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
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
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
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
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
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
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 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