way of relief and soon after the making of this Statute in the same Reign two Privy Seals were sued upon it in the Case of Poultney and Bourney 13 Hen. IV. 4. 5. Besides this might be grounded on the Antiquity and greatness of this Court for as to the subject matter of it 't is by Prescription a Court for determining matters of Honour to preserve the distinction of degrees and quality of which no other Courts have Jurisdiction and the right and property in Honours and Arms is as necessary to be preserved in a Civil Government as that in Lands or Goods Then 't was urged that this Court hath Jurisdiction even of Capital Offences its extent is large 't is throughout the Realm even in Counties Palatine even beyond the Seas its manner of proceeding is different in a Summary way by Petition its trial of Fact may be by Duel as is 4
Disorder and most Proceedings informal and in the English Tongue in such a mean Court where are few Precedents to guide them where the Parties themselves are not empowered to draw up their own Proceedings as here above but the whole is left to the Steward who is a Stranger to the Person concerned and therefore 't is hard and unreasonable that Mens Purchases should be prejudiced by the Ignorance Unskilfulness or Dishonesty of a Steward or his Clerks that there is scarce one Customary Recovery in England which is exactly agreeable to the Rules of the Common Law that the questioning of this may in consequence endanger multitudes of Titles which have been honestly purchased especially since there can be no aid from the Statutes of Jeofailes for they do not extend to Courts Baron 'T was further urged That there was no Precedent to enforce Lords of Mannors to do as this Bill desired that the Lords of Mannors are the ultimate Judges of the Regularity or Errours in such Proceedings that there 's no Equity in the Prayer of this Plaintiff that if the Lord had received such Petition and were about to proceed to the Reversal of such Recovery Equity ought then to interpose and quiet the Possession under those Recoveries That Chancery ought rather to supply a Defect in a Common Conveyance if any shall happen and decree the Execution of what each Party meant and intended by it much rather than to assist the annulling of a Solemn Agreement executed according to Usage tho' not strictly conformable to the Rules of Law For which Reasons it was prayed that that Appeal might be dismissed and the Dismission below confirmed and ' was accordingly adjudged so The Countess of Radnor versus Vandebendy al. APpeal from a Decree of Dismission in Chancery the Case was to this effect The Earl of Warwick upon Marriage of his Son settles part of his Estate upon his Lady for a Jointure and after failure of Issue Male limits a Term for 99 years to Trustees to be disposed of by the Earl either by Deed or Will And for want of such Appointment then in trust for the next in Remainder and then limited the whole Estate in such manner as that a third part of a Moiety thereof came to the Lord Bodmyn the Appellants late Husband in Tail general with the Reversion in Fee to the Earl and his Heirs The Son died without Issue the Earl by his Will appoints the Lands to his Countess for so many years of the Term as she should live and to her Executors for one year after her Death and charges the Term with several Annuities some of which remain in being The Respondent's Father purchased part of these Lands from the Lord Bodmyn after his Marriage and had the Term assigned to him The Lord Bodmyn dyes the Appellant brings her Writ of Dower in C. B. the Respondent pleads the Term for 99 years and she Exhibits her Bill praying that she may after the discharge of the Earls Incumbrances have the benefit of the Trust as to a third of the Profits of this Term and upon hearing the Cause the Lord Chancellor saw no cause to give Relief but dismissed her Bill There were many Particulars in the Case and many Proceedings before both in Law and Equity but this was the whole Case as to the general Question Whether a Tenant in Dower shall have the benefit of the Trust of a Term which is ordered to attend the Inheritance against a Purchaser after the Marriage The Lord Chancellor Jeffryes had been of opinion with the Appellant but the Cause coming to be heard again a Dismission was decreed and now it was argued against the Decree on behalf of the Appellant that Equity did entitle her to the Thirds of this Term that a Tenant by the Curtesie is intitled to it and br the same reason a Tenant in Dower that the Term created by the Settlement was to attend all the Estates limited by that Settlement and in Trust for such Persons as should claim under it which the Appellant doth as well as the Respondents that it was in consequence to attend all the particular Estates carved or derived from the others the Term was never in its creation designed for this purpose to prevent or protect against Dower that in the Case of Snell and Clay the Tenant in Dower had it in Chancery against the Heir at Law and that this was the same Case a Purchaser with notice of that Incumbrance of Dower the Vendor being then married this was an Estate of which the Husband was full Owner and received the whole Profits that in proportion 't is as much a Trust for her for her Thirds during Life as it is a Trust for the Respondents for the Inheritance she claims under her Husband who had the benefit of the whole Trust If there be a Mortgage by an Ancecestor upon the whole Eqinty will permit her to redeem paying her proportion according to the value of her Thirds for Life and the same reason holds in this Case and there 's no Precedent in Equity to the contrary And many Precedents in favour of Tenant in Dower were cited and much Reason well urged from parallel Cases to entitle the Lady to her proportion of the Trust of this Term. On the other side 'T was said that Dower is an Interest or Right at the Common Law only that no Title can be maintained to have Dower but where the Common Law gives it and that is only to have the Thirds of that which the Husband was seized of and if a Term were in being no Feme was ever let in but after the determination of that Term that this is the first pretence set up for a Dower in Equity the Right is only to the Thirds of the Rent reserved upon any Term and 't is a new thing to affirm that there shall be one sort of Dower at Law and another in Chancery that 't is and always hath been the common received Opinion of Westminster-hall and of all Conveyancers that a Term or Statute prevents Dower that if a Purchaser can procure it the same becomes his Defence that this is what the Wisdom of our Forefathers thought fit to use and tho' some Mens reasoning may render it in appearance as absurd yet the consequence of an alteration will be much more dangerous than the continuance of the old Rules that tho' this Lady's Case be unfortunate yet the multitude of Purchasors who have bought upon full consideration and have been advised and still conceive themselves safe under this Law will be more unfortunate if the Law be broken Then ' was argued That there could be no Equity in this Case for it must be not only from the Party Appellant but also against the Respondent and that 't is not because he bought the whole Her Portion her Quality and her being a Wife create no Equity as to the Purchaser 't would perhaps be prevalent against an Heir but
good for them and that they had the like Power of Appeals Writs of Error and Impeachments c. and that the Cognizance of such Appeals in England would produce great inconveniencies by making poor people to attend here whereas they might with less trouble and expence have Justice at home that this did agree with the reasons of that Ancient Statute 4 Inst 356. that persons having Estates in Ireland should Reside in that Kingdom else half of their Estates should go to maintain the Forts there That this practice of receiving Appeals here would be vexatious to the people of that place and that no Court could have Jurisdiction but by grant or prescription and that there could be no pretence for either in this place Then was it ordered in these or the like Words Whereas a Petition and Appeal was offered to the House the Day of last from the Society of the Governour and Assistants London of the New Plantation in Ulster in the Kingdom of Ireland against a Judgment given by the Lords Spiritual and Temporal of Ireland in Parliament there Assembled on the day of last upon the Petition and Appeal of William Lord Bishop of Derry against the Decree or Orders made in the said Cause in the Court of Chancery there Whereupon a Committee was appointed to consider of the proper method of Appealing from Decrees made in the Court of Chancery in Ireland and that pursuant to the Orders of the said Committee and a Letter sent to the Lords Justices of Ireland by Order of this House several precedents have been transmitted to this House by the said Lord Justices Copies whereof were ordered to be delivered to either side After hearing Counsel upon the Petition of the said Society of London presented to this House praying that they might be heard as to the Jurisdiction of the House of Lords in Ireland in receiving and judging Appeals from the Chancery there as also Counsel for the Bishop of Derry after due Consideration of the Precedents and of what was offered by Counsel thereupon It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament Assembled That the said Appeal of the Bishop of Derry to the House of Lords in Ireland from the Decree or Orders of the Court of Chancery there made in the Cause wherein the said Bishop of Derry was Plaintiff and the said Society of the Governour and Assistants London of the New Plantation in Ulster in Ireland were Defendants was coram non judice and that all the proceedings thereupon are null and void and that the Court of Chancery in Ireland ought to proceed in the said Cause as if no such Appeal had been made to the House of Lords there and if either of the said Parties do find themselves Agrieved by the said Decree or Orders of the Chancery of Ireland they are at liberty to pursue their proper Remedy by way of Appeal to this House Sir Caesar Wood alias Cranmer versus Duke of Southampton APpeal from a Decree in Chancery the Case was thus Sir Henry Wood the Appellant's Unkle makes a Settlement in Consideration of a Marriage to be had between his Daughter Mary and the Duke c. to the uses following i.e. in Trust to Receive and Pay out of the Profits 450 l. a Year to the Lady Chester for the Education and Maintenance of his Daughter till twelve years of Age then 550 l. a year till Marriage or Seventeen years of Age which should first happen and in Trust to pay the Residue of the Profits to the Duke after Marriage he first giving Security to the said Trustees to provide Portions and Maintenance for the Daughters of the Marriage equal to the Sum he should receive and in case there should be none then the same Money to remain to the Respondent and if the said Mary should die before Marriage or Age of Seventeen years to such Uses as Sir H. W. should appoint And if Mary after Sir Henry's death die under Sixteen the Respondent then unmarried to any other Woman or after and before Seventeen the Respondent then living and unmarried or if before Seventeen she should marry any other or if she should refuse the Respondent then 20000 l. out of the Profits to the Duke But if the said Marriage shall take effect after Mary's Age of Sixteen years and she shall have Issue Male by the Respondent then for the better Settlement of the Premisses upon the Issue Male and a more ample Provision and Maintenance for the Respondent and his Wife and the longest Liver of them in Trust for the said Duke and Mary for and during their Lives and the Life of the longer liver of them and after their Deaths to the first Son c. in Tail Male and for default of Issue Male to the Daughters And for default of such Issue in Trust for such Persons only as Sir Henry should appoint and in default thereof to the right Heirs of Sir Henry Sir Henry W. at the same time makes his Will tho' dated after the Settlement reciting that he had settled the Premisses upon the Duke and Mary for their Lives and the Life of the Longer liver of them c. and confirms it and in Case the said Martiage should not take effect according to the Limitations of the Settlement or if the said Respondent should die without Issue by Mary or if he have Issue by her and that Issue die without Issue then the Remainder to Mary for Life and afterwards to her first Son and after several mediate Remainders then to the Appellant for Life c. and after to Thomas Webb c. Sir Henry Wood dies the Marriage between Mary and the Duke afterwards takes effect upon her arrival to years of Consent and they lived in that state till she was near Seventeen years of Age and then she dies without Issue The Court of Chancery decreed the Profits of the Estate to the Duke for Life It was argued for the Appellant That here was a precedent Copulative Condition that if the Marriage take effect after Sixteen and there be Issue then to the Duke and neither of these being in the Case the Decree is not consistent with the positive words of the Settlement for that the Duke was to have it upon no other terms That by this Settlement the Duke was thus provided for 1. If the Marriage did not take effect by Mary's refusal or taking another Husband the Duke was to have 20000 l. 2. If the Marriage did take effect and Issue was had then the Duke was to have an Estate for Life but not otherwise that the words are plain and certain that there must not only be a Marriage but Issue Male between them that tho' it should be agreed to be a good Marriage within the intention of the Settlement she living till after Sixteen years of Age yet when a Condition Copulative consisting of several Branches as this doth is made precedent to any Use or
after Judgment affirmed in the Exchequer Chamber Or if that proceeding in the Exchequer Chamber doth not come in lieu of Error in Parliament according to the Statute of Eliz. William Bridgman al' Versus Rowland Holt al' A Writ of Error and Petition in Parliament The Case below was thus William Bridgman brings an Assize for the Office of chief Clerk for inrolling of Pleas in the Court of King's Bench and the Plaintiff declares that the Office of chief Clerk for inrolling of Pleas in the Court of King's Bench was time out of mind granted and grantable by the Kings and Queens of this Realm and that King Charles the Second by Letters Patents under the Great Seal of England Dated the Second of June in the Five and twentieth Year of his Reign after a Recital that Robert Henley and Samuel Wightwick were duly admitted to this Office for their Lives granted this Office upon the Petition of Eliott to Silas Titus so soon as it should become void and that Wightwick was dead and Titus had surrendred his Patent did in consideration of Service done by the Earl of Arlington grant this Office to the Plaintiff and his Heirs for the Lives of the Earl of Arlington Duke of Grafton and Dutchess of Grafton and the longer liver of them from and after the Death Forfeiture or Surrender of Sir Robert Henley and that Sir Robert Henly was dead and that thereupon the Plaintiff became seized and was seized of the Office till the Defendants did disseize him c. The Defendants pleaded that they did not wrong or disseize the Plaintiff Upon the Trial of this General Issue at the Bar of the King's-Bench before the three puisne Judges the Chief Justice then sitting near the Defendant's Counsel upon a Chair uncovered the Plaintiff gave in Evidence the Letters Patents of 2 June 25 Car. 2. Then it was proposed by the Counsel for the Defendant That they would prove their Allegation that the Office was anciently granted by the Kings and Queens of England as was declared but no Evidence was given besides this Patent of Car. 2. Then the Counsel for the Defendant waving the just Exception which they might have taken to the Plaintiff's Grant as to him and his Heirs which ought not to be of such an Office for that by that means it might come to an Infant They insisted upon the meer right of Granting the said Office viz. that it was not grantable by the Crown but was an Office belonging to the Chief Justice of the King's Bench and grantable by him Then to prove this it was shewn That this Officer is to Inroll Pleas between Party and Party only and had nothing to do with any Pleas of the Crown or Criminal Matters that all the Rolls and Records in this Office were in the Custody of the Chief Justice that all the Writs to certifie or remove the Records in this Clerk's Office are directed to the Chief Justice and from the nature of the Imployment 't was insisted that in truth he was but the Chief Justices Clerk and that consequently the same must be granted by the Chief Justice And for further proof it was shown by the Records of the Court that for the space of Two hundred thirty five years past this Office when void had been granted by the Chief Justice and enjoy'd accordingly under such Grants In Trin. 36 Hen. 6. Rot. 36. inter placita Reg. Anno Dom. 1458. It is inrolled thus Be it remembred that the Tenth of July this Term in the Court of our Lord the King at Westminster came William Sond chief Clerk of our Lord the King for inrolling Pleas before the King himself in his proper Person and in the same Court of his Free-will did surrender his said Office into the hands of Sir John Fortescue Kt. Chief Justice of that Court to whom of right it doth belong to grant that Office to whomsoever he pleaseth whensoever that Office shall be void during the time that the said Sir John Fortescue shall be Chief Justice and that Office doth resign and relinquish to the use of William Brome and the said Chief Justice doth accept the said Surrender and doth the same day grant the said Office to the said William Brome who is presently admitted into the said Office for his Life and sworn accordingly Mich. 1. Edw. 4. Rot. 51. Upon Brome's Surrender to Sir John Markham then Chief Justice the Chief Justice grants it to Mr. Sonde who is admitted for Life and sworn Mich. 8 Edw. 4. Rot. 26. 1467. Upon the Surrender of William Sonde to the said Sir John Markham then Chief Justice he grants it to Reginald Sonde who is admitted and sworn Reginald Sonde enjoyed this Office till the time of Henry the Seventh and then Bray came in and was Clerk till the 13 H. 7. and then came in Roper Hill 9 Hon. 8. Rot. 3. Anno 1518. Upon the Surrender of this place to Sir John Fineux Chief Justice by John Roper the Chief Justice grants the Office to Sir John Roper and William Roper who are admitted for their Lives and sworn Hill 1 2 Edw. 6. Anno 1547. Upon the Surrender of William Roper Sir John being then dead to Sir Richard Lister then Chief Justice he grants the Office to William Roper and Rute Heywood and they are admitted and sworn Hill 15 Eliz. 1573. Upon the Surrender of William Roper Heywood being dead to Sir Robert Catlin then Chief Justice he granted this Office to John Roper and Thomas Roper for their Lives and they are admitted and sworn Mich. 14 Jac. 1 Rot. 2. Anno 1616. Upon the Surrender of John Roper Thomas being dead to Sir Henry Mountagne then Chief Justice he grants the Office to Robert Heath and Robert Shute for their Lives who are admitted and sworn thereupon Hill 18 Jac. 1. 1620. Shute being dead upon Sir Robert Heath's Surrender to Sir James Leigh then Chief Justice he grants the Office to Sir Robert Heath and George Paul for their Lives and they are sworn and admitted in Court Mich. 5 Car. 1. Upon the Surrender of Sir Robert Heath and Sir George Paul to Sir Nicholas Hide then Chief Justice he grants it to Robert Henley and Samuel Wightwick for their Lives and they are admitted and sworn Trin. 1654. Upon Wightwick's Surrender to H. Roll then Chief Justice Henly being then under Sequestration the Chief Justice grants it to Sam. Wightwick and to Robert Henly Junior for their Lives and they are admitted and sworn Mich. 12 Car. 2. Upon the Surrender of Samuel Wightwick and Robert Henly to Sir Robert Foster then Chief Justice he grants it to Henly and Wightwick for their Lives and they are sworn Wightwick died soon after and Sir Robert Henly enjoy'd it under that Grant 32 years And it was observed on behalf of the Defendant That in all these Records produced and read in Court after the mention of the Surrender to the Chief Justice there are these words To
is aliud testamentum i.e. a general Testament The 2 Rich. 3. fol. 3. is directly thus The Defendant pleads one Will the Plaintiff replies another and exception taken because he did not traverse the former but held needless to do so quia per ult ' testamentum ut placitatur generaliter primum testamentum revocatur in omnibus and it cannot be pretended that this might be the same Will written over again for if so it could not be aliud it would be the same these are not quibbles upon words for can it be said that this is a Devise by the last Will of Sir H. when there 's another Nor is it an Objection that the Contents do not appear for the Will belongs not to the Heir to keep and consequently not to shew in pleading he is not bound to a profert 't is enough that there was a subsequent Will And as the latter may confirm or be consistent with the former so it may not be so and the consistency is not to be presumed especially against an Heir at Law and in possession In the Case of Coward and Marshal 3 Cro. 721. the Substance of both are declared and thereby they appeared to be consistent and consequently no Revocation here Eadem mens sic testandi the same intent of disposing his Estate the same way can never be thought to continue for then there had been no occasion of making another Will If this be not a Revocation 't is an act void and to no purpose which is never to be intended Then 't was insisted on That the bare act of making and publishing another Will is a Revocation and the finding of the Contents unknown is void If this be not a Will 't is a Codicil and that is contrary to the finding of the Jury for the Verdict mentions a second Substantive independent Will without reference to the former which second Will is a Revocation and therefore 't was prayed that the Judgment should be reversed It was argued on the other side in behalf of Mr. Nosworthy That this was no Revocation that here had been a great stir about nothing for that nothing appeared against his Title that a Man may make a Will of several things at several times and they both shall stand that a deliberate Will being made the Contents whereof are known shall never be revoked by that which is not known nothing can be judged upon that which doth not appear and consequently it can never be judged to be a Revocation Here 's another Will and nothing is given by it nothing is found to be given by this subsequent Will The form of entring the ancient Judgments was Quibus visis lectis auditis per Curiam plene intellectis now what is here read to make a Revocation 2 Rich. 3. fol. 3. is with the Judgment for there 't is replied that he made another Executor there are the Contents pleaded sufficient to maintain his Count and answer the Defendant's Bar the Book is per hoc quod alius Executor nominatur Then was cited 1 Cro. 51. the Reason given is quia in dubiis non presumitur pro testamento and here being a good Will at the most the other is doubtful 1 Cro. 114 115. Several Wills of several things may be made And the same Book 595. 10 Car. 1. which Refolution Serjeant Maynard in arguing this Case below said that he heard in that Court of Kings Bench 'T is the Subject Matter of the Wills and the Repugnancy which makes the Revocation In this very Case in the Exchequer upon an English Bill 't was held by Hale to be no Revocation 't is in Hardres 375. Coke upon Littleton which hath been quoted Comments upon these words several Devises and if there be no Devise in the second there can be no sense or meaning in it and consequently unless some meaning appear it can never be an Evidence of a change of his Mind as it might be a Revocation so it might be otherwise and he that will have it to be a Revocation must prove it to be such No Man can affirm that every Will must necessarily be a Revocation of a former for the second Will might be of another thing as Goods or of another parcel of Land or in confirmation of the former If in these and many other like Cases a latter Will is no Revocation of a former how can it possibly with justice be concluded that a latter Will without Contents Purport or Effect shall be a Revocation of a former And tho' the Jury have in this Case believed the Witnesses and found that another Will was made it may be of dangerous Consequence to encourage and construe this a Revocation without knowing the Contents for no Will can be secure against the swearing of a new Will if there be no necessity of shewing it or proving what it was For which and other Reasons it was prayed that the Judgment might be affirmed and it was affirmed Sir Simon Leach al' Plaintiffs Versus J. Thomson Lessee of Charles Leach Defendant WRit of Error to Reverse a Judgment given in B. R. upon a Special Verdict on a Trial at Bar in Ejectment brought by Thomson on the Demise of Charles Leach the Special Verdict finds that Nicholas Leach was seized of the Lands in question in his Demesne as of Fee and being so seized 9 Nov. 19 Car. 2. he makes his last Will and thereby devises the Premisses to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to Simon Leach his Brother for his Life and after his Decease to the first Son of the Body of the said Simon lawfully to be begotten and the Heirs Males of the Body of such first Son lawfully to be begotten and for default of such Issue to the second c. and so on to the eighth Sons of all and every other Sons c. and for default of such Issue to Sir Simon Leach his Kinsman Son and Heir of Simon Leach of Cadley in Com' Devon ' Esq deceased and the Heirs Males of his Body and for default of such Issue to the right Heirs of him the said Nicholas for ever Then they find That the Lands in the Declaration and those in the Will are the same that afterwards viz. 10 Apr. 20 Car. 2. Nicholas died seized without Issue of his Body that after his Death the said Simon his Brother and Heir Entred and was seized in his Demesne ut de libero tenemento for term of his Life Remainder to the first Son of the Body of the said Simon the Brother and the Heirs of the Body of such first Son lawfully to be begotten and for default of such to the second c. Remainder to Sir Simon in Tail Remainder to the said Simon the Brother and his Heirs belonging That Simon Leach the Brother being so seized afterwards viz. 20 Aug. 20 Car. 2. took to Wife Anne the Daughter of Vnton Crook that
the Respondents Davenport and Townsend and their Heirs to the use of him and his Heirs till his then intended Marriage should take effect And after such Marriage had then as to part in trust for his intended Wife and her Heirs and Assigns for ever And as to the rest in trust to permit the said Earl to receive the Profits during his Life and after his decease to sell the same for the best price and out of the Money raised by Sale to defray the Funeral Expences and pay his Debts and deliver the surplus as he should by his last Will and Testament in writing attested by three Witnesses or by another Deed in writing so attested appoint and for want thereof to the Executors and Administrators of the Earl with a Proviso That the said Earl by his last will and Testament or any other Deed in writing to be thereafter by him made and executed and attested as aforesaid might alter change determine or make void all or any the Trusts aforesaid and for want of such after to be made will or deed then in trust for the said Earl Edward his Heirs and Assigns for ever Earl Edward died without Issue of his Body and without Marriage The Appellant exhibited a Bill to have the said Deeds of Lease and Release set aside and to have the Will executed The Respondents as Heirs insist upon the Deeds as a Revocation and their Heirship was thus Theophilus Earl had Issue Edward Katharine Arabella and Margaret Edward died in the Life time of Theophilus leaving Issue Edward late Earl of Lincoln Katharine by Sir George Booth had Issue the Respondent Veer Booth Arabella by Robert Roll had Issue Samuel Roll and Margaret married Hugh Buscowen and had Issue the Respondent Bridget Fortescue And the Court assisted with the two Chief Justices and Mr. Justice Powel saw no Cause to relieve the Appellant And now it was argued with the Appeal That the Dismission was Erroneous there being Cause for Relief for that the Marriage never did take effect nor any serious Overture or Treaty was made by the said Earl on that behalf so as the said Earl did continue and at the time of his death was seized of the same Estate in the Premisses he had at the time of making and publishing the Will that if at Law the Deeds of Lease and Release were in strictness a revocation of the Will yet in Equity they ought not to be construed a Revocation of the said Will so often and so solemnly and deliberately made and published and upon so good a Consideration as the support of the Honour that the said Will was the Result of the Earls continued Intentions throughout his Life and the Deeds were only the effect of some sudden Fancy or Passion and even by those Deeds no benefit was designed to the Respondents for the disposition of the Surplus of what should be raised by the Sale was to be to his Executor Sir F. C. the Appellants Father and that did evidence a continued Kindness to him who never had offended him and no regard to the Respondents who tho' they were his Heirs general were related only at a distance and scarcely known by him and very well provided for by great Portions raised out of the Estate for their Mothers Then 't was argued that this Estate was meerly an equitable one and consequently Equity only ought to govern the disposition of it here 's no express Revocation pretended that a Mortgage in Fee is no Revocation for in Equity it doth not make the Estate anothers Here is a Noble Peer who is to sit in the Seat or Place of his Ancestors and therefore no Presumption Intendment or forced Implication ought to be against him or his Interest that this was designed to take effect in case the Marriage was had and not otherwise that here was no intention to revoke but upon the Contingency of his Marriage And there was cited Zouch and Barker's Case 1625. in the Lord Coventry's time Chancery Rep. and the Lord Boucher's Case in Edward the Sixth's time the Case was said to be in Dyer left as a Query and in 1 Rolls Abridg. And for these and many other Reasons and Authorities urged 't was prayed that the Dismission should be Reversed and the Appellant Relieved On the other side 't was insisted That tho' this was not an express Revocation by the use of words declaring it to be such yet 't was a true legal and effectual Revocation that these Deeds of Lease and Release did alter the Estate that here 't was for payment of Debts as well as in consideration of the intended Marriage that here was a manifest change of his Intention that both Will and Deed were voluntary and inconsistent and therefore the latter must stand that here were no Children or Creditors claiming under the Will that tho' the Subject Matter were an equitable Interest yet Equity ought to follow the Rules of Law that the Law made this a good Revocation and Equity ought to judge it the same way unless Fraud were proved to be used in the procuring of the Execution of these Deeds that the reason why a Mortgage even in Fee is not a Revocation is because a Mortgage doth carry upon the face of it a Defeasance 't is not reckoned an Inheritance to the Heir of the Mortgage but shall be Personal Estate and Assets to pay the Mortgagee's Debts This Deed was revocable by an after Will which shews the Party to have no regard for any former Will nor is there any reference to the Will then in being If a Marriage had happened 't would be agreed to have been a Revocation and if so when was the Will revoked by what Act by the Deed or by the Marriage That it was said that it certainly would have been revoked by the Deed and consequently ought to be construed a Revocation tho' no Marriage did ensue Revocations are the same in Equity as at Law and so was it held in the Case of the Earls of Bathe and Mountague The Statute of Frauds never was thought to extend to such Revocations as these Tho' Earl Edward's Intentions were once to support the Honour with the Estate yet it was always in his power to alter it The Lease and Release passed the Equity of Redemption and consequently 't is the same now between the Appellant and Respondents as if there had been no Mortgage in the Case 'T was further urged That a Will is but an imperfect Conveyance inchoate only and ambulatory as the Books term it till the death of the Party and another Will may revoke it and with greater reason may a Deed which alters the Estate and shews a change of the Intention of the Person who was Owner of it There 's no need of a Consideration to warrant the Revocation of a Will there needs no reason to be given for it 't is only the Mind of the Party which both makes and revokes the Will A Will is