THE CASE OF TENVRES upon the Commission of Defective Titles Argued by all the Judges of Ireland with their Resolution and the Reasons of their Resolution DVBLIN Imprinted by the Society of Stationers Printers to the Kings most excellent Majesty 1637. TO THE RIGHT HONOVRABLE THOMAS Viscount WENTWORTH Lord Deputy generall of Ireland MY LORD THis work is Yours by more then one Interest and therefore it returnes naturally unto YOU for to lay aside my particular respects it being by Your Lordships favour that I serve his Majesty in this place You are Pater Patriae and not more by Your Office then by your love to this nation and your most equall and indifferent dispensation of Iustice next under his Majesty the Father of this Church and Common-wealth And for whom can an oblation of this nature be more proper besides all that is heere as it was at first spoken in an humble obedience to Your Lordships Order so it was after upon a noble invitation from You digested into this forme and it is now made publique by Your Commandement so that in all the passages of it it carryes Your Image Your Superscription and therefore by this dedication I doe not so much give it as restore it If there be any thing in it that is mine that answeares Your expectation even in that that it answeares Your expectation I have my reward for all that are below Your Lordship I hope it shall have this use it shall satisfie them that Your Lo proceedings in this businesse have bin in all points agreeable both to Honour and Iustice God leade Your Lordship by the hand untill You have finished those great and heroicall workes so happily begun May they all prosper to the high pleasure of Almighty God the encrease of Honour and Revenew to his Majesty of peace and prosperity to this Kingdome and to Your own immortall glory Your Lordships most humble servant James Barry The Case of Tenures vpon the Commission of Defective Titles Trin. 13. Caroli Regis AT the late enquirie concerning His Maiesties Title to the Countie of Mayo there was an Act of State published wherein it was declared that it was not his Maiesties intention to take from his people any thing that was iustly theirs and that therefore none who held any Lands or other Hereditaments whatsoever within that County by Letters-patents from the Crowne should be any wayes preiudiced by finding his Maiesties Title although their Letters-patents were not found or well and certaynely found in the great Office then intended to be taken but that they should have the same benefit of them as if they had beene specially found so as they did produce their Letters-patents or the enrollment thereof before the Lord Deputy and Councell at the Councell Board by a certayne day limited in the Act and that they were allowed by that Board to be good and effectuall in Law In pursuance of that Act there were severall Letters-patents produced and among the rest the Lord Viscount Dillon did shew forth Letters-patents obtayned from his late Maiestie and passed upon the late Commission of Defective titles Vpon perusall and consideration whereof his Maiesties Councell were of opinion that they were voyde in law And therefore it was thought fit and so ordered by the Lord Deputy and Councell that the doubt arising upon the Letters-patents should be drawne up into a Case and that that Case should be openly argued at the Councell Board by Councell learned on both sides The Case was after drawne up in these words KIng IAMES by Commission under the great Seale dated the second day of March in the fourth yeare of his raigne did authorize certayne Commissioners to grant the Mannor of Dale by Letters patents under the great Seale of this Kingdome to A. and his heires and there is no direction given in the sayd Commission touching the tenure to be reserved There are Letters-patents by colour of the sayd Commission passed unto A. and his heyres to hold by Knights service as of his Maiesties Castle of Dublin The question is whither the sayd Letters patents be voyde in the whole or onely as to the tenure THis Case was argued on severall dayes first by Nicholas Plunket for the Lord Dillon and Serjeant Catlin for the King and after by Iohn Pollexfen for the Lord Dillon and Osbaldeston Atturney generall for the King And because it was a Case of great weight and importance it was delivered unto the Iudges and they were required by the Lord Deputy and Councell to conferre and consider of it and to returne unto them their resolution concerning it but they upon private conference among themselves did not agree in opinion and therefore it was thought necessary for publique satisfaction that it should be argued solemnly by them all and therevpon in Trinity terme last the Case was argued by Ryves Puisne Iudge of his Maiesties Court of Chiefe place Barry second Baron of the Exchecquer and Cressy one of the Iudges of the Court of Cheife place and after on another day appointed for the Case by Mayart one of the Iudges of the Common pleas Bolton Chiefe Baron Lowther chiefe Iustice of the Common pleas and Shurly chiefe Iustice of the Court of chiefe place And for that I intend to make as summary a Report as I can I will first set downe such arguments and obiections as were made by them that argued for the mayntenance of the Letters patents It was obiected by them That the Letters patents were good for the Land and voyde onely as to the tenure For divers reasons 1. Regularly where a Man doth lesse then the authority or commandement committed unto him there the commandement or authority being not pursued the Act is voyde But where a Man doth that which hee is authorised to doe and more there it is good for that which is warranted and voyde for the rest Cokes instit sect 434. Perk. 189. vid. 8 Coke 85. But in the Case in question the Commissioners doe that which they had authority to doe and they doe more therefore for that which they had authoritie to doe that is to grant the Landes the Letters patents are good for that which they doe more that is the reserving of a tenure they are voyde Their authority was to grant the Mannor of Dale to A. and his heyres that they have fully done and if they had stayed there no man will deny but they had well executed their authoritie but they goe further and doe more and Reserve a tenure therefore for that more for that Reservation their Act is onely voyde 2. VVhere a Man hath authority to doe an act and hee doth it in substance though hee differ in the manner yet the authority is well executed As if a Man make a deede of Feoffment of Blacke-acre and whit-acre and a letter of atturney to enter into both Acres and to deliver seisin of both of them according to the forme and effect of the deede and hee entreth into Blacke-acre
Because that the Authority appeares within the letters patents themselves and exposition shall be made upon the whole patent 5. Although it be a most ample and large Commission yet it is bounded and circumscribed by the Law with an equall Construction S. that nothing shall bee done in other manner then the Authority warrants in prejudice of the King 6. Because that this reservation of a meane tenure is in other manner then the authority warrants and is in damage and prejudice of the King 7. And lastly because that this expresse reservation controlls the implication of Law and for that the King was deceived in his grant in that it cannot take effect according to his intention therein expressed For these Reasons they did resolve That this expresse Reservation of a meane tenure tends to the destruction of the whole patent and makes it voyde in Law both to the lands and to the tenure The Order of the Councell Board upon this Resolution of the Iudges By the Lord Deputy and Councell WENTWORTH WHereas there was an Act of Councell made at this Board and dated at the Abbey of Boyle the Eleaventh day of Iuly 1635. ordayning and establishing that the Lords Knights Gentlemen and Inhabitants their heires and assignes holding any Castle Mannors Lands Tenements or other haereditaments in the County of Roscoman by or under any effectuall letters patents from his Majesty or any of his Royall predecessors Kings or Queenes of England should have hold possesse and enjoy all the said Castles Mannors Lands Tenements and hereditaments of what kinde or nature soever they be to them and to every of them and to those who hold any estates under them against his Majesty his heires and successors in as full large ample free and beneficiall manner to all intents purposes and constructions as if the truth of their severall Cases and their severall letters patents passed thereupon had bene specially found in the great office then to be taken for finding his Majesties title to the said County and their letters patents accordingly entred in haec verba in the said office so that they did produce their said severall letters patents or the enrollments thereof before us the Lord Deputy and Councell at this Board before the first day of the then next Easter Tearme and that no possession should be taken from any such patentees or their assignes or tenants whose patents should be at this Board allowed to be good and effectuall in Law And whereas the like Acts of Councell were made at this Board for the severall Counties of Slygo Mayo and Gallway and the County of the towne of Gallway And whereas severall letters patents past under his Majestyes great seale of divers lands tenements and hereditaments in the said severall Counties by colour of a Commission under the greate Seale dated the second day of March in the fourth yeare of the Raigne of his Majestyes Royall Father King Iames of blessed memory were presented unto us at this Board which being taken into consideration by us we thought fit for our better Information of the validity of the said letters patents to call before us some of those who claymed by those letters patents as namely our very good Lord the Viscount Dillon of Costillogallen whom wee appointed to attend us with his learned Councell therein which he did accordingly Whereupon his Majestyes learned Councell and the Councell learned of the said Lord Dillon agreed upon a Case drawen up by them to be argued by them on both sides before us which Case followeth in haec verba King Iames by Commission under the greate Seale dated the second day of March in the fourth yeare of his Raigne did authorize certaine Commissioners to grant the mannor of Dale by letters patents under the greate Seale of this Kingdome to A. and his heires and there is no direction given in the said Commission touching the tenure to be reserved There are letters patents by colour of the said Commission passed unto A. and his heires to hold by Knights service that is to say by the twentieth parte of c. as of his Majestyes Castle of Dublyn the question is whither the said letters patents be voyde in the whole or onely to the tenure upon which case his Majesties learned Councell and the learned Councell on the part of the said Viscount Dillon argued before us severall dayes and wee desirous to take such a Resolution in the matter as might be equall and just held fit to advise therein withall his Majestyes Iudges who not agreeing unanimously in opinion wee adjudged it fit that every of them should argue it and deliver his Iudgement and opinion therein before us which they did accordingly Wherein five of them viz. the Lord Chiefe Iustice of his Majesties Court of Kings Bench the Lord Chiefe Iustice of his Majestyes Court of common pleas the Lo Chiefe Baron of his Majestyes Court of Exchequer Baron Barry and Iustice Rives concurred in opinion clearely that the letters patents were voyde in the whole and two onely viz. Iustice Mayart and Iustice Cressy differed from those five in opinion holding that the letters patents were onely voyde as to the tenure we thereupon taking the same into consideration at this Board doe hereby adjudge order and declare that the said letters patents are wholly voyde in Law and consequently that all such letters patents passed under colour of the said Commission and that mention the parcells granted to be held by Knights service as of his Majestyes Castle of Dublyn or by any tenure other then by Knights service in Capite generally are not good effectuall or valid in Law but voyde in the whole And therefore we doe at this Board disallowe all such letters patents soe granted as aforesaid of any lands tenements or hereditaments in any of the said Counties of Roscoman Slygo Mayo Gallway or the county of the towne of Gallway Given at his Majestyes Castle of Dublyn 13. Iuly 1637. R. Dillon Ad. Loftus W. Parsons Gerr. Lowther R. Bolton Chr. VVandesford Ph. Mainwaring Cha. Coote Geo. Radcliffe THE END
and delivers seisin secundum formam Cartae this livery and seisin is good albeit hee did not enter into both nor into one in the name of both and yet this is done in another manner then his authoritie warrants for his authority was to enter into both and to deliver seisin of both neyther of which hee doth no not so much as enter into one in the name of both So vvhen the Feoffment is made to two or more and a letter of Atturncy to make Livery to both and the Atturney makes Livery of seisin to one of the feoffees secundum formam effectum Cartae this is good to both and yet in that Case hee that is absent may vvayve the Livery Surely this is done by the Atturney in another manner then the authority warrants for his warrant was to make Livery to both and the intention of the Feoffor was that both should take and the estate bee setled in both and yet hee makes Livery to one onely and so that the estate may bee setled onely in him and yet hee hath well executed his authority for in substance hee hath done that which is commanded and though it differs in the manner it is not materiall both those Cases are put in Cokes instit sect 66. But in the Case in Question the Commissioners have done in substance that which was commanded them therefore their authority is vvell executed and the act they have done is good That they have done in substance that which vvas commanded them appeares in it selfe for their authority was to grant the Mannor of Dale to A. and his heyres this they have done And if they have added any thing to the grant whereby it may bee sayd to bee done in another manner yet the act being done in substance it shall bee good 3. That wherein they have exceeded their authority scilicet the Reservation of the tenure it is not of the essence of the grant Of the essence of a grant are onely Grantor Grantee and the thing to bee granted and apt words in an Instrument or Patent Besides of the essence of a grant it cannot bee for grants were at Common-law tenures were introduced by the Conquest Selden in his Not. to Eadmer 194. Bracton libr. 2. de acquir rerum domin The tenure is another distinct thing aliud from the Land in that they cannot consist in one person the Land is the thing granted that belongs to the Patentee the tenure is Reserved to the King that belongs to him the Reservation is aliud or supra or praeter the grant not alio modo And therefore the Letters patents may bee voyde for the tenure and yet good for the grant of the Land 4. Although it were admitted that the Reservation of the tenure bee not a distinct thing or aliud from that which they had authority to doe but is rather a doing of the same thing for which they had warrant in another manner then their authority does warrant yet it will not follow that the whole act is voyde For an authority given may bee executed in another manner alio modo then the Commission doth Warrant and yet stand good for that which is done according to the authority And that may be in these Cases 1. Where the authority is cloathed with an interest for there in many Cases he that hath the authority may vary from the authority And the act though it bee done in another manner shall bee good As where the custome of a Mannor is that the Lord may grant Landes by Copy of Court-roll in Fee if the grant bee in tayle or but for life this is good Stanton and Barnes his Case Hill 36. Eliz. Roc. 492. in B. R. Cokes instit sect 66. So where the custome was to grant Copyes for two lives and hee grants to the Husband for life and after to the Wife Durante viduitate This is good Downes and Hopkins Case P. 36. Eliz. B. R. The Statute of 32. Henr. 8. doth enable tenant in tayle to make a Lease for one and twenty yeares if he makes a Lease for twenty yeares onely or to one for tenne yeares and after makes a Lease to another for eleven yeares more this is good and so it hath beene Resolved in Tompson and Traffords Case Hill 35. Eliz. B. R. 2. Where the varying from the authority given is in letter or circumstance and not in a point materiall or in substance for that see the Cases cited before Cokes instit sect 66. Litt. 434. 3. Where the varyance from the authority although it bee in matter of substance is supplyed by operation of law As if a licence bee granted to a Copy-holder for life to make a Lease for tenne yeares if hee shall so long live the Copy-holder makes a Lease for tenne yeares absolutely without the limitation videlicet if hee shall so long live yet adjudged good and the Licence well pursued It was Hatt and Arrowsmiths Case Hillar 38. Elizabeth B. R. And in the Case in question where all agree that the Kings meaning in this Commission was that a tenure in Capite should bee Reserved albeit it bee not expressed in words or if it had beene in expresse termes that a tenure in Capite should bee reserved and they had onely granted the Mannor without reservation of any tenure yet the Law supplying this defect and raysing a tenure in Capite this shall make the grant good 4. VVhere the varyance from the authority is cured by the party himselfe by some other act As if Tenant in tayle Husband and Wife a Bishop c. who are authorized by the Statute of 32. Henr. 8. to make leases for one twenty yeares or three lives of Landes usually lett make a lease of Landes usually lett and of Landes not usually lett reserving one entire Rent all is voyde Shepheards Case But if Tenant in tayle will make such a lease and reserve the accustomed Rent for the Landes usually lett and another Rent for the Landes not usually lett heere the lease shall bee good for the Landes usually lett and voydeable onely for the other for by these severall reservations the varyance from the authority is Cured Tanfeild and Rogers Case Trin. 36. Eliz. B.R. 5. VVhere the varyance from the authority how materiall soever it bee is notwithstanding made voyde eyther by the Common-law or act of Parliament As where the King does licence I. S. to grant twenty Markes annuity in Mortmaine and hee grants the Annuity with clause of distresse by Hussey and Bryan chiefe Iustices and Starky chiefe Baron and Iustice Faierfax the addition of distresse is without warrant and voyde yet all admit the grant of the Rent good notwithstanding 2. 3. H. 7. grants 36. By the Statute of 1. Elizabeth a grant by a Bishop of an ancient Office of Seneschall-ship to two that had never before beene granted but to one is adjudged voyde 10. Coke 61. the Bishop of Salisburyes Case Put case then that such a
ultima intentio Regis but tota sola prima ultima intentio Regis are all to be taken and gathered out of the Commission or vvarrant from the king under the privy Signet upon vvhich they are passed And here the Iudges are to ground their judgement upon the Commission or vvarrant aswell as upon the Letters patents And to these seven Arguments or reasons all that was spoken by them that argued for the Letters patents may be reduced But it was resolved by the two chiefe Iustices the chiefe Baron Baron Barry and Iustice Ryves vvith whom Baron Lowther agreed in opinion though hee could not then argue by reason of sicknesse That the Letters patents are voyde in law both to the Land and to the tenure In this case five things did fall into consideration 1. The commission mentioned in the Case and the authority of it 2. Authorities and their severall sorts and how they ought to be pursued 3. The Authority in this case what it is if it be pursued as it ought to bee wherein it is not pursued 4. Tenures what they are in the grant that the reservation of a tenure is modus concessionis that it is not aliud or a distinct thing from the grant that tenures had their originall in England before the Norman Conquest 5. The reasons why the Letters patents are voyde in the whole and the authorities upon which the Resolution is grounded 1. The Commission mentioned in the case is the commission that was in force in the time of his late Maiesty for the strengthening of Defective Titles a Commission that was one of the greatest graces and bounties that ever before that time vvas vouchsafed by the kings of England to their Subjects of this kingdome a Commission that was agreed by all to bee a good and legall and effectuall commission and to contayne in it selfe full power and authority to grant Of vvhich the chiefe Iustice of the Common pleas in his argument fayd that upon this occasion he did seriously peruse it and in his judgement it was as full and strong a Commission for granting the Landes concurrentibus hijs quae de jure requiruntur as any hee had seene There vvas in the Commission as hee sayd plenitudo potestatis there is not any question of the Commission nor of the power granted by the Commission Neyther as it vvas declared was it the intention of his Maiesty to deny unto the Subject the full benefit of it in all things wherein the Commissioners had pursued their authority given by the Commission and proceeded according to the law For that that there was no direction in the Commission for the tenure it was no defect in the Commission as the chiefe Baron observed nor any omission or negligence in them that were trusted with the drawing of it it was done upon good aduise of purpose for the cases of them that vvere to passe upon that Commission were so different and there was such variety of tenures that it was not possible to give any certaine direction in the Commission concerning them Besides the intention of that Commission was not to give authoritie for the alteration or diminution of the Kings tenures it was intended onely for the establishing of the estates and possessions of the Subject And therefore there is not a vvord in it of any tenure so that the purpose of it was where any former tenure vvas in esse to preserve it and where no tenure was in esse to leave it to the Reservation of the Law So that now the Commission being cleared agreed to be good and legall and to contayne full power and ample authority to grant the Landes The sole Question vvill be of the pursuance of the Commission and whither this power granted by the Commission bee well executed and pursued by the Commissioners 2. To find out the law in this Case the severall sorts of authorities in our Bookes were considered and how they ought to be pursued For authorities these differences vvere agreed for Lavv. All authorities are eyther authorities in law or authorities in fait 8. Coke 146. the 6. Carpenters case Authorities in law are vvhere the law gives authoritie vvithout any authoritie from the party as the lavv gives authority to the Lord to distraine for his Rent and service to the ovvner of the soyle to distraine damage feasant to him in the reversion to enter and see if vvast be done and the like An authority in fait is where the authority is given by the party Authorities in fait are eyther Nude and bare authorities or authorities cloathed with an interest Cokes instit 52. Nude authorities are given eyther by 1. Deede 2. Commission 3. Patent 4. VVrit 5. or Act of parliament And for all those authorities it is a certaine rule and ground in our law that they are to be pursued strictly and precisely both for matter and forme or otherwise the act done by colour of that authority is voyde 10. H. 7. 15. But the execution of authorities that are cloathed vvith an interest are of a more large and favourable interpretation then the execution of those that are but bare authorities 5. Coke 94. 95. in Barwickes case 1. That authorities by Deede are to be pursued strictly and precisely both for matter and manner See the Case of 12. Ass 24. 26. Ass 39. There the Case vvas that the Plaintife did make a Charter of Fee-simple to the Tenant and a letter of Atturney to deliver Livery of seisin the Atturney delivers Livery upon condition this Livery is voyde for the authority is not pursued in the manner So on the contrary if the letter of Atturney had beene to deliver Livery of seisin upon condition and the Atturney makes Livery vvithout condition this is voyde Cokes instit 258. 11. H. 4. 3. A letter of Atturney is made to make Livery after the death of I.S. and the Atturney makes Livery during the life of I.S. all is voyde 40. ass 38. If I command a Man to make a Deede of feoffment in my name according to a Copy shewen unto him in Latine if hee make a Deede of feoffment according to the effect of the same wordes in English or French the Feoffment is without warrant for in that case hee does not pursue the authority in the manner 10. Henr. 7. 9. So where an authority is given to enfeoffe and he leavyes a Fine ibid. 10. Henr. 7. 15. 2. For authorities by Commission that they must be pursued it is the Earle of Leicesters case in Plowd Com. 380. The Earle of Leicester 1. Mar. was indicted of high treason before Sir Richard Sowthwell seaven other Commissioners by vertue of a Commission directed to the sayd Sir Richard and fourteene more After another Commission was directed to Sir Thomas VVhite and others reciting that where the Earle of Leicester stood indicted before Sir Richard Sowthwell and fourteene other Commissioners of divers Treasons c. It gave them authority