him nay against the Lessee himself the Owner of the Lands if he takes it before the Performance of the Condition so that these Words cannot alter the Case this is not the Case of a Will but of a Deed Executed in the Life-time of the Party the Rule and the Reason of the Rule about Exceptions in Grants will hold to this where the Grant is General the Exception cannot be rejected as void on pretence of Repugnancy The Common Law doth not care to raise or make Estates by Implication where the same Person hath an express one so is Vaughan 261 262. therefore there 's no Reason in this Case to construe the whole Term to pass by Implication in the Premisses a particular Estate being limited in the Habend ' and that not being good all is void Here 's no Purchaser Creditor or Heir in the Case but 't is a meer voluntary Act to the Defendant Then was cited 1 Cro. 376. 2 Bulstr 272. of a Copy-holders Surrender Habend ' a tempore mortis and held void wherefore upon the whole it was insisted That by the Premisses nothing passed but an Estate at Will That the Habend ' giving an Estate or Interest which was not allowable in the Law the Deed was void and passed nothing and therefore the Verdict was for the Plaintiff and the Judgment in B. R. was good and accordingly it was prayed That the Reversal of that Judgment might be reversed On the other side it was argued That to construe this to be void was contrary to the Intention of both the Parties That now the Grantor and his Wife were dead and there was no dispute about their Estates That the Premisses here passed the whole 't is to her and her Executors and Assigns 't is all that Cottage 't is together with all his Deeds concerning it the Deeds are concomitant with the Estate and when he grants the Deeds he certainly did design to pass his Interest he could never mean an Estate at Will when he names the Executors c. Then was cited the Case of Lilley and Witney Dyer 272. pl. 30. Grant of all his Interest Estate and Term Habend ' after his Death the Habend ' is void Plowd 520. 1 Bulstr 191. Bro. Grants 154. Leases 66. The Presumption that a Man can out-live a 1000 Years is a weak Pretence and void of Reason Equity is a part of the Law of the Land and here to judge this void is unconscionable and unreasonable Then was cited 1 Anderson 284 290. Grant of a Reversion Habend ' after his Death shall vest immediately the Lease imports and carries the Estate Peto and Pemberton 1 Cro. 101. Plea That he had surrendred his Lease which shews that it carried the Interest they are Synonimous Bro. tit Grant 155. A Man grants omnia firma sua shall pass his Term There 's no prescribed Form for passing a Chattel before the Stat. of Frauds A Man possessed of a Term grants it to another and his Heirs it passeth the whole so to a Man for Life it shall pass the whole Interest and shall go to his Executor Plowd 424. 3 Cro. 534. If the Habend ' were out of the Case this would pass the whole and if so the Habend ' is void 't is an old Rule and a good one Vt res magis valeat quam pereat The Lord Chief Baron Hale seem'd of that Opinion in the Case of Smith and Tutchett in scacc ' but that proved a Mistake for that Case was different and was ended by Consent as appeared by a Rule Die Mercurij 13. Die Maij Term ' Pasch 26. Car. 2. after Hale was removed into the Kings Bench. Then 't was said that there could be no ill Consequence in adjudging this to be a good Assignment the like case was never probable to happen again that here had been a Diversity of Opinions below Stairs that Equity was with the Defendant and therefore 't was prayed That the Reversal might be affirmed and it was affirmed accordingly Bennett Swayne Esq Petitioner Versus William Fawkener and John Lane Executors of Benjamin Middleton Defendants WRit of Error to Reverse a Judgment in the Kings Bench given for Benjamin in an Action against Swayne for 20 l. received by him of the Profits of a Share in the New-River c. The Case was thus Simon Middleton Esq being seized in Fee of Seventeen Thirty-six Parts of the King's Moiety in the New-River Water and having Issue eight Children viz. Hugh Sarah Hannah and Anne by his first Wife and Elizabeth Rebecca Benjamin and Hezekiah by his second Wife made his last Will and thereby amongst other things to the intent that all his younger Children might be provided for he devised Seven Thirty-sixth Parts or Shares of the King's Moiety aforesaid amongst them in manner following viz. to Sarah Hannah and Anne to each of them and their Heirs one full Thirty-sixth Part or Share of the said King's Moiety free and discharged from the Fee Farm Rent payable to the King's Majesty and of 100 l. per Annum payable to Henry Middleton deceased and his Heirs and from all other Payments and Charges whatsoever And also to Elizabeth Rebecca and Benjamin and to each of them her and his Heirs one full Thirty-sixth Part or Share of the said New-River Water of the King's Moiety only they and each of them proportionably to stand charged with the payment of the Fee-Farm Rent due and payable to the King's Majesty and with the 100 l. per Annum to Henry Middleton and his Heirs and with no other Payment or Charge whatsoever and to his Son Hezekiah and his Heirs one full Thirty-sixth Part or Share of the said New-River Water the said Share being part of the King's Moiety to hold to him and his Heirs with the Rents Issues and Profits thereof from and immediately after his Decease only proportionably to stand charged with the Payments of the Fee-Farm Rent due and payable to his Majesty and with the aforesaid 100 l. per Annum to the said Henry Middleton and his Heirs and also charged with 150 l. more towards binding out of his Brother Benjamin an Apprentice when and so soon as he shall attain to the Age of Sixteen Years but with no other Charge or Payment whatsoever And further devises That in case any of his said younger Children Sons or Daughters shall happen to die before he she or they should attain the full Age of Twenty One Years or be married then and in either of the said Cases he did will and devise that Part or Share with the Profits thereof of him her or them so deceasing as aforesaid to the Survivor or Survivors of all his aforesaid younger Children Share and Share alike chargable nevertheless with the several Payments as aforesaid but liable to no other Charge or Payment whatsoever And all the rest of his Shares in the said New-River Water he gives to his eldest Son Hugh and his Heirs so that he permit
CASES IN PARLIAMENT Resolved and Adjudged UPON Petitions and Writs of Error Quicquid sum Ego quamvis Infra Lucili censum ingeniumque tamen me Cum Magnis vixisse invita fatebitur usque Invida Horat. LONDON Printed for A. and J. Churchill at the Black Swan in Pater-noster-Row MDCXCVIII TO THE READER NO Collection of Cases adjudged in Parliament having been yet published a Preface seems necessary to bespeak the Reception of that which is now presented to the World To commend or excuse the Collector will not perhaps be a method to introduce it most to advantage what may be spoken in favour of his diligence or capacity will be censured vain and if any excuse be offered for his inability to have done it better some will be ready to take him at his word and think the Performance comes from a careless or unskilful Hand Whatever the Author is there needs no Apology to be made for the nature or design of the Work it self for the Subject Matter will be useful and entertaining to all Ranks of English Men to whom Books are so that is to all such as understand and love Literature Here is our Municipal Law and the reason of it Equity and the Law of Nations interspersed here is the manner of arguing and the language of the Bar briefly toucht here are the Forms of Proceedings sometimes mentioned but then again those Forms are superseded by the Original and Eternal Rules of Justice By the Debates and Arguments here reported you may be acquainted in some measure with the Rights of the Peers and their incapacity to alien such their Rights with the nature of Slander and some Rules concerning it the Course of Equity in respect of Penalties and Costs The Law of Average in the Case of Partial Losses at Sea the Circumstances upon which Relief may be had in Equity against hard or unreasonable Agreements the Construction of Wills to charitable Uses where the Estate intended is greater in value then the particular Bequests amounts unto the Power of a Council of State to commit with variety of Matter concerning Pleading and the Plantations belonging to England and the Priviledges and Birthrights of the English Subject by the Common Law and how far that Law extends The nature of Colledges Hospitals and other Elemosynary Foundations and the Authority and Power of Visitors and the Methods of their Proceedings the Court of Chivalry or Honour the extent and boundaries of its Jurisdiction before whom held and when and in what Cases a Prohibition lyes to it the power of Lords of Copyhold Mannors to refuse Petitions for the Reversal of Recoveries in their Courts and the Judgment of Equity upon such occasions the right of Dower and the efficacy of a Term attending the Inheritance to prevent its enjoyment and the opinion of Equity thereupon The Preference of an Outlawry upon mesne Process to a Judgment not extended and the practise and reason of the practise of the Court of Exchequer in that case the Consideration which a Court of Equity ought to have of Bonds Bills or Promises made or given upon Condition or Consideration of promoting and procuring Matches The dependency which Ireland hath upon England and her subordination to it and the Authority of the House of Peers in This over the Proceedings in the Chancery of That Kingdom the opinion of Equity upon Conditional Limitations and what will be a Performance of such Conditions and to whom the Profits shall go during the intermediate time c. The qualification requisite in a Presentee to a Benefice and the power of the Ordinary to refuse for defect of Knowledge and how that defect is to be tried the Construction of Law upon a Deed leading the Uses of a Fine of the Wives Land to the Heirs of the Husband's Body the Husband dying afterwards before the Wife the right of the half Blood in the distribution of an Intestates Estate and unto what Share the right of nominating to the Office of chief Clerk for inrolling of Pleas in B.R. and to whom it belongs the nature of a Bill of Exceptions and the Proceedings thereupon and in what Cases the same may be refused and if any Authority in the Lords over the Judges in case of such refusal The Punishment of Treason by the English Laws and the Form of Judgments in that case the nature of contingent Limitations after a Fee and if they may be allowed upon Contingencies to happen at any time after the decease of Persons then in being the manner of declaring the Uses of a Fine and by what Deed or Writing the nature of Wills and of the revocations of them and if a Will whereof the Contents are unknown may revoke a former the efficacy of the acts of one that is Non compos mentis and if and how far void what Deeds altering the Estate of a Testator shall revoke a solemn Will The nature of the Office of a Clerk of the Peace and by whom grantable and for what Interest and how removeable the Prerogative of Presenting to Benefices made void by Promotion and if such Prerogative be served or fulfilled by a Commendam and whether it can operate upon a new created Parish or Rectory the formal reason and essence of Treason and wherein it consists and what is necessary to be alledged in Indictments for that Offence the right of Tythes for Herbage or Agistment of Cattle grazed and fed for Sale tho' formerly used to the Plough The Exposition of a Will of a Native of France and by what measures a Judgment ought to be made of the meaning of Phrases used by such Persons in that Language upon such an occasion the Construction of the word Share in a Will concerning the New-River Water the force or validity of a Grant or Assignment of Land in which the Grantor had a very long term to hold from and after the Grantor's decease the Title of Knight if and how part of the Name and what Allegations in a Count in a Quare Impedit are not needful to be answered to and what may be traversed and what Grants of the Crown shall be good notwithstanding some and what Misrecitals These and many other Particulars worthy of most Mens notice are here debated and it may reasonably be supposed that none will be Enemies to the Design and Publication but those who mislike the small Remainders we have left us of the Aristocratical part of our Government the Gentlemen who do so must be unacquainted with the Grecian and Roman Story as well as with our own or else have read it but superficially for even the most perfect of the Grecian Common-wealths were somewhat Aristocratical That which may be called such is Sparta which tho' it had some Laws we cannot account for yet during several Centuries it maintained its own Liberty and assisted its Neighbours to preserve theirs And notwithstanding some Men may think the contrary Democracy was not the only Favourite Model 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
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