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
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
is aliud testamentum i.e. a general Testament The 2 Rich. 3. fol. 3. is directly thus The Defendant pleads one Will the Plaintiff replies another and exception taken because he did not traverse the former but held needless to do so quia per ult ' testamentum ut placitatur generaliter primum testamentum revocatur in omnibus and it cannot be pretended that this might be the same Will written over again for if so it could not be aliud it would be the same these are not quibbles upon words for can it be said that this is a Devise by the last Will of Sir H. when there 's another Nor is it an Objection that the Contents do not appear for the Will belongs not to the Heir to keep and consequently not to shew in pleading he is not bound to a profert 't is enough that there was a subsequent Will And as the latter may confirm or be consistent with the former so it may not be so and the consistency is not to be presumed especially against an Heir at Law and in possession In the Case of Coward and Marshal 3 Cro. 721. the Substance of both are declared and thereby they appeared to be consistent and consequently no Revocation here Eadem mens sic testandi the same intent of disposing his Estate the same way can never be thought to continue for then there had been no occasion of making another Will If this be not a Revocation 't is an act void and to no purpose which is never to be intended Then 't was insisted on That the bare act of making and publishing another Will is a Revocation and the finding of the Contents unknown is void If this be not a Will 't is a Codicil and that is contrary to the finding of the Jury for the Verdict mentions a second Substantive independent Will without reference to the former which second Will is a Revocation and therefore 't was prayed that the Judgment should be reversed It was argued on the other side in behalf of Mr. Nosworthy That this was no Revocation that here had been a great stir about nothing for that nothing appeared against his Title that a Man may make a Will of several things at several times and they both shall stand that a deliberate Will being made the Contents whereof are known shall never be revoked by that which is not known nothing can be judged upon that which doth not appear and consequently it can never be judged to be a Revocation Here 's another Will and nothing is given by it nothing is found to be given by this subsequent Will The form of entring the ancient Judgments was Quibus visis lectis auditis per Curiam plene intellectis now what is here read to make a Revocation 2 Rich. 3. fol. 3. is with the Judgment for there 't is replied that he made another Executor there are the Contents pleaded sufficient to maintain his Count and answer the Defendant's Bar the Book is per hoc quod alius Executor nominatur Then was cited 1 Cro. 51. the Reason given is quia in dubiis non presumitur pro testamento and here being a good Will at the most the other is doubtful 1 Cro. 114 115. Several Wills of several things may be made And the same Book 595. 10 Car. 1. which Refolution Serjeant Maynard in arguing this Case below said that he heard in that Court of Kings Bench 'T is the Subject Matter of the Wills and the Repugnancy which makes the Revocation In this very Case in the Exchequer upon an English Bill 't was held by Hale to be no Revocation 't is in Hardres 375. Coke upon Littleton which hath been quoted Comments upon these words several Devises and if there be no Devise in the second there can be no sense or meaning in it and consequently unless some meaning appear it can never be an Evidence of a change of his Mind as it might be a Revocation so it might be otherwise and he that will have it to be a Revocation must prove it to be such No Man can affirm that every Will must necessarily be a Revocation of a former for the second Will might be of another thing as Goods or of another parcel of Land or in confirmation of the former If in these and many other like Cases a latter Will is no Revocation of a former how can it possibly with justice be concluded that a latter Will without Contents Purport or Effect shall be a Revocation of a former And tho' the Jury have in this Case believed the Witnesses and found that another Will was made it may be of dangerous Consequence to encourage and construe this a Revocation without knowing the Contents for no Will can be secure against the swearing of a new Will if there be no necessity of shewing it or proving what it was For which and other Reasons it was prayed that the Judgment might be affirmed and it was affirmed Sir Simon Leach al' Plaintiffs Versus J. Thomson Lessee of Charles Leach Defendant WRit of Error to Reverse a Judgment given in B. R. upon a Special Verdict on a Trial at Bar in Ejectment brought by Thomson on the Demise of Charles Leach the Special Verdict finds that Nicholas Leach was seized of the Lands in question in his Demesne as of Fee and being so seized 9 Nov. 19 Car. 2. he makes his last Will and thereby devises the Premisses to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to Simon Leach his Brother for his Life and after his Decease to the first Son of the Body of the said Simon lawfully to be begotten and the Heirs Males of the Body of such first Son lawfully to be begotten and for default of such Issue to the second c. and so on to the eighth Sons of all and every other Sons c. and for default of such Issue to Sir Simon Leach his Kinsman Son and Heir of Simon Leach of Cadley in Com' Devon ' Esq deceased and the Heirs Males of his Body and for default of such Issue to the right Heirs of him the said Nicholas for ever Then they find That the Lands in the Declaration and those in the Will are the same that afterwards viz. 10 Apr. 20 Car. 2. Nicholas died seized without Issue of his Body that after his Death the said Simon his Brother and Heir Entred and was seized in his Demesne ut de libero tenemento for term of his Life Remainder to the first Son of the Body of the said Simon the Brother and the Heirs of the Body of such first Son lawfully to be begotten and for default of such to the second c. Remainder to Sir Simon in Tail Remainder to the said Simon the Brother and his Heirs belonging That Simon Leach the Brother being so seized afterwards viz. 20 Aug. 20 Car. 2. took to Wife Anne the Daughter of Vnton Crook that
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
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
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