Grant of the Town of Haverfordue the King afterwards inclining to dignifie his Son with that Title procured him to Surrender by Deed and bestowed on him another Title and gave a greater Estate and an ancienter Honour Here was an Estate Tail surrendred by Deed it might work a kind of Discontinuance but no legal effectual Surrender And for the Case of Ch. Brandon who in the time of H. 8. was created Viscount Lisle afterwards he surrendred that and got a Dukedom now no Man ever questioned the efficacy of this Surrender for he himself had no reason to question it for 't was to his advantage and none other could question it for he died without Issue and his Honour with him And so in the Case of my Lord Stafford he surrendred and got a new Honour So that it appeared all these Cases were either Honours referring to Offices and Lands or else such as were for the re-granting of greater Dignities which they had no reason to question and so they passed sub silentio But here is not one Precedent that they did ever Surrender to the Prejudice of their Blood or move themselves quite out of the House by Fine or Deed. And further If Precedents be good for the Surrender of an Honour by Fine why not also for Transferring of it to another for of this we have some Precedents Daincourt's Case 4 Inst 126. One Branch of the Family sat in the House by virtue of a Grant from the other Branch from the Reign of Ed. 2. to Hen. 6. and the Case of the Earldom of Chester first granted 17 H. 3. n. 25. and transferred 39 H. 3. And there was an Attempt made in the Lord Fitzwater's Case to make a Baron by transferring of the Dignity but you will find all these Precedents disallowed And 't was said that no Man ever met with any Case where any Nobleman by Fine levied or other Conveyance became a Yeoman or Ignoble 'T was argued by another much to the same effect That Baronage and Peerage is to be determined by the Records of the Lords House and if any other way be given as there must be if a Fine be allow'd to barr then the old true way is gone This was not a Fine Conditional at the Common Law and therefore not within the Statute De donis Conditionalibus and an Honour being a Personal Dignity is not to be barred Jones Rep. 123. by Fine being inherent in the Blood c. The Duke of Bedford was by Authority of Parliament degraded and that was for Poverty and by Act of Parliament and not by Surrender Therefore Judgment was prayed for the Petitioner The Attorney General argued pro Domino Rege upon these Reasons 1. There is but a defective Proof of the Creation of this Honour no Letters Patents no Records of the Inrollment produced nor any Entry in any Office of such a Patent as is usual all that is pretended is That he sate in some Parliaments afterwards as Viscount Purbeck but that will not be accepted for proof for no Man can be created Viscount but by Letters Patents a Writ of Summons will be an Evidence of a Creation but will not amount to a Creation there is a Ceremony equal almost to that of an Earl there must be a Coronet all which must be performed or he must have Letters Patents to dispense with it which being Matter of Record must be produced 18 Hen. 6. Beaumont was the first created Viscount but there was never any since nor then without Letters Patents for he is to take place of some and therefore he must have something to show for his Precedency but a Baron is the lowest Dignity and therefore may be created by Writ Neither can it be presumed that they were lost for except it be produced it makes no Title except they be produced it shall not be intended there was any neither can it be help'd by any concurrent Evidence for if there were Page's Case 5 Rep. 53. a true Creation there would be some Evidence in some of the Offices but there is not in any of them the least vestigia of proof to ground a presumption 2. Dignities as well as other Inheritances must be limited according to the Rules of Law the Dukedom of Cornwal in 8 Rep. the 1. the Prince's Case was limited according to the strictest Rules of Law And whereas it hath been said that Dignities differ from other Inheritances that is where there is some particular reason for it as in the case of Transmission or Alienation which depends not upon the Manner of Creation as shall be shewn afterwards And for the Case of 1 Inst 27. which was that an Inheritance of a Dignity may be created by other words than other Inheritances are as an Estate Tail without the words of this body there 's not any such thing in the Book 'T is said indeed that if the King for reward of Services done do grant Armories to a Man and his Heirs Males 't is an entail of the Coat without saying of his body but I think that will not be taken for the Case of a Dignity the Statute De donis Conditionalibus extends to Honours the word terram would be thought an improper word to comprehend all things tailable yet said to extend to all and to Honours too 1 Inst 20. and if an Honour can't be entailed then no Remainder can be limited and yet there be many Lords that sit in this House by Remainder by good Title The Statute of 26 Hen. 8.17 saith That if a Man be Attainted of Treason he shall forfeit his Lands Tenements and Hereditaments Now 't is adjudged that the word Hereditaments comprehends Honours which show that they are subject to the same Rules of Law that govern other kind of Inheritances and are comprehended with other Particulars without general words This being premised it 's a known Maxim in all Laws Nihil rationi magis consentaneum quam rem eodem modo dissolvi quo constituitur which Rule is so general that the highest Authority i. e. the Parliament is not exempt from it for 't is not possible to establish any thing so firm by Statute which cannot by another Statute be annulled Now in the Creation of a Peer there are three things the Person that creates the Person that is created the Matter of Record whereby he is created Now if the King who is the Person that creates and his Successors agree with the Person that is created Peer and his Successors the one to undo their parts and the other to give away their parts and there is a Matter of Record of as high a nature concurring to effect this Dissiolution c. in some Cases 't is in the power of an Ancestor by his own act to destroy a Patent as if a Scire Facias in Chancery be brought against his Patent and Matter is suggested whereby to avoid it this shall Bro. tit Patent 37 97. vacate whatsoever was created by the Patent
cum aggravatione pene corporalis somewhat more than Death Then this being a Common Law Punishment and not prescribed by any Statute the knowledge of it must be fetcht from our Law-Books and from Presidents for the General Practise of the Realm is the Common Law 't is describ'd with an ipso vivente in Smith's Republica Anglic. p. 28. lat Edit pag. 245. Stamf. 182. en son view which is tantamount and Stamford wrote 2 Eliz. In Coke's 3 Inst 210. 't is ipsoque vivente comburentur Pulton de Pace Regni 224. and many other Books were cited to the same effect And 't was affirmed that there was no Book which recited the Judgment at large but had this Particular in it Several Books do in short put it That for Treason the Party shall be Drawn and Hanged and Quartered but those are only Hints of the Chief Parts not Recitals of the Judgment it self In the English Book of Judgments printed 1655. pag. 292. 't is mentioned particularly as the Kings Bench have adjudged it should be The Duke of Buckingham's was so 13 Hen. 8. Stow's Chronicle 513. shews that he was the Person Then 't was said they have been thus in every Age without interruption 'till 26 Car. 2. Humfrey Stafford's Case 1 H. 7.24 which was per consensum omnium Justiciariorum tho' quoted on the other side as shortly stated in the Year-Book yet on the Roll which hath been seen and perused 't is with an ipso vivente Plowden 387. and Rastal's Entries 645. the same Case is thus Coke's Ent. 699. is so likewise John Littleton in 43 Eliz. Coke's Ent. 422 423 and 366. is so In the Lord Stafford's Case 33 Car. 2. by the Direction of this House and with the Advice of all the Judges was the Judgment so given by the Earl of Nottingham then Lord High Steward In the Lord Preston's Case 't is so which was drawn by Advice of the then Attorney and Sollicitor the present Keeper and Chief Justice of the Common Pleas. As to the Objection That vivens prosternatur doth imply it and that 's enough It was answered That ipso vivente comburentur implies both but not e contra and all the Presidents shew the latter to be requisite And as to the Case of David Prince of Wales mentioned in Fleta there 's only a Relation of what was the Execution not of what was the Judgment And Coke 2 Inst 195. says That the Judgment was in Parliament and therefore the same can be no President to this purpose and any one that runs over Cotton's Records will find the Judgments in Parliament to be different as the Nature of the Case required No Argument can be drawn from the Acts of the Legislature to govern Judiciary Proceedings however John Hall's Case 1 Hen. 4. Cott. 401. is as now contended for Before the 1 Hen. 7. there were some Erroneous Attainders and the 29 Eliz. takes notice of them as so errneous The Judgments against Benson and Sir Andrew Helsey cited below are plainly erroneous they dispose of the Quarters which they ought not but leave the same to the King's pleasure Sir Andrew's President is a monstrous arbitrary Command by Writ to Commissioners of Oyer and Terminer ordering them to Examine him and to give Judgment in manner as in the Writ is directed that therefore is not to be justified and 't was before 25 Edw. 3. Henry Ropers 21 Rich. 2. doth dispose of the Quarters and hath other Errors in it and so have William Bathurst's and Henry South's which were in 3 Hen. 4. But from that time to 26 Car. 2. there 's none which do omit it The four Presidents at the Old Baily were against Popish Priests and what private politick Reasons or Commands might occasion the omission is unknown and Hampden was not Executed but his Judgment was upon a Confession and his Life saved the reason of which is also unknown So that there have been none Executed upon such Erroneous Judgments And that there are no more Presidents with the Omission is a good Argument that those many which have this Particular in them are good and legal the constant Current having been this way proves the same to be the Common Law And this is the most severe part of the Punishment to have his Bowels cut out while alive and therefore not to be omitted As to the Earl of Essex's Case in Moore and Owen's Case in Roll's Rep. the first is only a Report of the Case and the last a descant upon the Judgment but neither do pretend to recite the whole Judgment Then to pretend that this Judgment cannot be Executed is to arraign the Wisdom and Knowledge of all the Judges and Kings Counsel in all Reigns And Tradition saith that Harrison one of the Regicides did mount himself and give the Executioner a Box on the Ear after his Body was opened c. Then 't was argued That if it be a necessary part of the Judgment and be omitted it is a fatal Error and doth undoubtedly in all Cases give a good reason for the Reversal of such Judgment as in the Common Case of Debt where dampna are omitted in the Judgment tho' for the Advantage of the Defendant as is Beecher's Case and Yelv. 107. Besides if this be legal then all those Attainders in which this Particular is inserted must be illegal for 't is impossible that both the Judgments should be right for either those are more severe than they should be or this is more remiss To say that 't is discretionary is to give the Judges a power which they themselves have disclaimed and to Reverse this Reversal is to tell the Court of Kings Bench that they are not obliged to follow the General Practise of their Predecessors that they are obliged to no form in their Judgment for Treason that nothing but Death and being Drawn to it are essential and according to that Doctrine a Woman might receive the Judgment of Quartering and a Man might be Burnt and both according to Law But the Constitution of this Kingdom hath prescribed and fixed Rules and Forms which the Executive Power is obliged and bound to follow that as nothing can be made or construed to be an Offence at the Pleasure of the Court so no Judgment can be given for any known Offence at Pleasure But the Law either Statute or Common hath established what is an Offence and what is its Punishment and there is nothing of Arbitrary Power allowed in respect of either Wherefore upon the whole it was prayed that the Reversal might be affirmed and it was affirmed accordingly Sir Evan Lloyd Baronet and Dame Mary his Wife and Sidney Godolphin Esq and Susan his Wife Appellants Versus Sir Richard Carew Baronet an Infant the Son and Heir of Sir John Carew Baronet deceased Respondent APpeal from a Decree of Dismission in Chancery The Case was thus Rice Tannott died seized in Fee of several Lands in the several Counties of Salop
Denbigh and Montgomery leaving three Daughters and Coheirs Mary Penelope and Susan Susan married Sidney Godolphin one of the present Appellants In July 1674. Mary and Penelope in consideration of 4000 l. paid to the said Mary by Richard Carew Esq and in consideration of a Marriage to be had and which was afterwards had between Penelope and the said Richard Carew by Lease and Release convey all those their two Parts of the said Lands in Denbigh Salop and Montgomery to Trustees and their Heirs to the use of Richard Carew for Life then to Penelope for Life for her Jointure then to the said Trustees and their Heirs during the Lives of Richard and Penelope to preserve contingent Remainders then to the first and other Sons of Richard and Penelope in Tail-Male successively And in default of Issue-Male to the Daughters of Richard and Penelope in Tail And in default of such Issue as to one Moiety of the said two Parts to the first and other Sons of the said Penelope by any other Husband in Tail the Remainder of all and singular the Premisses to the said Richard Carew and his Heirs for ever subject to this Proviso That if it should happen that no Issue of the said Richard upon the Body of the said Penelope should be living at the decease of the Survivor of them and the Heirs of the said Penelope should within Twelve Months after the decease of the Survivor of the said Richard and Penelope dying without Issue as aforesaid pay to the Heirs or Assigns of the said Richard Carew the Sum of 4000 l. that then the Remainder in Fee-simple so limited to the said Richard Carew and his Heirs should cease and that then and from thenceforth the Premisses should remain to the use of the right Heirs of the said Penelope for ever After this Mary intermarried with the Appellant Sir Evan Lloyd and a Partition was made of the Premisses and the same had been enjoyed accordingly ever since and Mr. Carew and his Lady levied a Fine to Mr. Godolphin and his Lady of his part who did thereupon by their Deed dated 23 Sept. 1676. covenant to levy a Fine of Mr. Carew's two Parts to such uses as he and his Lady should limit and appoint but have not yet levied the said Fine Richard Carew and Penelope his Wife to avoid all Controversies that might happen whereby the Estate of the said Richard Carew or his Heirs might be question'd or incumbred by the Heirs of Penelope and to the End to extinguish and destroy and barr all such Estate Right Title Equitable or other Interest as the said Penelope then had or her Issue and Heirs might have or claim to the same by any Power Settlement or Condition on payment of 4000 l. or otherwise to the Heirs of Richard Carew by the Heirs of the said Penelope and for the settling of the same on the said Richard Carew and his Heirs did in Michaelmas Term 1681. levy a Fine of the Share and Part allotted to them and by Deed of 10 Decemb. 1681. declare that the said Fine should be to the use of the said Richard for Life Remainder to Penelope for Life the Remainder to the said Richard Carew his Heirs and Assigns for ever And do further declare That the Fine agreed to be levied by the Appellants Sidney Godolphin and Susan his Wife by their Deed dated the 23 Sept. 1676. should be to the same uses and then direct the Trustees by the first Settlement to convey to those uses Penelope died without Issue in 1690. Richard Carew made his Will in Aug. 1691. and devised the said Lands to Sir John Carew Baronet his Brother subject to pay all his Debts and Legacies and made Sir John Carew his Executor In Decemb. 1691. Richard Carew died without Issue and Sir John Carew entred and was seized and possessed of the Premisses and paid 4855 l. for the Debts of Richard Carew Sir John Carew died and the Respondent Sir Richard Carew an Infant is his Son Heir and Executor The Appellants Mary and Susan claiming the Lands as Heirs to Penelope by virtue of the said Proviso in the first Settlement upon payment of the 4000 l. exhibited their Bill in Chancery to compel the Trustees to convey the Estate to them upon such payment Upon hearing of this Cause on Bill and Answer the Court ordered a State of the Case to be drawn which was as above and afterwards the Court assisted by the Chief Justice of the Common Pleas and Mr. Justice Rooksby seeing no Cause to relieve the Plaintiffs dismissed their Bill And now it was argued on behalf of the Appellants That such Dismission ought to be set aside and amongst other things it was insisted on in favour of the Appeal that this Proviso was not void that it was within the reason of the Contingent Limitations allowed by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk and there were quoted several Paragraphs in the Argument made by the said Lord Chancellor as that future Interests springing Trusts or Trusts Executory Remainders that are to emerge or arise upon Contingency are quite out of the Rules and Reasons of Perpetuities nay out of the Reason upon which the Policy of the Law is founded in those Cases especially if they be not of remote or long Consideration but such as by a natural and easie Interpretation will speedily wear out and so things come to the right Channel again That tho' there can be no Remainders limited after a Fee-simple yet there may be a Contingent Fee-simple arise out of the first Fee that the ultimum quod sit or the utmost Limitation of a Fee upon a Fee is not yet plainly determined that tho' it be impossible to limit a Remainder of a Fee upon a Fee yet 't is not impossible to limit a Contingent Fee upon a Fee that no Conveyance is ever to be set aside in Chancery where it can be supported by a reasonable Construction especially where 't is a Family Settlement Then these Paragraphs were applied and further urged That there could not in reason be any difference between a Contingency to happen during Life or Lives or within one year afterwards that the true reason of such Opinions which allowed them if happening within the time of the Parties lives or upon their deceases was because no Inconvenience could be apprehended thereby and the same Reason will hold to one year afterwards and the true Rule is to fix Limits and Boundaries to such Limitations when so made as that they prove Inconvenient and not otherwise That this Limitation upon this Contingency happening was the considerate Intention of the Family the Circumstances whereof required Consideration and this Settlement was the Result of it and made by good Advice That the Fine could not barr the Benefit of this Proviso for that the same never was nor ever could be in Penelope who levied the Fine As to the Pretence That if the
262. and Spelman verbo ligeantia and Calvin's Case 7 Rep. expounding of that word and the old Custumer of Normandy cap. 43. And the said and other Authorities were inforced and amplified in such manner as is not fit to be remembred Then 't was urged That as the Subject Matter of this Indictment did require these words so the Reason of the Law in other Cases did warrant them to be necessary here that vi armis was necessary till the Statute of Hen. 8. made it needless and 't would be strange that an Indictment for a Trespass setting forth an Assault and Battery with force of Arms should be ill for want of contra Pacem and this should be good without contra ligeantie sue debitum contra formam statut ' is necessary tho' the Fact be alledged sufficiently appearing to be within a Statute Law Indictments are not to be made good by Intendment or Implication Stamford 96. Trin. 18 Edw. 4.10 Furatus est without felonice not good Felonice abduxit without cepit not good So for a Rape quod ipsam contra voluntatem suam carnaliter cognovit without rapuit is ill 9 Edw. 4.26 and so is Dyer 304. Murdravit is necessary No Words or Terms of Art are to be supplied by any other Phrases equivalent or tantamount in Sense for the sake of certainty because if such loose Descriptions should be allowed 't would subject Mens Actions too much to the Power of Construction 2 Cro. 20 142 187 527. And in all Indictments for Offences committed between Decemb. 15. and Febr. 13. 1688. the Conclusion was contra pacem regni Then was cited Vaux's Case 4 Rep. 39. 2 Rolls Abridg. 82. Then 't was said that there were express Authorities for the Defendant 3 Inst 11. that the Indictment of Treason concludes thus 1 Inst 129. is the same and Dyer 144. to the like effect And what is said in the Margin of the new Dyer is very remarkable as to Mary Queen of Scotland Calvin's Case 7 Rep. 6. is full and express as to the reason of the thing and it is founded upon the Difference between an Alien Enemy and a Subject Courteen's Case Hob. 271. Hobart is of Opinion according to Calvin's Case that Indictment against Alien amie it must conclude contra debitum ligeantie sue Besides here are no words which carry the same Sense or are equivalent to it Proditorie doth imply a Treachery or Falshood and that he might be guilty of and yet not act contrary to his Allegiance for at that rate every Breach of Trust as to the King would be Treason debitum ligeantie sue minime ponderantes is not sufficient for a Man may not weigh his Allegiance and yet not act contrary to it then contra naturalem Dominum suum supremum verum indubitat ' those words in themselves are not necessary and anciently were not inserted In old time 't was only contra Dominum Regem and 't will be hard to say that the use of words unnecessary should supply what is necessary and hath anciently been used Those words do only import that the late King was King of the Place where the Defendant was born and lived and cannot make it appear that his Fact was contrary to the Laws of the Land and the Duty of his Allegiance as a Subject to him Then supposing it not necessary in the Conclusion for as some Presidents are in West's Symboleography 't is first as contra ligeantie sue debitum levavit guerram yet it ought to be in the Indictment in one part or another The formal Reason of the Facts being Treason is because 't is against his Allegiance and that ought to be expressed all the other Expressions urged on the other side are at the most but Argumentative and do not directly affirm the thing which is necessary to make the Offence As to the Presidents which are the other way they are but few those in the Reign of Hen. 8. and Queen Elizabeth they are upon particular Statutes as for denying the Supremacy taking Orders under the Pope and the like they are not contra ligeantiam in the nature of the Offence and there contra formam statut ' is enough But no Answer can be given to the Case of Lopez in Calvin's Case where the Judges met and considered how the Indictment should be and agreed to be contra supremum Dominum suum in Anglia and the Conclusion to be contra ligeantie sue debitum Whereupon for these and other Reasons it was prayed that the Judgment of Reversal given in the Kings Bench might be affirmed and it was affirmed accordingly Joseph Eastmond Executor of Henry Eastmond and Samuel Nayle Appellants Versus Edwyn Sandys Clerk Respondent APpeal from a Decree of the Court of Exchequer The Case was no more than this The Parish of Yeovilton consisting much in Pasture Land and the Respondent having been Rector thereof for Twenty years last past and upwards and being intituled to the great and small Tythes and all other Dues within the said Rectory he did exhibit his Bill in that Court against the Appellant Joseph in his own right and as Executor of Henry his Father and against the other Appellant Samuel Nayle for Agistment Tythes for depasturing and fatting their Oxen and other unprofitable Cattle within the said Rectory from the Year 1677. to the time of exhibiting his Bill which was in Michaelmas Term 1692. The Appellant Joseph Eastmond by his Answer admitted that he had Assets sufficient to answer the Plaintiffs Demands and both of them admitted that they and the Testator had fatted and depastured divers Oxen yearly upon their Lands in the said Parish but said that some of them were first used to the Plough and afterwards fatted when turned off from the Plough The Court of Exchequer did thereupon viz. May 26. 1696. decree Tythe Herbage to be paid for the Appellants and the Testators Oxen and unprofitable Cattle not used for the Plough and also for their Oxen and unprofitable Cattle used for the Plough for and during the time they were grazed and fatted in the Parish for Sale after they were turned off from the Plough And now it was insisted on in favour of the Appeal that the Decree was unjust and then were quoted some Texts of Scripture about muzzling the Ox c. And also it was urged That that part of the Decree concerning Oxen once used to the Plough was erroneous and there were cited all the Cases in the Books for exemption of Plough-Cattle from Tythe Herbage and that this was double Tything And it was insisted on that the Reason of the thing was against it in this Case because the agistment of these Cattle was necessary to sustain that labour which promoted the Grain of which Tythe was paid that this Priviledge extended to all such Oxen as ever had been used to the Plough that the exemption did continue after they were forborn to be used at the Plough for there was the same
the Plaintiffs Title or Charge This is no more then if they had traversed the Grant which they could not do In the Case of a common Person suppose the Defendant's Title not full yet if he traverses the Plaintiffs that 's enough Form requires an Inducement to a Traverse but the latter is only material for the Plaintiff to answer to for nothing can be traversed but what is material now why should it not have been a good answer to their Declaration to have said that Car. 2. presented by Lapse absque hoc that Car. 1. died seized for by this the Seisin or Presentation of Car. 2. had been avoided and there 's nothing else material in the Declaration for the Seisin of Queen Elizabeth and Jac. 1. are not to the purpose and if answered by the Defendant it must have been against him there had been a good Title for the King without it then supposing it necessary to shew how it came out of Car. 1. the Attorney General can only take Issue on the Traverse of his dying seized for that denies the whole Title that is material to be answered to Now whatsoever shews that the Plaintiff hath no right to the thing in demand is a good Plea let who will have the true right The true Title upon this Declaration is that Car. 1. presented and thereby became seized and died seized and the denying him to dye seized is a denial of this Title for if K. Car. 2. did present by Lapse and K. Car. 1. did not die seized 't is with the Defendant no Man is bound to answer that which if he do 't will still be against him but if a Man makes such an answer as if true the present Plaintiff hath no Title 't is enough Then if it be true that no Right descended from Car. 1. to Car. 2. and that Car. 2. presented only by Lapse what Right can his present Majesty have and all this is confessed by the Demurrer if well pleaded and 't is no Objection to say that the dying seized ought not to be traversed but only the Presentation for that is a mistake in case of Land 't is good and an Advowson is an Inheritance descendible in like manner and Mr. Attorney thinks it a good Traverse for he all along in his Declaration alledges a dying feized from Queen Elizabeth downward and there are several Presidents thus Winch's Ent. 661 662. and Winch. 912 686 692. and Buckler and Symonds Winch. 911 912. is of an Advowson in gross and in the same Book 35 59 are thus A man may die seized of an Advowson as well as of Land and if he doth not dye seized it doth not descend and the Seisin in gross is not to be traversed as is 1 Anderson 269. and Hob. 102. ' Then 't was said that the true Reason and Nature of a material good Traverse is well explained in Vaughan's first Case of Tufton and Sir Rich. Temple and 1 Saund. 21 22. and it is this especially in a Quare Impedit If any thing in the Count be travers'd it must be such Part as if true is inconsistent with the Defendants Title and if false or found against the Plaintiff doth absolutely destroy his Title nay if the Traverse leaves no Title in the Plaintiff then 't is good whatsoever comes of the Defendants Then the Difficulty is If the King by his Prerogative may waive his own Title which is traversed and insist upon the Deficiency of that which the Defendant alledges and in the Case of the King and the Bishop of Worcester and Jervis in Vaughan 53. there 't is said That the King ought to maintain his own and not to question the Defendants he cannot desert that which he hath alledged for himself and fall upon the Defendants Title and Reason warrants such Rule for tho' the King hath no Damages in a Quare Impedit notwithstanding his laying it ad dampnum Hob. 23 yet the Suit supposes an Hindrance and Damage to the King and if the Right be not his he hath no Cause to complain of the Defendant tho' another hath Every Man is to recover by his own Strength and not by the Weakness of the Defendants Pretensions and if the Law be thus then how can Mr. Attorney-General take Advantage of this upon Demurrer after Oyer for now upon Oyer 't is as they say become Part of the Defendants Plea and consequently it must be part of the Inducement and if so he ought in that Case to have taken Issue upon the Traverse which denied his Master's Title Wherefore upon the whole Matter it was prayed That the Judgment should be reversed On the other side 't was argued for the King That this Judgment ought to stand and as to the last point 't was said That taking it for granted the King could not traverse any Point of the Defendants Plea yet certainly he might demurr upon the whole in case it were insufficient That now Oyer was craved and had the Deed did become part of the Defendants Plea and must be taken as such That tho' there had been no need of a Profert yet when 't is produced 't is such as he hath pleaded and upon the whole the Court is to judge there being a Demurrer That as the Case stood the King might take advantage of both the Exceptions That the Declaration of it self was good and if the Plea be naught the King ought to have Judgment for him That every Plea is to be taken most strongly against the Party that pleads it That here the Defendant had admitted K. Car. 1. well seized that he ought to shew it out of him otherwise the Plea was ill that every Traverse must have an Inducement That if upon the whole Plea it did not appear that King Car. 1. parted with this Advowson 't is naught That if by the Parties own shewing it was manifest to the Court That the King continued seized and what he doth further shew no ways contradicts it he could not traverse the dying seized and therefore a Demurrer was most proper and consequently upon this Demurrer they were let in to affirm that nothing passed from the King by these Letters Patents of Car. 1. Then it was argued That this Grant was void because it was to a Person then Esq that Tunc Armigero can have Reference only to the time of the Letters Patents that a Man cannot be a Knight and an Esq at the same time that Knight is part of his Name and the Title of Esq is drowned in that of Knight that the old Books are thus 7 Hen. 4.7 14 Hen. 6.15 21 Edw. 4.72 2 Inst. 594. 666. Hutt 41. Bro. Tit. nosme 33. 1 Cro. 372. That 't is true if a Deed of Feoffment be made to a Man by a wrong Name and Livery be thereupon had 't is good but all the Books make a difference between that Case and where it is by Deed where the Operation is altogether by Deed Then was cited
Feodary and Officiary as Earl Marshal of England which have a Relation to an Office or Land for such are Transferrable over and such Dignities as are only Personal Inherent in the Blood and only favour quasi of the Reality of which no Fine can be levied as 't is of an Annuity to a Man and his Heirs no Fine can be levied 2. A Dignity was neither subject to a Condition at the Common Law nor intailable by the Statute de Donis c. nor barrable by the Statute of Fines Indeed in Nevil's Case something which favours of the contrary Opinion is said but the Question there was Whether 't was forfeitable by Treason And therefore the present Question is very forreign to the Matter there debated A Dignity differs from other Inheritances being an Honour Personal affixed to the Blood cannot be forfeited by a Non-performance of a Condition except that Tacite Condition in Law and consequently cannot be intailed and tho' the Title of a Viscount be of a Place yet it is only Titular for it is often taken from the Sirnames of Families 3. The Title of Viscount c. is not so much a private Interest as a publick Right for Peers are born Counsellors of State and one part of a Senatory Body and therefore cannot be renounced without the Consent of all those who have interest in it they cannot without the Consent of the whole Body whereof they are so considerable Members cut themselves off from the Body and so the Objection of quilibet potest Juri suo renuntiare is easily answered 'T was further argued on the same side That 1. An Honour goes not according to the Rules of the Common Law nor is it governable by them it is not therefore pertinent to argue from those Rules which hold in Cases of other Inheritances for a Dignity descends to the Half-blood there is no Coparcinership of it but the Eldest takes the whole a Fee-simple will go to a Noble-man without the word Heirs 1 Inst 27. It differs from Estates in Land in the Intrinsick Matter as well as the Manner of the Limitation because it is given for two Reasons for Counsel and Defence and it is a Civil Interest appointed by the Civil Constitution of the Realm which goes with the Blood and is inherent in the Blood insomuch that it is agreed on all hands that it can't be transferred to a Stranger and till Nevil's Case 't was doubted whether forfeitable for Treason if a Lord die his Son shall be introduc'd without the Ceremony usual at the first Creation a Peer's eldest Son and all Minors sit behind the Chair of State to prepare them for the Sitting in the House as Members and because they have some Title to the Honour they are called Nobiles Nati for the first time they fetch breath they have Nobility in them So that he that Surrenders by Fine must not only extinguish his Estate in the Honour but also the Nobility of his Blood 2. Every Lord is not only a Lord for himself but also hath a Right of Peerage and is a Peer of the Realm and therefore a Peer for every one of the House and therefore hath the Priviledge to demand his Writ Ex debito Justitiae and is to be tried by his Peers in Capital Crimes and that appears farther from a Matter which happened in this House 16 Car. 2. There was an Order mentioning the Bishops to be Lords of Parliament not Peers at which the Lords wondering ordered a Committee to examine the reason of it which proves that Lord is not so high nor inclusive as Peers So that if the Fine have any Operation it takes away not only his Right but also the Right of the House of Lords 3. The trial of Baron or no Baron upon Issue in any Court of Judicature is by the Records of Parliament but if a Fine may be levied in the Common Pleas the Trial is drawn ad aliud Examen and must then be by the Records of that Court The Clerk of the Parliament always certifies if he be a Baron because he hath the Record before him but he cannot certifie he is no Baron because he hath not the Record thereof before him 4. No Fine can be levied of a thing Personal as an Annuity to a Man and his Heirs but a Dignity is a thing Personal and so he took notice of the difference betwixt the Honours of Peerage which are Personal and the Honours that are Feodary and Officiary which have reference to an Office or Land 5. He did argue ab inconvenienti that this Opinion can be no Inconveniency to the Crown but the contrary makes Nobility a meer Pageantry by putting it into the Hands of a weak and angry Father to dispossess an hopeful Son of that which is his Birth-right The Titles of Esquire and Gentleman are drowned in the greater Dignity of that of a Peer and when the greater are gone the other must go with it And then from being a Nobleman to day he and the rest of his Family must be below all Nobility and be called Yeomen or Goodman Villers to morrow which may bring great Confusion to a Noble Family and all its Relatives and surely this House will not put such a publick Disrespect on such a Family by agreeing to so unjust an act of one Man And that which was most relied upon was a Resolution of this House in Stafford's Case Anno 1640. which no Man without Indecency can question it passed not sub silentio or obiter but upon debate neither could it be any way invalid upon account of the Times for it was in the Infancy of that Parliament and that wherein a Peer's Case who sits now in this House was judicially before them and therefore there is no reason to shake that Judgment more than any other Judgment of that time My Lord Cooke in his 4 Inst Chapt. of Ireland is of Opinion that Honours cannot be extinguished but by Act of Parliament Then as to the Precedents that have been urg'd on the other side there are none directly to the Point for as to Nevil's Case there are very few Cases cited there aright and are not to be look'd upon as Law The Case of my Lord of Northumberland in 3 4 Phil. Mar. was by way of Creation and so was the Case of Dudley And Dugdale in his Baronage of England pag. 270. gives an account of it and the rest of the Precedents are above Two hundred years old which passed sub silentio and are not to be vouched unless they were disputed The first is Bigod's who in the time of Edw. 1. surrendred the Honour of Earl-Marshal of England to the King who granted it to him in Tail This Honour is Officiary and therefore nothing to the purpose and the Surrender was made thro' fear Walsingham 95. The next is the Earl of Pembroke's Case who in 8 Edw. 4. was made Earl in Tail and by this he had the
sufficient Orders to charge the Executor of P. S. with he prefers his Bill against the Appellants and by her Answer she own'd the Receipt of the two Sums but by order of P. S. and afterwards upon hearing of the Cause The Court declared that there appearing no positive orders from P. S. for these two Sums the Appellants ought to pay the Principal Interest and Costs And a Decree was made accordingly And now it was argued on the behalf of the Appellants That this was not just because the Respondent never paid any Money to any Body while Katharine boarded with him or afterwards but by the Order and upon the Credit of P.S. and charged it to his Account and the Respondent did not pretend but that all was repaid him excepting these two Sums that the Respondent and Katharine had never any Account or Dealings together upon her Credit and 't is to be presumed that the Respondent hath charged these Sums upon the Account of P. S. and not to her Account because the Receipts are so worded and that Katharine had released P. S. on their accounting together and therefore she could not charge the Executor of P. S. On the other side it was argued That here was a Badge of Fraud in the Appellant K that upon her Account with P. S. no mention was had of these Sums that the Debt was originally hers that she was obliged to pay it either to Slaughter or to Haynes that not having paid the same to Slaughter and Slaughter having released to her she was discharged from all Demands on that side and therefore 't was the more reasonable it should be answered by her to the Respondent that tho' the Credit might be at first given to Slaughter yet the Money being paid to her and not by her paid to Slaughter Haynes had a fair Claim against her even to avoid circuity of Suits for if this were otherwise 't would only turn Haynes upon the Executor of Slaughter and that Exeecutor upon Katharine the Appellant again in Equity to set aside the Release and to have an allowance of these Sums and that in Justice and Equity the Charge was placed upon the proper Party who at first was the Debtor for what she thus received And accordingly the Decree was affirmed Dormer Sheppard al' versus Joseph Wright al' APpeal from a Decree of Dismission of a Bill preferred in the Court of Chancery The Case was thus The Appellants did in the Year 1693. load on Board the Ship Vnion at Gallipoly 210 Tuns of Oyls of which Ship the Appellants were Owners and the Respondents loaded on Board her at Messina 85 Bales of Silk upon Freight by Contract both to be delivered at London The Ship homeward bound was chased into Malaga Mould by one of the Thoulon Fleet who were three or four days in sight then stood in for that Port as if designed to attack the Fort and thereupon the Master discoursed the Owner's Factor who sent him off a Lighter to save what they could of the Ships Cargo and because the Silk was of the greatest value the Silk was put on board the Lighter and carried ashore and to come at the Silk for it lay beyond the Oyls they were forced to rummage the Ship In saving of which and some small part of the Oyls many hours were spent and by the Seamen only and at Night the French left the Port whereupon no more was landed But about six days afterwards the French Fleet appeared again before Malaga and then all Endeavours were used to save the Oyls but were prevented by the Boats which the French Men of War sent into the Harbour and the Enemy forced them to their Guns and when they could defend the Ship no longer they bored holes to sink her but the Oyls kept her from sinking and the French took her and carried her away The Bales of Silk were afterwards put on board another Ship and delivered to the Respondents at London for which they paid the Freight c. The Appellants pretending that they ought to have a share of the Silk which was saved in proportion to the value of the Ship and Oyls which were lost they exhibited their Bill in Chancery to enforce the Respondents to come to an Average with the Appellants for the loss of their Ship and Oyls And after Examination of Witnesses on the hearing of the Cause the Bill was dismissed And it was argued on the behalf of the Appellants That this Dismission was not justifiable by the Rules of Equity for that it must be agreed If Goods are thrown overboard in stress of Weather or in danger or just fear of Enemy in order to save the Ship and rest of the Cargo that which is saved shall contribute to a Reparation of that which is lost and the Owners shall be Contributors in proportion and that there was the same Reason here that by preferring the salvage of the Silk being the best of the Cargo before the Oyls the Owners were deprived of the same opportunity for the salvage of the Oyls that as the Sea-law in Extremity directs the Master to preserve the best of his Cargo and the Goods saved ought to contribute to the loss of the Goods Ejected so where one is preferred before the other in case of Extremity there being not time to land the whole average is just and reasonable And as to the six days time there was then no apprehension of danger and consequently the Master could not justifie the landing of any thing after the reason of their Fears were removed That the prudence of their Master in saving the Silk before the Oyls ought not to be to the prejudice of the Owners interest the Oyls lying next to be preserved that the pretended neglect of the Master in not landing them during the absence of the Enemy is no Excuse because then there was no danger that the saying that the loss of the Ship and Oyls did not contribute to the salvage of the Silks is no reason seeing the salvage of the Silk which had otherwise been lost deprived the Owners of the same opportunity for the salvage of the other Goods that in such Adventures as the danger is common so ought the loss or damage to be common and equal that the Master is equally intrusted by and for all and were it otherwise it had been the Duty and will be the Interest of all Owners of Ships to order their Servants in Extremity to preserve their own Goods that the Silk being of the greatest value it was a National Service to preserve that before the Oyls and therefore equitable that all who embark in the same Bottom should share alike in the Service done for Salvage c. And further that if in Extremity the safety of the best of the Ships Cargo is not preferrable before that of the meaner value it will be of ill consequence and therefore the Sea-law provides first for the Safety of the best of the
Cargo and the Master acted accordingly and that 't is the Opinion of those who are learned in the Maritime Laws That where Freighters Goods are equally in danger and a like opportunity for the salvage thereof if the safety of the one be preferred and the other comes to be lost such preference obliges the Goods preserved to contribute to those which are lost it being a General Rule in Causes Maritime That one Man's Interest ought not to suffer for the Safety of anothers On the other side it was argued with the Decree That this Pretence was new that 't was a Notion unpresidented that the Rule of Averidge went only to the cases where the loss of one Man's Goods contributed to the safety of anothers as by Lightning the Vessel c. and not to this Case that here each Man was to undergo the Peril of his own Goods that in case of Damage to Goods within the Vessel other Goods were not contributory but the Owner must endure his own loss and had only his Remedy against the Master if it were occasioned by his Defect or Miscarriage that the reason of Averidge was a meritorious Consideration in the common Case because there the loss of one did actually save the other but here was no such thing The loss of these Oyls did not save the Silk nor did the saving of the Silk lose the Oyls for if the Silk had not been saved the Oyls had been lost for they were so bulky that they could not easily be removed without further time and if part only be saved 't is to the advantage of the Owner and where all cannot be saved at a time the Benefit is accidental to him whose Goods the Master's discretion directs to be saved And in this case here was no such Commodity as could contribute to the loss of a Ship if it had been kept on Board for the Silk if on Board had not assisted to her sinking But besides here were six or eight days between the landing of the Silk and the seizing of the Ship by the French in which time all the Oyls might have been landed and thereby both them and the Ship saved and the apprehension of the Danger could not so soon be removed by losing sight of the Enemy in the Morning and therefore there was no reason for the Master immediately to forbear landing his Oyls Therefore 't was prayed that the Appeal might be dismissed and the same was accordingly done and the Decree of Dismission below affirmed Whitfield Ux ' al' Appellants versus Paylor Ux ' al' Respondents APpeal from a Decree in Chancery The Case was thus Sir Lawrence Stoughton a young Baronet in Surrey having an Estate of near 1000 l. per Annum was a Servant to the Respondent Mary the Daughter of one Burnaby a Brewer reputed to be very rich Upon the first Proposal of Marriage Burnaby did agree to give 5000 l. certain and insisted to have a Jointure of 500 l. per An. settled and that she should have the Inheritance of the Jointure if he died without Issue Sir Lawrence did refuse to agree to this but afterwards he renewed the Treaty himself and accepted of Articles for payment of 5000 l. Portion and made a Settlement of a Jointure of Lands worth 500 l. per Annum and likewise made another Deed in the nature of a Mortgage of all his Estate as well the Reversion of her Jointure as the rest for securing the payment of 5000 l. to her in case Sir Lawrence died without Issue and died within a Fortnight after Marriage without Issue The Lady Stoughton prefers her Bill and prays the Appellants might be fore-closed of the Equity of Redemption on Failure of Payment The Appellants exhibit their Bill to be relieved against this as a Fraud and upon hearing of these Causes before the Master of the Rolls the Appellants were decreed to pay the 5000 l. by the first Day of Hillary Term 1695. without Interest but with Costs And in default the estate to be sold to raise it with Interest from that Day And upon a re-hearing before the Lord Keeper his Lordship confirmed the Decrees and gave a Twelve-months further time for payment And now it was argued for the Appellant That it was proved in the Cause that Sir Lawrence was a sickly weak Man that on his Death-bed he declared he had made no such Agreement but that the 5000 l. was to pay his Debts and no part of it was to return to his Wife and his Wife present and not contradicting it that it did not appear that he had any Counterpart of this Deed or that he ever advised or acquainted any of his own Relations with it and the Draught of the Deed was confessed to be burnt And further that the Agreement in its own nature was unreasonable that she should have both Portion and Jointure and that one was a merit for the other but that both should be vested in the same Person the Portion returned and the Jointure enjoyed was very hard and therefore to be set aside That Equity was to relieve against such pretended Agreements as things done without any Consideration inducing them and therefore void On the other side 't was insisted on for the Decree That the Man was of Age that there were two Treaties of Marriage which shews a deliberation that here was no mis-representation or imposition the Bargain in it self might be upon good reason the Gentleman being sickly and the Money was to be returned only upon a Contingency of his dying without Issue that in case of his having Issue the Agreement was common that perhaps she had the worst on 't under all Circumstances that all Bargains are not to be set aside because not such as the wisest People would make but there must be Fraud to make void their Acts and his forgetting that he had done such an Act when on his Death-bed is no reason for to annul it and the Marriage had been a good Consideration for a Jointure of it self And reasonable or unreasonable is not always the question in Equity if each Party was acquainted with the whole and meant what they did much less is it sufficient to say that 't was unreasonable as it hapned in event for if at the time 't was a tolerable Bargain nay if at the time this Bargain was the meaning of the Parties and each knew what was done and neither was deceived the same must stand And accordingly the Decree was affirmed Thomas Arnold Appellant Versus Mr. Attorney General Respondents Matthew Johnson Esq Respondents Thomas Bedford Gent. Respondents APpeal from a Decree in Chancery The Case was thus One Edmund Arnold Proctor being seized in Fee of the Mannor of Furthoe to the yearly value of 240 l. per Annum and also of some Personal Estate but having no Child or Brother living made his Will in writing and thereby amongst other Legacies to many other Persons he gave to the Appellant by
the Name of his Kinsman Thomas Arnold the Sum of 40 s. all to be paid out of his Personal Estate and then proceeds in these words Being determined to settle for the future after the death of me and my Wife the Mannor of Furthoe with all the Lands Woods and Appurtetenances to charitable Vses I devise my Mannor of Furthoe with the Appurtenances unto Sir Lionel Jenkins Kt. William Dyer Matthew Johnson and Thomas Bedford and to their Heirs and Assigns for ever upon trust that they or their Assigns after the death of him and his Wife should pay and deliver yearly for ever several particular Sums to Charitable Vses therein mentioned All the Particulars amounting in the whole to 120 l. per Annum and charged nothing further on the said Mannor but the Expences of the Trustees in the Execution of the said Trust The said Arnold soon affter died the Wife is also since dead Sir Lionel Jenkyns and William Dyer also dead In Trinity 1692. the Attorney General prefers a Bill against the Appellant as Heir at Law to settle and establish the said Charities and to enforce the Trustees to act or to transfer their trust Estate To which they answer and the Heir by his Answer claimed as Heir at Law the Surplus of the Charity Estate over and above what would satisfie the yearly Payments expressed in the Will and the Charges of executing the said Trust upon a Reference to a Master to ascertain the Court of the yearly value of the Mannor he reports it worth 240 l. per Annum and worth the same at the time of making the Will And on hearing the Cause the Court declared That all the Profits of the Premisses ought by the purport and intention of the Will to be applied to the Charities therein mentioned and that the Appellant Arnold the Heir at Law is totally excluded from the Surplus with direction how the Surplus should go in augmentation of some of the Charities nevertheless in case the Appellant should Seal and Execute to the Trustees a Release and Conveyance of the Premisses according to the Decree then he to have his Costs out of the Sale of Timber and that the Trustees be indempnified And it was argued on behalf of the Appellant That this Decree was not equitable Some Questions were made about the distribution of the Surplus amongst only some of the Charities and about the value but a Surplus was agreed to be in the Case and 't was chiefly insisted upon that the Surplus ought to go and be to and for the use of the Heir at Law for that the Estate is not increased by any subsequent or accidental Improvement and so not like the Case of Thetford School but here at the time of making the said Will was and now is of a good value beyond the Sums given and was so known to be by the Testator and the particular Charities given by the Testator are particularly and expresly named and limited and do amount only to so much as is less than the value of the Land and thS urplus is not disposed of and consequently ought to be the Heirs For as at the Common Law in a Will what is not given away must descend whether you speak of Land or the interest in it so in Equity whatsoever Trust or part of a Trust is not declared and expressed the same shall be for the benefit of the Representative of the Testator either Heir or Executor as the Case may happen Then these Bequests or Devises being particular and express they do and will controul and expound nay restrain and qualifie the meaning of general precedent words That Expression of his being determined to settle his Mannor to charitable Uses will be qualified by the Particulars afterwards as is Nokes's Case in 4 Rep. and many others in the Books Besides 't is not accompanied with any term of Universality that excludes the Construction contended for and if it had been so largely expressed those general words of his designing to settle the whole may be intended only as a Security that the particular Charities may be certainly answered And by such Construction all the words of the Will may be satisfied and then the Trustees may convey the Premisses to the Heir at Law and take Security for the same saving and reserving all the said Charities devised with all reasonable Charges and Deductions without prejudice to the Will of the Testator or to the said Estate which must nevertheless be liable to answer and make good the same so that there can be no Damage done to any of the Parties or Interests concerned by this Construction nay it is the adding a further Security for their payment Now it is plain he designed the Sums given to the particular Uses and no more for that they are all so particular and express and it is pursuant to the Rules of Law and Equity in all doubtful Cases to adjudge in favour of the Heir at Law and not to extend the general words of a Will to enlarge a Charity beyond the intent expressed especially against a near Relation and Heir as this is viz. his Brother's Son Besides the Testator was bred a Civilian and as such knew how fully to express himself if he had intended the Overplus to go in increase of the Charity Or if he had intended them more then is mentioned he would have declared himself in such manner as should exclude all doubt On the other side it was argued That the Testator's intent plainly appeared by his Will to dispose all his Estate wholly to charitable Uses and that the words of the Will were sufficient to carry the whole Estate to that purpose and that it did not appear by his Will that 't was his intent to give his Heir at Law any thing out of his Real Estate that his determination to settle his Mannor with the Appurtenances was to settle the whole that what is not disposed of in Particulars is to be directed by the Court of Chancery that that Court hath done right in directing it in augmentation of the Charities mentioned because the Testator's intent was most in favour of those which are so mentioned That if the Query were askt What shall be done with the Surplus if any The Answer is natural viz. I am determined to settle the Mannor that is the whole on Charitable Uses That the Testator by his Will expressed some Care for his Sister and for John Boncher his Nephew and other his near Relations but neither by any Expression or Implication pointeth at any provision designed for his Heir at Law but for the Excluding him of all Pretences hath bequeathed him 40 s. and no more that the other is to contradict his plain Intent 't is to make a new Will for him contrary to the determination which he saith he had made And accordingly the Decree was affirmed Sir Richard Dutton Plaintiff Versus Richard Howell Richard Grey and Robert Chaplain Executors of Sir John
notice that such Process did not lye and if any Man hath by our Law any Estate Right or Priviledge by any particular means he is bound to take notice of all the Conditions and Qualifications annexed thereto And the Reason is just because the same means by which he had notice of the Benefit gives him notice of the restrictive Limitation and Penalty and so was it held in the Case of Fry and Porter By our Law no Benefit can accrue to a Man by a Judgment given on a Thing arising extra potestatem Curiae in case of a particular and limited Jurisdiction as in the Case of Kingston upon Hull March 8. which held Plea of Debt upon a Bond made extra Jur ' c. and a Jud ' and Capias executed and an Escape and no Action lay for the Escape because all was void and coram non Judice In the same Book March 117 118. Dye and Olive's Case in False Imprisonment Plea that he was Serjeant at Mace belonging to a Court of Record and that a Warrant was directed to him to Arrest the Plaintiff pro quodam Contemptu and held not good because not shewn in what Action and how within the Jurisdiction and if not within it 't was coram non judice and void argued by Rolls and Maynard Then 't was argued That this was a limited qualified Power that the Visitor was a Creature of the Founders and if it had been the Heir of the Founder he had been as much bound and restrained by the Statutes as a Stranger and tho' the Law should be agreed to be as is pretended that it appoints a Visitor yet still whether he be the Heir or Nominee of the Founder he is an Officer only within the Limits and Rules of the Foundation and the Statutes made thereupon As he hath a Visitatorial Power only over this Colledge so he hath it only after the manner in which 't is given to him If the Founder had made no particular Visitor but yet had appointed that the same should be visitable at such a time and in such a form he himself had been bound by these Rules and if he would have been so confined with much more or at least with the same Reason ought his Nominee for cujus est dare ejus est disponere and every Argument which hath been urged for the Rector's being subject to the Rules of the Foundation may likewise be applied to that of the Visitor He that made the Visitor may restrain shape and modifie the Power which he gives him He might have made him Visitor only once in his Life or only upon Request and have left all other Jurisdiction to the Rector and Fellows But further here he is found to be Visitor only secundum formam statut ' vigore statut ' and to execute those Statutes and that which makes him a Visitor makes him such thus and thus qualified and no otherwise whatsoever Power or Authority the Name or Office of a Visitor may import ex vi termini no Man can say but this Visitor is controuled by the Statutes which make him so now had there been no Statutes he had never been Visitor then these Statutes making him a Visitor upon particular Terms and Conditions Times and Occasions extra these Terms and Conditions he is no Visitor at all this seems plain and natural So that if he exceeds the Bounds prescribed to him as Visitor he doth not act as Visitor for all Powers Authorities and Jurisdictions especially such as are created by private Persons must be executed according to the express Institution or plain meaning of the Party that created them and according to the Circumstances with which he hath circumscrib'd them So is the Rule in Berwick's Case 5 Rep. 94. and 1 Inst 113. and 258. An Executor is an Officer or Person instrusted which is taken notice of by the Law yet in his Creation he may be limited quoad the Estate in one Country or quoad one Particular and he can't intermeddle any further but Administration shall be granted as to the rest Then 't is observable That this Statute Visitor is not a Court of Record nor any Court at all but rather like an Arbitrator under certain Directions he can neither meddle at another Time or with other Matters or in other Manner then what is prescribed But admitting it a sort of Judicature here 's no Appeal or Writ of Error or Prohibition or Mandamus lies nay the Visitor himself cannot relieve against his own Sentence or restore the Party deprived the next day but the Place being vacant a right of Election accrues to the Fellows 't is therefore unreasonable to suppose him not restrained or that his Acts if exceeding the Limits and Rules set him shall be conclusive and binding This is like a Lay-Hospital 't is not a Religious Body tho' some call it mixt and in case of Temporal Lay-Offices there must be some Remedy at Law as is 13 Rep. 70. so is Dyer 209. and 3 Inst 340. Where no Appeal is allowed another Examination must be admitted and thus seems the 8 Assis pl. 29. tho' it hath been quoted on the other side If the Warden of an Hospital be irregularly deprived he shall have his Remedy at Law and 13 Assis 2. to the same effect Bagges's Case 11 Rep. repeats the same Case which shews Coke's Opinion to concur with it and tho' an Assize doth not properly lye yet the meaning is he shall have Relief i. e. such Suit at Law as is proper to his Case The same Distinction is allowed in Dr. Sutton's Case Latch 229. And that a Remedy is given by the Law in this Case of a Temporal Property seems to be plainly affirmed in the Statute of 24 Hen. 8. cap. 12. And further Tho' strictly and properly it were not of Common Law connusance yet it falling incidently to be a Question upon trial of a Title the Court before whom that Suit depends must examine that incident as in case of an Issue lawfully joyned in Marriage or not the Trial shall be by Certificate of the Ordinary but if it be a Question upon the Trial of a Title to Land the Matter shall be tried and judged without Certificate The wisdom of our Law hath been such as very rarely to trust any of the Courts of Justice with the final determination of matters of Law in the first Instance and 't would be strange that this Case of a Visitor should stand single by it self Besides to prevent a failure of Justice the Law doth of necessity admit of several other provisions and methods of Examination or Tryal than what the subject matter or person would properly in their own nature require especially in point of remedy and relief as appears in Dormer's Case 5 Rep. 40. and 1 Inst 54. 2 Roll's Abridg 587. now here is no other remedy nor other way of trial for Deprivation is not triable by Certificate but only in case of an Ecclesiastical
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
not against him here 's no Fraud or ill Practise c. Then if the nature of the thing be considered the Demand is of a Right not arising by Agreement of Parties but by Operation of Law if the former Chancery might perhaps construe and enlarge it so as to fulfil the utmost Intention but here her title is the Marriage the Seisin and Death of the Husband And there never was a time when if her Lord had died she could have had immediate Dower for even the Term had been pleadable by an Heir of Law to a Writ of Dower Now what doth give her an Equity against the Respondent Her Claim is by from and under her Husband as having a Right to a Proportion of what he had that is a Right by the Law where is the Equity that should improve or mend this Right Perhaps it must be agreed That if the Husband had just before Marriage made a long Lease on purpose to prevent Dower and the Woman expecting the Priviledges which the Common Law gives to Women married had surviv'd him Equity might have interposed and yet even this was practised by a Reverend Judge of Equity Mr. Serjeant Maynard who made such Lease to his Man Bradford the day before his last Marriage but here is no such Action 't was an old Term created by the old Earl of Warwick As to the Case of the Mortgages The Feme intituled to Dower is let in because the Person who is the Mortgagee hath no Interest but to have his Money and Equity is to execute all these Agreements but never where there is a Purchaser or where the Interest of the Mortgage is assigned to the Heire Between her self and the Mortgagee she comes in place of her Husband and the Husband could redeem and so may the Wife but against a Purchaser she has no more Equity then her Husband had and that is none at all If she hath a Legal Title antecedent to the Purchasers as Marriage and Seisin where there 's no Term standing out that shall prevail and Equity shall not help the Purchaser against her so where the Purchaser hath a Legal Title as by a Term precedent Equity cannot relieve her And whereas it was objected That there was no Case adjudged in Chancery against the Appellants pretence the Answer is plain The Common Law is against it and if no Precedent in Equity the Common Law ought to stand 'T is nothing but Precedent that Consecrates half the Decrees in Equity And no Man will say that ever any Woman was endowed in Equity of a Trust Estate If a Man hath a Term for Ten thousand years and be entirely and properly owner of it tho' the same be equal in value to a Feesimple for the Reversion after it is worth little or nothing yet no Dower can be claimed in Equity nay If the Husband be seized together with another Person and not sole seized yet no Dower even in Chancery can be claimed against the Survivor So that Equity doth not exceed the Rules of Law in advancing the Right of Dower 'T is true unless Fraud be in the Case according to the Case of Nash and Preston in Cro. Car. 190 191. Relief in Equity shall not be given against a Legal Title to Dower yet 't is as true that where the Law doth not give Dower Equity will not unless there be Fraud and Covin used to prevent it and then common Reason enjoyns a Court of Conscience to Relieve If any Allowance had been in the Purchase upon Consideration of the Title to Dower the same would have been a very material Argument but in this Case there was none And therefore 't was prayed that the Dismission might be affirmed and it was so Dominus Rex versus Baden WRit of Error to Reverse a Judgment given in the Court of Exchequer and affirmed upon a Writ of Error in the Councel Chamber before the Chancellor with the Assistance of the two Chief Justices The Case upon the Record was only this One Allen outlaws one Clerk in Debt on a Bond in Mich. 1690. on the Seventh of Jan. 1690. by virtue of a Special Capias utlagatum and inquisition thereupon seizes Clerk's Lands into their Majesties hand In Hillary Term following the Outlawry and Inquisition are certified into the Exchequer and Allen obtains a Lease under a Rent In Mich. 1692. Baden comes and pleads that in Mich. 4 Jac. 2. he recovered a Judgment against Clerk for 1080 l. that in Trinity Term 1691. he took out an Elegit and had a Moiety of the Lands extended and therefore prays that an amoveas manus may be awarded Mr. Attorney replies That the Lands were seized by virtue of the Outlawry and Inquisition long before the Elegit was sued and therefore c. Baden demurs and Judgment for the King It was argued on behalf of the Plaintiff in the Writ of Error that this Judgment was Erroneous for that there 's a vast difference between an Outlawry in a Civil and one in a Criminal Process That in a Civil Action 't is only a Civil Process for the benefit of the Party and 5 Edw. 3. cap. 12. the King cannot pardon an Outlawry at the Suit of a private Person that 't is only to help one Subject to his Debt from another that the King hath no Advantage by it and so no need of a Preference by reason of the Prerogative that at Common Law no Man could be outlawed that now it is purely given for the sake of the Plaintiff that the common Practise is to make a Lease or grant a privy Seal to the Party That by this Outlawry the King hath no Interest in the Land he cannot cut down the Trees 9 H. 6.20 that he cannot Plow or Sow but only collect and receive the Profits which arise out of the Land Bro. tit Outlawry 36. tit Patents 3. that the King hath not the possession of the Land which shews it not to be a Forfeiture to the King but it remains the Parties still in respect of Ownership he may make a Feoffment 21 Hen. 7.7 2 Inst 675. Hob. 122. by the Judgment the Lands were bound tho' the Title was not compleat till the Elegit was sued out a monstrans de droit or Petition did lye and now the same Matter may be pleaded 'T was further argued That great Mischief must follow if an Outlawry upon Civil Process may defeat a Judgment that Judgments with release of Errors are taken and used as common Securities that this is most plainly a device to avoid them that this can be no Security if an Elegit may not be sued but prevented by the Party himself for here it is his own default not to avoid this Outlawry by Appearance that no act of the Debtor could alter the Security and there 's no reason why his neglect should that this Contest is between Baden and Allen and not between Baden and the King Allen's Suit was but just begun and this is
meerly upon his Suit If the Person had been taken upon this Capias he had been the Plaintiff's prisoner and if he Escapes the Plaintiff had an Action for it Yelv. 19. and the supposed Forfeiture is only for his Interest 3 Cro. 909. And by this practise the King's Prerogative is to assist one Subject to deceive another By the Law a Judgment is preferrable to a Bond and binds the Land which a Bond doth not till Judgment upon it now here the first is to be postponed by reason of the King 's supposed Prerogative which is only a Right in the King for the use of the Party to have the Profits 2 Rolls Abridg. 808. vide Stamford 57. 1 Inst 30. Hardres 101 176. 1 Inst 202. Latch 43. That the Elegit hath Relation to the Judgment and so becomes Prior to the King's Title like the Relation of a Bargain and Sale to an Inrolment and as a strong Argument for it the words in the Writ of Elegit were repeated and enforced quo die Jud ' reddit ' fuit which shewed a relation to that day and consequently did affect the Lands at a time when the King had no Interest in it On the other side it was argued with the Judgment That this was the common Practise of the Court of Exchequer in this Case that the Course of a Court is the Law of that Court and to be taken notice of by all other Courts that 't is time out of mind and consequently of equal duration with the Common Law and always deemed to be parcel thereof that the Records and Experience of the ancient Clerks were both concurring to prove it the common Usage in the Exchequer that when Lands are seized into the K's hands by virtue of an Outlawry and Inquisition it was never known that the King's hands were removed by force of an Elegit sued afterwards tho' upon a Judgment precedent that it hath been their constant practise to continue the pernancy of the Profits in the King notwithstanding such Elegit that 't would be of dangerous Consequence to alter the same by a new Opinion that 't is not so very material whether this practise be more reasonable then another but whether it be certain and known for if it be so 't is much better to have it continued then changed because of the Confusion which must follow by shaking the Rights and Possessions enjoyed under the former Practise That 't is not in many Cases so considerable what the Rule is as that it be fixed and understood and therefore no reason to alter it or at least not without the use of the Legislature for by the same colour that some Judges of Parts and Segacity shall think fit to swerve from their Predecessors others of less capacity may pretend to do the same and so nothing but uncertainty would ensue But besides this is not meerly a Course of the Court 't is also agreeable to the Rule and Reason of the Laws Baden hath no interest in the Land 'till he sues his Elegit whereas the King's Title to the Land was compleat by the Outlawry and Inquisition which was prior to the Elegit and a Judgment of it self doth not affect the Land till Election made a Judgment at Law is only an Award of the Court ascertaining of the Debt and declaring that the Plaintiff shall recover In it self it doth no more assect the Land then a Bond 't is true when the Suit is ended by a Judgment the Party may resort to an Elegit for his Execution if he thinks fit and can find any thing subject thereto At the Common Law before the Statute of Westminst 2. cap. 18. a Subject upon his Judgment for Debt or Damages could not have Execution by taking away the Possession of his Adversary's Land because that would hinder the Man's following of Husbandry and Tillage which then was reckoned beneficial to the Publick So is 2 Inst 394. and Sir William Herbert's Case 3 Rep. 11 12. nothing but a Levari or Fieri facias then by the Statute sit in Electione illius and Coke in his Comment on those words saith After the suing of an Elegit he can't have a Capias So that by him the suing out of the Writ is the determining of his Election 2 Inst. 395. Foster and Jackson's Case Hob. 57. Even the Elegit it self doth not when sued out immediately touch the Lands for if that the Chattels be sufficient to pay the Debt and it so appears to the Sheriff that thereby he may satisfie the Plaintiffs Demand then he ought not to extend the Land and this appears by the frame of the Writ as 't is in the Register 299. 2 Inst 395. which shews that no Title can be acquired to the Land till the same be Extended The Elegit cannot by Law have relation to the Time of the Judgment so as to avoid the King's Title for relation is only a Fiction and Fiction shall never bind or prejudice the King in his Right much less in his Prerogative and no Case can be shewn where a Relation shall conclude the King nor is it any Objection That this is a Prerogative for the Benefit of a Subject for in truth all the Prerogatives are for the Advantage and Good of the People or else they ought not to be allowed by the Law Besides Practise and Reason there 's express Authority in our Books for it as the Case of Masters versus Sir Herbert Whitfield 1657. Hardres 106. And if there were no Book for it the Practise is enough for the printing of a Case doth not alter or change the nature of it 't is as much Authority if it be not published as when it is so Masters recovered a Judgment against Sir Herbert Whitfield and after the Judgment Sir Herbert was outlawed at another Man's Suit and his Lands seized into the Protector 's hands and afterwards Masters took out an Elegit and the whole Court was of Opinion that the Lands being seized into the Protector 's hands before the Elegit was sued out there could not be an amoveas manus awarded altho' the Judgment was prior to the Outlawry this is the same with the Case at Bar and tho' it may be surmised That this was an Opinion vented in Evil Times yet 't is well known that excepting their Criminal Proceedings in those Times the Law flourished and the Judges were Men of Learning as Mr. Justice Twisden hath often affirmed upon the Bench. 'T was further urged That Prerogative was to be favoured that 't was a part of the Law 2 Inst 296. especially when 't was used as in this Case to help an honest Man to his Debt that confessing of Judgments was oftner practised by Fraud to cover Mens Estates then Outlawries were to defeat just Judgments That if this Judgment was just and honest 't was his own default not to sue an Elegit immediately Then were cited many Cases to prove the King's Prerogative as Fleetwood's Case
behalf of the Appellants That the half Blood ought to have but a half share That in the Case of Inheritances the whole Blood was preferred and that tho' such Rule could not govern intirely in this Case yet it shewed which ought to have the preference that the true Reason of Distribution was this The Law was to give in like manner as he might reasonably be supposed willing to have given his Estate in case he had made a Will and had not been surprised by a sudden Death that every Man was supposed to favour his next of Kin that the Statute of Distributions did the same thing and then that the whole Blood was nearer of Kin because did partake of both the Stocks from whence he came that the Relation or Kindred in this Case intirely came from the Parents that this was not an Alliance by his own Contract as Marriage or the like that the Inclination was supposed to arise to them from the Natural Love he bore to the Common Ancestors that such Inclination could never be supposed equal where the Party was only of the half Blood And much to this effect and many Arguments drawn from the Civil Law were urged in favour of the Appellant and several Presidents cited where it had been judged since the Statute for the half Blood to have but a half share by Sir Richard Lloyd On the other side it was argued That the half Blood is as near a Kin to the Intestate as the whole Blood and ought to have an equal Share of the Personal Estate with the whole Blood that the Party must be presumed equally inclined to each Parent that the Brother of the half Blood was as much a Brother as one of the whole that the whole Blood was preferrable in Descents but that was only upon account of a Maxim in the Law whereas here they are equally of Kin the whole Blood is no more a Brother than the half in the same Relation there can be no difference or degree it might as well be pretended to have a difference allowed upon the account of Seniority that Opinions and Practise had been with the Decrees that this hath been taken to be the Law in Westminster-hall Before the Statute 't was held that a Sister of the half Blood is in equal degree with the whole Brown versus Wood Allen's Rep. 36. and so cited in Smith's Case Mod. Rep. 209. So in the Case of Milborne and Milborne 30 March 1671. before the Lord Keeper Bridgman W. M. had by Will devised all his Lands in Trust to pay every Brother and Sister he had living 40 l. per Annum each and he had several Brothers and Sisters both of the half and whole Blood the Brothers of the whole Blood did oppose the payment of the 40 l. per Annum to those of the half Blood but 't was adjudged and decreed that they are equally entituled to the 40 l. per Annum a piece and enjoyed accordingly Farmer versus Lane and Nash in Chancery 26 Octob. 1677. declared and adjudged by the Lord Chancellor Nottingham That the half Blood are in equal degree of Kindred with the whole Blood and ought to have an equal Share of the Personal Estate The like was in the Case of Stapleton and the Lord Merion against the Lord Sherrard and his Lady in Chancery by Judge Windham 13 June 1683. the Case was thus Robert Stapleton had a Sister of the whole Blood and a Brother and Sister of the half Blood and died Intestate Administration was granted to his Wife the Lady Sherrard who claimed a Moiety of the Personal Estate by the Custom of the Province of York and a quarter of the other Moiety by force of the Act for Distribution of Intestates Estates and adjudged that the Wife should have only one Moiety and the other Moiety to be divided equally between the Brothers and Sisters both of the whole and half Blood This Cause was Reheard the Seventh of May 1685. by the Lord Guilford upon the Certificate of his Grace the Lord Archbishop to whom it was referred to certifie the Custom of the Province of York who certified that the Wife shall have only a Moiety and the other Moiety shall be divided amongst the next of Kindred and adjudged that the half Blood shall have an equal Share with the whole and so the former Decree was confirmed The same was adjudged by Mr. Justice Charlton June 30. 1685. in the Case of Pullen and his Wife against Serjeant in the Court of Chancery The like was amongst other things declar'd and decreed by the Lord Jessryes Febr. 19. 1686. in the Case of the late Lord Winchelsea against Noraliff and Wentworth upon which Hearing were present and assisting the then Lord Chief Baron Atkyns and Mr. Justice Lutwich and so was it Nov. 20. 1689. between Stephens and Throgmorton in Chancery It hath likewise been held so in the Ecclesiastical Court and accordingly adjudged by Sir Richard Raynes upon Solemn Argument by the most eminent Counsel both of the Civil and Common Law in the Case of James Storey Febr. 26. 1685. and in the Case of George Hawles by the same Judge upon June 1. 1687. Then it was urged That the Statute of Jac. 2. for reviving and continuance of several Acts of Parliament therein mentioned proves this for 't is enacted That if after the Death of the Father any of his Children shall die intestate without Wife or Children in the life time of the Mother every Brother and Sister and the Representatives of them shall have an equal share and that a Brother of the half Blood is a Brother to the Intestate as well as a Brother of the whole Blood and therefore ought to have a share and an equal share with the rest And upon consideration of all those Presidents and there being no Practise against it except that of Sir Richard Lloyd's it was prayed that the Decree might be confirmed and it was confirmed Lee Warner Versus William North. APpeal from a Decree of the Lord Chancellor which over-ruled the Exceptions taken by the Appellant to a Decree made by Commissioners for Charitable Uses concerning a Gift by Bishop Warner's Will and the same was received and the Parties ordered to answer And each side being heard by their Counsel the Decree was affirmed Vide the Statutes concerning Charitable Uses and the Delegates and query how they differ And whether an Appeal doth not lye upon a Sentence by Delegates as well as on a Decree of Chancery upon a Decree of Commissioners for Charitable Uses Briggs versus Clarke WRit of Error on a Judgment in B. R. affirmed in the Exchequer Chamber upon a Verdict in Debt for the Escape of one Cook and none appearing for the Plaintiff in the Writ of Error the Judgment was affirmed with the increase of Forty pounds in Costs Vide the Case of Ellison and Warner Mich. 18 Car. 2. B. R. 2 Keeble 91. Whether a Writ of Error lyes in Parliament
specially That if Parol Evidence or a naked Averment should be admitted then they find to such Uses But here 't is like finding the Badges of Fraud without finding the Fraud it self or a Demand and Denial without finding a Conversion upon neither of which can the Court judge the Thing to be a Fraud or a Conversion And for these and other like Reasons it was prayed that the Judgment might be reversed It was argued on the other side with the Judgment That this Fine thus levied was not to the use of the Husband but of the Wife and her Heirs that the Fine is not to the Uses in the Deed of the 29th but controuled by that of the 31st 'T was agreed that if there be a Deed to levy a Fine and in pursuance thereof a Fine is levied to the Person of the Lands and at the time no Proof shall be allowed that the Fine was to any other Use but if it be in case of a subsequent Deed then Averment may be against it but by the making of a precedent Deed all Parties are estopped to contradict it unless there be another Deed of equal Nature to controul that Where the Deed is punctually observed there 's no liberty to aver the contrary but where 't is not pursued the Averment is consistent Where it doth vary yet if nothing doth appear to the contrary there the fine shall be construed to be to the Uses of the Deed by construction of Law a Wife is bound by the Husband's Declaration and if the Fine be in pursuance of the Husband's Deed 't is as binding to her as if she were a Party An Infant cannot avoid a Fine where there was a Deed agreeable but by reversing it Then 't was argued That here was such a Variance as did allow of such Averment that 't is true the Deed of 29. had been a good Declaration of the Uses of this Fine notwithstanding the Variance if the Writing of 31. had not been made but there being a Variance that is admissible that this Fine now found differs as much from that in the Deed as if it had been levied at a time after that levying it before makes it not the same The Woman perhaps here did agree to levy a Fine at this distance of time that she might in the mean while have a competent Provision out of her Husband's Estate for her Joynture then when she levies this Fine at a different time she doth not do it in pursuance of the first Deed. Then 1 Rep. 76 99. 3 Bulstr 231. 2 Rolls Abridg 251. 2 Cro. 646. 2 Rolls Abridg. 799. Savil 124. 1 Leon. 210. 3 Cro. 210. 1 And. 240. were quoted and either answered or applied to this Point of Variance Then 't was said That there was a difference between a Fine that varies from a precedent Deed and a Fine that is followed with a subsequent Deed or Declaration of Uses If there be a subsequent Declaration the Heir at Law cannot aver that 't was to the use of the Conusor and his Heirs or to any other use then what is in the Deed the Party himself or his Heirs cannot aver it but they are estopped by this Deed tho' subsequent however a Stranger is at liberty to make such Averment But if a Deed be precedent and the Fine varies and is not the same there none are estopped neither the Party himself his Heir nor a Stranger because the Fine stands alone without any Deed referring to it and declaring the uses of it ' Then 't was urged That this second Deed was sufficient to declare the uses of this Fine If the use arise upon or by transmutation of the Possession as by Fine or Feoffment 't is sufficient without any Deed the use arises only upon the Parties Declaration or Appointment If without a transmutation of Possession there must be some Agreement binding the Party upon some Consideration for the use being founded in Equity the Chancery would never relieve where there was no transmutation of Possession or Agreement upon Consideration and if in Consideration of Blood it must be by Deed because the Consideration is not binding without it Moore 's Rep. Callow and Callow If this Writing of 31. had expresly declared that it should enure to the Husband and his Heirs upon such a Contingency this had been a good original Declaration of the use and would have altered the Estate because of the transmutation of the Possession and as 't is now penned 't is a good Writing sufficient to declare the uses of the Fine any sort of Agreement whereby the Parties intent appears is sufficient an use is an equitable thing and if it appears to have been intended that is enough 2 Leon. 14. Brent's Case any Agreement between the Party that hath the Estate and him who is to have it may raise an use in this Case a Bargain and Sale of the Lands carries the use tho' no mention of it 8 Rep. Fox's Case Crossing and Scudamore In this Case there was an Agreement betwixt Husband and Wife that he should have the Lands if he made a Jointure A Bargain and Sale tho' not inrolled a Charter of Feoffment without Livery shall raise the use of a Fine levied between the same Parties therefore this Writing is a good Appointment But suppose it were not so of it self 't is sufficient to controul that of the 29th for 't is agreed thereby that all Deeds shall be revoked which shews plainly that the Fine was not to be to the uses mentioned in that Deed especially when it varies from it A Parol Declaration of the Mind of the Party will be enough to controul and hinder the raising of an use by the Deed and Fine where different and if so then the use here is to the Wife and her Heirs Then supposing the Variance frivolous and immaterial this Writing of the Husband and Wife is a good appointment the Trustees or Conusees of the Fine need not to be Parties to the appointing or declaring of the uses The Indenture precedent is but directory and if there be another direction under Seal before the Fine it must over-rule the first Writing of it self seems enough 2 Cro. 29. 3 Cro. 571. But suppose an Indorsment on the Indenture revoking one use before the Fine be levied would not that controul it This is rather like a last Will and the last before the Fine must stand A Covenant to stand seized must have all the necessary Parts of a Deed so as to have been obligatory in Chancery before the Statute but a meer Declaration of uses need not be so formal The use declared by the 29th was always revocable till the Fine was levied and this is sufficient both to revoke the last Declaration and to declare new uses this amounts at least to a Deed-Poll and therefore sufficient Then were cited Moore 22 512. Latch 139. and many other Authorities And upon the whole 't was prayed that the Judgment should
be affirmed and it was affirmed Sir Edward Hungerford and John Hill Executors and Devisees of Sir William Basset deceased Plaintiffs versus Edward Nosworthy Defendant WRit of Error to Reverse a Judgment in B. R. upon a Special Verdict in Ejectment by Hitchins the Lessee of Nosworthy against Sir William Basset Defendant for the Mannor of Lanrock and other Lands in Cornwall wherein upon Not Guilty pleaded and a Trial at Bar the Jury find That Sir Henry Killegrew was seized in Fee of the Lands in question and on the 12th of November 1644. made his Will in writing which follows in these words I Henry Killegrew c. and so they set forth the Will whereby Sir Henry Killegrew devised the Premisses to Mrs. Jane Berkley his near Kinswoman for Life with Remainder over to Henry Killegrew alias Hill Sir Henry's Natural Son in Tail and makes Mrs. Berkley sole Executrix They further find that after the making of that Testament and before the time when c. viz. about the Feast of St. Michael in the Year 1645. Condidit fecit aliud Testamentum in scriptis sed quid fuit content ' in eodem ult ' mentionat ' Testamento vel quale fuit purportum sive effectus inde juratoribus praed ' non constat And that Sir Henry on the 29th of September 1646. died seized of the said Lands that Mrs. Jane Barkley Devisee of the said Will in 1644. by Lease and Release conveyed to Mr. Nosworthy's Father and that the Father died in 1684. that Mr. Nosworthy is Son and Heir to him that Sir William Basset is Cosin and Heir to Sir Henry viz. Son and Heir of Elizabeth Basset Daughter and Heir of Sir Joseph Killegrew elder Brother of Sir Henry the Testator that Nosworthy the Lessor of the Plaintiff entred and made the Lease in the Declaration c. But upon the whole Matter whether the Said Testament made in writing 1645. was a Revocation in Law of the said Devise of the said Lands to Mrs. Berkley they are ignorant and pray the Judgment of the Court Et si And upon this Judgment was given for the Plaintiff in the Ejectment And now it was argued That the Judgment was Erroneous that this last Will could not be taken to be a duplicate of the former but must be deemed a Revocation that no Will is good but the last that every Will is revokable till death that the making of another doth import a Revocation of all former ones tho' it be not so expresly declared in writing for it must be the last or nothing that this Conveyance by Will was anciently a Priviledge by the Civil Law for People in Extremis who had not the time or assistance necessary to make a formal Alienation and chiefly intended for Military Men who were always supposed to be under those Circumstances and therefore the Ceremonies and number of Witnesses required of others were dispensed with as to Soldiers but now the Rules for Military Testaments as they are called are allowed in most Cases that as to Lands by our Law was a Priviledge only given to some Boroughs and Places within the Kingdom and particular Custom gave the liberty of disposing Lands or Houses by Will and that by nuncupative Will or Parol without writing so is Bracton lib. 4. fol. 272. Fleta lib. 5. cap. 5. Potest legari catallum tam hereditas quam perquisitum per Barones London Burgenses Oxon 1 Inst 111. that then came the Statute of Hen. 8. and impowers a Devise by a Man's last Will and Testament in writing but still 't is by his last Will. And so is Littleton sect 168. If divers Wills the latter shall stand and the others are void 1 Inst 112. In truth 't is plain Law the first Grant and the last Testament In Swinb 1 part sect 5. p. 14. no Man can die with two Wills but he may with divers Codicils and the latter doth not hinder the former so long as they be not contrary Another difference there is between Wills and Codicils If two Testaments be found and it can't be known which is first or last both are void but the latter countermands the first tho' there be a Clause in the first that it shall not be revoked and tho' an Oath were taken not to revoke because the Law is so that the very making of a latter doth revoke the former So is Liuwood's Provincial ' de Testamentis Justice Dodderidge's Office of Executor published by Wentworth 29. A verbal Will revokes a former written Will Forse and Hembling 4 Rep. 60 61. Plowd 541. Perkins sect 178 179. and sect 478. The 2 Hen. 5.8 is full to this purpose There 's an Action by an Executor against two Executors and they plead a Testament whereby they are made Executors and the Plaintiff replys that he afterwards made another and himself Executor and held that by the second the first became void Now the meaning of these Books cannot be that a Will expresly revoking is the only Will that can make a Revocation nor is it that a Contrariety or Repugnance between the one and the other is necessary to make a Revocation for tho' there be no new Will made yet a Revocation may be by word of Mouth as 2 Cro. 49.115 1 Cro. 51.3 Cro. 781. nay a void Bequest shall revoke a Will so shall a Deed that hath no effect as Feoffment without livery a Devise to J.S. or to a Corporation when there is no such will do it so that 't is not the Contradiction between the disposal which revokes for that which is no disposition at all will do it wherefore the meaning of the Authors cited is somewhat else and it can only be this That there is somewhat particular in a Will to that Instrument of Conveyance more than to any other that even the making of a new Will is a sufficient Revocation the words are plain by the making a new Will the former are all destroyed for there can be but one last And when a Man makes and declares a new Will that new Will must be presumed to contain his whole Mind concerning the disposition of his Estate declaring his Will imports thus much and excludes all other When a Man would alter part of his Will there 's a proper Instrument for it called a Codicil which is known in the Law as well as that of a Will here 's nothing found of a reference to the former to judge it otherwise would confound the use of Wills and Codicils and the difference between them 'T is true that a Man may make partial Wills of several parts of his Estate and all may stand together but then they must be declared to be Wills concerning particular things and they are but several pieces of the same Will tho' written in different Papers but then in pleading one of them you must not generally say he made ult ' voluntatem but ultimam voluntat ' of such a thing but here 't
the Alienation even of an Ideot and then after Office the Practise is to Issue a Scire facias to him in possession or to the Alienee and so is Fitzh tit Scire facias pl. 2. 106. All these Methods prescribed by the Law would be useless if the Acts themselves were void Then 't is as certain that the Office must be found during the Parties Life and during the insanity and not afterwards If there had been an Office 't would only avoid it with a prospect as it would be in case of an Heir after death Even after an Office the King cannot have the Profits from the time of the Alienation which shews it not it not void from the beginning If a Suit be against an Ideot after Inquisition the Ideot cannot plead it but the King shall send a Supersedeas to the Judges suggesting the Inquisition so that even then the Party himself cannot avoid it As to the other way of avoiding it by the Heir it must be by Writ or Entry and till Entry or Writ the Act remains good But here 's no Contest with the Party himself or with his Heirs but with a Remainder Man This Act of Surrender was no tortious Act it wrought no discontinuance there was no Trust in him to preserve the Contingent Remainder A Feoffment with livery is allowed not to be void and yet that may do a wrong by discontinuance c. As to the pretence that a Warrant of Attorney to make livery is void that doth not reach this Case for here 's an Act done by himself which would have passed the Estate as by and from himself if he had been of sound Mind Then 't was desired that the other side would shew any such Case as this whereas multitudes of Gifts Grants Releases Bonds and other Specialties sealed and delivered by the Party himself are allowed to be good and the same reason holds for a Surrender made in Person and there 's no difference between a livery made in Person and a Surrender the Act being Personal and not by another under his Authority makes the livery good and so it ought to be here 18 Ed. 4.2 Perkins sect 139. And 't is observable in 39 Hen. 6.42 per Priscott upon the Inquisition 't is reseized and revested into the Interest of the Ideot and consequently of the King and if revested 't was once out of him Now here 's no prejudice to the Man himself by this Opinion he is taken care of and his Acts avoided by the King on his behalf and his Heirs may avoid them But that Strangers should take notice of them as void was denied and therefore prayed that the Judgment should be reversed On the other side it was argued with the Judgment That this never was a Surrender that 't was against sense and reason to allow the Acts of a Madman a Person distracted to be valid to any purpose that in case of livery it had been allowed to be only voidable by reason of the solemnity and notoriety of the thing but in case of a Deed or a Thing passing only by Deed 't was otherwise and Bracton Britton Fleta and the Register were cited where 't is declared who can take and who can alien and that a Madman cannot alien and Fitzh is of Opinion that the Writ of dum non fuit compos may be brought by himself that there was a notion scattered in the Books that such Acts are only voidable but the reason of the Law is otherwise 39 Hen. 6.42 hath the distinction that Feoffment with livery is good but if livery be by Warrant of Attorney 't is void If it be a Feoffment with Warranty by Deed and possession delivered with his own hands yet the warranty is void because the Deed is void Perk. 5. The Deed of a Mad-man is void if he grants a Rent 't is void If an Infant makes a Warrant of Attorney 't is void so is Whittingham's Case A Deed and a Will are not to be distinguished and by the same reason that the one is void the other is so Finch 102. is general All Deeds of a Man of non sane memorie are null 12 Rep. Shulter's Case 'T is an offence to procure a Deed from him The Civil Law makes all his Acts which he doth without consent of his Curator to be void A Madman is taken pro absente 'T is a Rule unaccountable That a Man shall not stuitifie himself that he shall not be able to excuse himself by the Visitation of Heaven when he may plead Duress from Men to avoid his own Act. 'T is absurd to say That a Deed procured from a Man in a Fever or in Bethlehem shall be valid to any purpose Fitzherbert who was a good Lawyer ridicules the pretence and maintains That he himself may avoid such Act. Then were cited 2 Inst 14. Lloyd and Gregory 1 Cro. 501 502. Perkins tit Grant 13. Then it was said That in this Case there needs not much Argument the Reason of the Thing exposes the pretended Law And the Judges have declared that this Surrender is void the word amens or demens imply that the Man hath no Mind and consequently could make no Conveyance Wherefore 't was prayed that the Judgment should be affirmed and without much debate it was accordingly affirmed Henry Earl of Lincoln by Susanna Countess of Lincoln his Mother and Procheine Amye Appellant Versus Samuel Roll Esq Vere Booth Hugh Fortescue Esq and Bridget his Wife al' Respondents AApeal from a Decree of Dismission in Chancery The Case was thus Edward late Earl of Lincoln who was Son and Heir of Edward Lord Clinton the only Son of Theophilus Earl of Lincoln deceased being seized in Fee of the Mannors of c. after his Mothers decease who is yet living and of other Lands of about 3000 l. per Annum part of the ancient Estate of the Family And designing that in default of Issue-Male by himself his Estate should go with the Honour made his Will 20 Sept. 34 Car. 2. and thereby devised the Premisses to Sir Francis Clinton for Life Remainder to his first and other Sons in Tail-Male with many Remainders over to such Persons in Tail-Male to whom the Honour might descend and directed that his Houshold Goods at ...... should remain there as Heir Loomes to be enjoyed by the next Heir-Male who should be Heir of Lincoln and made the said Sir Francis the Appellants Father and after his Death Earl of Lincoln Executor On the sixth of Novemb. 36 Car. 2. Earl Edward made another Will in writing in like manner with the alteration of some Personal Legacies and afterwards in April 1686. and in Dec. 1690. did republish his Will Then Earl Edward sold part to Richard Wynne Esq for 24491 l. 3 s. 6 d. and mortgaged the Premisses in question to him for 12200 l. Then Earl Edward by Deeds of Lease and Release dated the 27th and 28th of April 1691. conveys his whole Estate to
only the signification of a Man's purpose how his Estate shall go after his death and tho' it be solemnly made in writing signed published and attested yet if he do any intermediate Act whereby it must be necessarily inferred that such Purpose and Intention of his did not continue the Consequent must be that what was done before as to such Will is totally defeated and unless it be set up anew by a Republication 't is as no Will. The Case of Mountague and Jeffryes 1 Rolls Abridg. 615. and Moore 429. proves this If a Conveyance at Law shews an Intent different from the Will as to Lands 't will be a Revocation tho' such Conveyance be not perfect to all purposes Hodgkinson versus Wood Cro. Car. 23. 'T is a Revocation tho' the Owner should be in again as of his old Reversion The Case of Lestrange and Temple 14 Car. 2. reported in Sid. 90. 1 Keble 357. is stronger but this is stronger yet because 't is not to the old use but limited in a different manner 't is a qualified Fee and to be determined upon the qualifications taking effect and so cannot be the old Estate and if it were yet 't is a Revocation and there 's no Circumstance in the Case that can direct a Court of Equity to differ from the Law and therefore it was prayed that the Decree of Dismission might be affirmed and it was affirmed John Fox Gen ' Plaintiff Versus Simon Harcourt Arm ' Defendant WRit of Error on a Judgment in B. R. The Case was upon a Special Verdict in an Action of the Case upon an Indebitus Assumpsit for Moneys received to the Plaintiff's use brought there by Harcourt versus Fox which Verdict finds the 37 Hen. 8. cap. 1. intituled a Bill for Custos Rotulorum and Clerkship of the Peace Then they find that 1 Will. Mar. intituled An Act for enabling Lords Commissioners for the Great Seal to execute the Office of Lord Chancellor or Lord Keeper and several Clauses therein concerning this Matter Then they find that John Earl of Clare was by Letters Patents dated the 9th day of July Anno 1 Will. Mar. according to the 37 Hen. 8. made Custos Rotulorum for the County of Middlesex and set forth the Letters Patents in haec verba Then they find that the Office of Clerk of the Peace for this County being void the Earl of Clare by writing under his Hand and Seal dated 19 July Anno primo did nominate appoint and constitute the Plaintiff Mr. Harcourt to be Clerk of the Peace for Middlesex for so long time only as he should well demean himself therein and the Instrument was found in haec verba Then they find him to be a Person resident in the County capable and sufficient to have and execute the Office that he took upon him the execution of the said Office and before he did so he at the Quarter Sessions for the said County in open Sessions took the Oath required by the late Act of this King and the Oath of Clerk of the Peace and did do and perform all things necessary to make him a compleat Officer and that during all the time he did execute the sald Office he demeaned himself well Then 't is found That on the fifth of February Anno tertio the said Earl of Clare was in due manner removed from being Custos and William Earl of Bedford by Letters Patents dated the sixth of February was made Custos according to the 37 Hen. 8. and those Letters Patents are also found in haec verba Then they find an Appointment in Writing dated the fifteenth of February by the said Earl of the said Fox to be Clerk of the Peace for the said County to hold the said Office for and during the time the Earl should enjoy and exercise the said Office of Custos so as he well demean himself therein They likewise find Fox to be a Person capable c. and that he took the Oath and did the other things requisite to qualifie himself for the said Office that he did thereupon enter on the Execution of the said Office and during the time that he executed it he well demeaned himself therein and did take the Fees belonging to the said Office which they found to be to the value of five shillings Sed utrum c. Et si c. Et si c. Upon this Judgment was given for the Plaintiff below And it was now argued for the Plaintiff in the Writ of Error That this Judgment ought to be Reversed And first it was said that whatsoever the Common Law was as to ancient Offices could be no Rule in this Matter Many and most of those were for Life but my Lord Coke says That the Office of Chancellor of England could not be granted to any one for Life because it was never so granted the like of Treasurer So that Custom and nothing else can govern in those Offices But here can be no pretence of its being a Common Law Office for the Common Law knew no such thing as Justics of the Peace to whom they say he is a Clerk That the first Statute which makes Justices hath no mention of Clerk but 't was meerly an Incident some Person of necessity was to officiate in that kind And where he is called the Justices Clerk it can only be that he was one appointed by them to make and write their Records for them and 't is probable that in ancient time he that was their Clerk was Custos Rotulorum and intrusted with the keeping of the Records then it coming to be an honorary thing to be Custos he that was the most eminent for Quality amongst them was appointed to that Trust and then he appointed his Clerk under him For there 's no ancient Statute or Law that empowered the Chancellor to make a Custos but he making out the Commission of the Peace might very well name one of them to be Keeper of the Records and to have the first place amongst them And such Person might very well appoint his Deputy or Servant who in time came to be Clerk of the Peace We have no certain but this is the most probable Account of the thing Then the Statute of 37 Hen. 8. recites That the Chancellor had much perverted the Institution by assuming to make Custos's for Life and so the Clerks of the Peace were for Life likewise The end of that Act was not only to remove ignorant Persons for the Common Law it self would turn any such out of Office if he be not able to perform the Duty of it but the Grants for Life were the great Grievance and therefore to remedy that Mischief the Custos must be appointed by Bill signed with the King 's own hand and at his pleasure removeable and the Clerk of the Peace to be appointed by the Custos and to continue only during the time of the others continuing to be Custos This tho' not
yet doth further agree That this Parish-Church was never presented to by any Person at all But he insists upon it That now it is void the King hath a Right to present to it by force of his Prerogative upon this Avoidance tho' the Act saith That the Bishop shall present after the Decease of Dr. Tennison or the next Avoidance The Query is whether the King's Prerogative can operate upon this Vacancy of this Benefice thus filled and thus avoided against the express Words of an Act of Parliament It will be necessary to repeat the Words of the Act and they are to this Effect That all that Precinct or District of Ground within the Bounds and Limits there mentioned from thenceforth should be a Parish of it self by the Name of the Parish of St. James's within the Liberties of Westminster and a Church thereupon built is dedicated by the Act to Divine Service and that there should be a Rector to have the Care of Souls inhabiting there and then after a full Commendation of the Merits and Services of Dr. Tennison in that Place the now Reverend the Bishop of Lincoln It doth Enact and Ordain him to be the first Rector of the same and that the said Doctor and his Successors Rectors of the said Parish should be incorporated and have a perpetual Capacity and Succession by the Name of the Rector of the said Parish Church and by Virtue of that Act should be enabled by the Name aforesaid to sue and be sued to plead and to be impleaded in all Courts and Places within this Kingdom and should have Capacity to hold and enjoy purchase and acquire Lands Tenements and Hereditaments to him and them Rectors thereof for ever over and above what is given and settled by that Act to any Value not exceeding 200 l. per Annum Then it Enacts That the Patronage Advowson or Presentation after the Decease of the said first Rector or Avoidance thereof shall or should belong and appertain and by that Act shall or should be vested in the said Bishop of London for the time being and his Successors and in Thomas Lord Jermyn and his Heirs for ever Then it Enacts That the first Rector after such Decease or Vacancy shall be presented or collated by the Bishop of London for the time being and the next to succeed him shall be presented by the Lord Jermyn and his Heirs and the two next succeeding turns by the Bishop and his Successors and the next turn to the Lord Jermyn and his Heirs and then the like Succession of two turns for one to the Bishop and his Succession and of one turn to the Lord Jermyn and his Heirs for ever after This is the Act. Now 't is to be considered That this Law doth bind the King and would bind him in point of Interest if he had been Patron of St. Martins in Right of his Crown and if a Right or Interest of the Crown shall be bound by an Act of Parliament a Prerogative shall be in no better plight It cannot be said That he shall not be obliged by it because not named for tho' and where he is not named he is bound by Multitudes of Statutes according to the 5 Rep. 14 and 11 Rep. 68. He is bound by all Acts generally speaking which are to prevent a Decay of Religion and so he is bound by Acts which are for further Relief or to give a more speedy Remedy against Wrong It is no Objection that this Law is in the Affirmative for that it is introductive of a new Law in the very Subject that is created de novo Then before this Act the King had no Right over this and if he hath now any over it he can only have it how when and as the Act gives it not contrary to it then the Bishop was Patron of the Place out of which the Parish is created And the Bishop can claim no other Right than what the Act gives him Bro. tit Remitter 49. 't is so agreed 1 Rep. 48. and in 2 Rep. 46. if Lands be given in Fee to one who was Tenant in Tayle his Issue shall not be remitted because the latter Act takes away the force of the Statute de donis Suppose he had been Enacted to be Patron of a Living to which he had a former Right there could be no Remitter because as to particulars the Act is like a Judgment and estops all Parties to claim any thing otherwise than according to the Act and yet Remitter is a Title favoured in the Law then if he have this only by force of this New Act and another Person should present in his turn so given 't would be an Injury if a Subject did it and consequently the King cannot do it for the Prerogative which this Act gives or which the Common Law gives is not yet come to take place Tho' this be an Affirmative Law yet according to the Rule taken and agreed in Slade's and Drake's Case Hob. 298. being introductive or creative of a new thing implies a Negative of all that is not in the purview and many Cases are there put to this purpose Then also it being particular and express it implies a Negative because this and the other are inconsistent But First 'T is observable all Prescriptions and Customs are fore-closed by a New Act of Parliament unless saved Suppose there was an Act of Parliament in Force before this viz. That the King should present yet another Statute Enacting somewhat new and inconsistent will carry a Negative and if so in Case of a former Act there 's almost as much Reason for a Prerogative It must be agreed That a Man may prescribe or alledge a Custom against an Act of Parliament when his Prescription or Custom is saved or preserved by that or another Act but regularly a Man cannot prescribe or alledge a Custom against any Act of Parliament because 't is matter of Record and the highest and greatest Record which we know of in the Law 1 Inst 115. Suppose Money were by the Law payable annually and an Act comes and says it shall be paid Quarterly by even and equal Portions at the four Feasts for the first Year this will certainly alter the Law 'T is true That a consistent Devife or Statute is no Repeal or Revocation but if a new Act gives a new Estate different from the former this amounts to a Repeal Fox and Harcourt's Case The same Rule holds even in Case of the King as in the Archbishop of Canterbury's Case 2 Rep. 46. and agreed to in Hob. 310. the Query was if the Lands came to the King by 31 H. 8. cap. 13. or by the Stat. of Edw. 6. and objected That the latter was in the Affirmative yet held That it came by the latter because tho' they were Affirmative Words yet they were differently penn'd and the last being of as high an Authority as the first and providing by express Words That by Authority of that Parliament
the Grantee for 't is plain from the whole Contexture of the Deed that the Defendant was to have nothing in the Term till the Death of the old Man and his Wife It was undoubtedly the meaning and design of all the Persons concerned that the Defendant only should have the Residue after his decease Then that the Law will not permit this is plain from the Books for that 't is uncertain how much or if any of the term will remain or be in being at the death of the Grantor or Assignor that the Law rejects such a small or remote Possibility that Man's Life in the Eye of the Law is of so great a regard that 't is presumed to be of a longer duration than the longest term of years That this is an old Maxim upon which Thousands of Properties do depend that tho' some Mens reason may not approve it 't is not to be altered but by the Legislature that the Law first prefers Inheritances or Estates descendible then Freeholds or Estates for Life then Chattels real or Terms for Years The Law values and regards what a Man and his Heirs shall enjoy before that which he himself only can enjoy and what he himself may enjoy during his Life before what he may have only for a certain limited time the which he may by any supposal survive These are known Truths 32 Assis 6. Plowd 521. If a Man be possessed of a Term for 100 years and grants so many of them as shall remain at the time of his death this is void for the uncertainty otherwise if it be by Devise because there nothing takes effect till death and then 't is certain how many years he is to enjoy it 'T is true a Lease of Land for Forty years to commence after a Man's death is good because 't is certain that the Land shall be enjoyed for Forty years but here non constat in certain that this Deed could take effect for a year an hour or at all Bro. tit Lease 66. Plowd 520. A Man possessed of a Term grants it to another during Life 't is as much as during the whole Term tho' never so long because Life is presumed longer so if he grant all the Term that shall remain after his Death 't is all void because he reserves to himself the whole for a greater includes the less and for Life is the longest of the two These things are not to be disputed If both Premisses and Habendum had had this Limitation the other side must have agreed it to have been void ab origine and nothing to have passed by this Deed. But then the Objection is That the whole Term passes by the Granting Part and then the Habendum is void because 't is repugnant To this it was answered That in a Deed each part hath its proper Province The Office of the Premisses is to express the certainty of the thing granted the Habendum is to express the quantity and limitation of the Estate 1 Inst 6. Plowd 196. Lofield's Case 10 Rep. 107. And according to Littleton's Text Sect. 370. all the parts of the Indenture are but one Deed in Law from whence it was inferred That the Habendum is never to be rejected but when there is a manifest express and particular Contradiction never when the Habendum doth apparently shew the Parties Intention Here the Lessee for years grants totum Cottagium suum c. The Grantee or Assignee if there be no Habendum hath but an Estate at will whereas if he grants all his Estate and Interest in such a Cottage there the whole Term passeth This is the express Opinion in Griffin's Case 2 Leon. 78. Case 102. and there said to have been lately so adjudged in Wynnibank's Case in B. R. Now here 's nothing in the Premisses but what is general not the whole Estate granted nor is it said for how long time he shall enjoy it and therefore the Habendum cannot be said to be repugnant or contradictory because the first is not express In Stukely's Case Hob. 170 171. upon the Case of Grants and Exceptions is the learning of Habendums laid down if it had been a Grant of all his Estate Habendum after his Death there the Habendum shall not frustrate the Grant but if the Premisses give no certain or express Estate there you may alter and abridge nay you may utterly frustrate it by the Habendum these are the words of the Book Then was cited 2 Rolls abr 66. and 1 Inst 48. b. and the same Case of Hodge and Crosse in 3 Cro. 254 255 where 't was ruled That the Habendum tho' void shall controul the implied Limitation in the Premisses 't was a Feoffment of Lands in London Habend ' to the Feoffee and his Heirs after the Death of the Feoffer And 't was argued in that Case That the Habend ' was void but resolved That nothing passes because it appears to be the Intent of the Party that nothing should pass but in futuro for the Premisses could pass nothing but by Implication and that was nothing at all because the Intent was to pass nothing presently and tho' there were Livery made yet that Livery could operate only secundum formam Charte and therefore the whole was void the reason was because the first was General tho' the Law would have given a particular Estate for Life by the Livery yet because the Party gave none expresly by particular Words the Habendum was not to be rejected many of the Rules in Buckler and Harvey's Case 2 Rep. 55. are applicable to this And altho' there be a Difference where the Deed passes the Estate and where Livery or other Ceremony is requisite as to many purposes yet still the Distinction is where the Premisses do not give all the Parties whole Interest or some other particular Estate but is General there the Habendum shall not be rejected as repugnant 2 Rep. 23 24. Baldwin's Case As to the Words together with the said recited Lease that can only mean the Indenture or Writing for the Adjective recited implies the Intent to be such Recited signifies only a Rehearsal or Repetition of Words spoken or written before and so is Recitare Testamentum Calvin's Lexicon and 't is joined with the other Writings and Evidences concerning the Premisses and doubtful Words are to be construed according to the Nature of the things expressed and mentioned with them Lease in it self imports only the Conveyance or Instrument of Conveyance not the Interest in the thing conveyed if by Writing 't is called a Deed or Lease in Writing if otherwise a Lease Parol Thus is it explained in Blunt's Law Dictionary and in Knight's Case 5 Rep. 55. where all the Parts of it are described A Man may give away his Lease and yet retain his Estate or Term he may deposite it as a Pawn or Pledge and the Party in whose Custody 't is so lodged may maintain Trover or Trespass if it be taken from
the rest of the Shares to be enjoyed according to his Will and discharge the Fee-Farm Rent with which they are charged And in case he shall not do so he gives the said Shares he should otherwise enjoy by the Will to and amongst all other his Children and their Heirs equally to be divided amongst them Simon Middlâ—ton died seized the 20 July 1679. and after his death Rebecca having attained her Age of 21 Years died Hezekiah after seisin of his Share died under 21 Years and unmarried Anne one of the Five younger Children which Five claimed the said Hezekiah's Share by Lease and Release settles the fifth part of the Share late her Brother Hezekiah's upon her self and the Plaintiff Bennet Swayne whom she afterwards married and after to the Children that should be between them Remainder to the right Heirs of the Survivor of them two Anne died without Issue and Bennet Swayne after her death received the Profits of that fifth part of Hezekiah's Share to the value of 20 l. That Benjamin Middleton was the only Brother of the whole Blood and Heir of Hezekiah Et si c. Upon the arguing of this special Verdict the Court below was of Opinion That Benjamin was intituled to Anne's Share of Hezekiah's Part as he was Brother and Heir of Hezekiah viz. That by the Will the Fee-simple and Inheritance of a Thirty-sixth Part or Share of the New-River Water was given to and vested in each of the youger Children and that on the Death of Hezekiah one of the younger Children unmarried under One and Twenty Years of Age by the Clause whereby the Shares of the youger Children dying before Twenty One and unmarried are given to the surviving Children Share and Share alike the five Survivors became Tenants in Common and each was seized of a fifth part only for Life and not in Fee That the Reversion of Hezekiah's Share expectant on the deaths of the younger Children descended to the said Benjamin his Brother and Heir and that he on the death of Anne ought to have enjoyed that Fifth-part in Possession and therefore the Profits of it received by Swayne were due to Benjamin and Judgment accordingly given there for Benjamin And now it was argued That this Judgment was erroneous for that by Virtue of the said Devise the said Anne had an Inheritance in her part of Hezekiah's Share for these Reasons 1. It is well known and agreed That a Part or Share in the New-River is an Inheritance and therefore the Devise of all that Part or Share to any Person is a Devise of that Part and Share to such Person and his Heirs and is as much as if a Person being seized in Fee of Lands should say in his Will he devises all his Estate in those Lands to J. S. it could be no question but such a Devise would convey the said Lands to such Devisee and his Heirs 2. The Share of Hezekiah was given to him and his Heirs proportionably charged with the payment of the Fee-Farm Rent to his Majesty and with 100 l. per Annum to Henry M. and his Heirs and also with 150 l. to his Brother Benjamin and being thus charged upon his dying before Age or Marriage his Share with the Profits thereof thus charged is given to his younger Brother and Sisters the Survivor and Survivors of them Share and Share alike Then 't is observable that the Fee-Farm Rent payable to the King his Heirs and Successors is 500 l. per Annum upon which account 't would be very difficult to conceive that the Testator by this Devise of the deceased's Part to the Survivors Share and Share alike did intend to such Survivors only an Estate for Life when at the same time he subjects and charges it to and with the proportionable payment of the said yearly Fee-Farm and the 100 l. to H. M. and his Heirs which are Rent-Charges in Fee and cannot reasonably be understood to be charged on Estates given barely for Life Besides The Point here is upon the Construction of a Will and the Testators true Intent and Meaning in any part that is obscure ought to be collected out of any other part or words of the Will that may explain it Now it being plain that Hezekiah's Part was a Fee-simple and thus charged it seems to be as plain that the very Inheritance of that Part should upon his death go and remain to the Survivors Share and Share alike that is to say That they should be Tenants in Common in Fee-simple of that Part the same being thus chargable with the two Rents and with the 150 l. to Benjamin for otherwise this Devise over which was designed in their favour and for their benefit might have turned to some of their Losses and Prejudice for they might have paid the 150 l. to Benjamin and have died before they were re-imbursed out of Hezekiah's Share had the same been only an Estate for Life and it cannot easily be supposed that he intended his youngest Children by the second Wife should have a better Estate in his Shares of the New-River Water devised as aforesaid then the younger Children by the first Wife had but that their Shares in it should be equal but by this Construction Benjamin by the second Venter must carry away Anne's Share from her Sisters and Brother of the first Venter here 's no need of the common Care in construing Wills not to disinherit an Heir by general words for Hugh is disinherited by this Will whether this surviving Interest be a Fee or for Life The Intention here was to make an equal Provision for all the younger Children the Part and Share of the Person dying is the Inheritance in the Part and Share of the Person dying in the New-River Water The three Sisters were to have their Shares discharged of the Fee-Farm Bent but if this be only an Estate for Life then those who were designed to have the least benefit by the Will are to have the greatest for they are Heirs to Hezekiah whereas the Children by the first Venter seem to be most favoured by the Will because they are to have their Bequests free from those Incumbrances The Testator recites his own Scisin in Fee of so many Parts and Shares and then devises those Parts in Fee how can this Clause of Limitation to Survivors be construed to mean otherwise then that the whole Fee of that proportion should survive The Cases cited in Rolls on the other side are only Devises of the Land and not of his Share Then 't was said That here was no Tenancy in Common that 't is true equally divided and equally to be divided make a Tenancy in Common but 't is upon the account of the word divided that to two equally will not be so construed 1 Aâ—d 29. and if the words equally will not why should Share and Share alike these words do not shew any partition of the Estate in Fact nor in the Intention of the Testator