in the Negative doth amount to it viz. that he shall continue no longer especially when the Act recites the Mischief to be a Continuance during Life It implies that the Clerkship of the Peace should be never granted for a longer Interest than the Custos had in his Office The 3 and 4 Edw. 6. doth indeed repeal part of the 37 Hen. 8. not by express words but by a very strong Implication by giving the Chancellor a power to nominate the Custos But the Office of Clerk of the Peace is not toucht by that of Edw. 6. and continues as settled by 37 H. 8. which is during the continuance of the Custos Then 't is the new Statute which gives the occasion of the present Dispute and there 's nothing in this Act which can make such an Alteration in the Law as was below contended for The words So long only as he shall well demean himself are not enlarging of his Estate but Restrictive and whensover 't is considered how to make a Grant for Life to be good you must consider the power and capacity of the Grantor and how the thing is capable of being so granted as in Case of Tenant in Tail or Fee and each make a Lease for Life in the latter Case 't is for the Life of the Lessee and in the former for the Life of the Tenant in Tail because of the different Capacities of the Grantors and so the thing it self is considerable here 's an express Statute that saith it shall be only during the continuance of the Custos now that Provision is to be pursued 'T is said that a Grant quam diu se bene gesserit is for Life but the words themselves do not import any such thing 't is indeed a restrictive Condition which the Law imposes upon all Offices for Misbehaviour in any Office if in Fee is a Forfeiture but the chiefest Consideration is if it be an Office that is capable of being granted for life if it be so these words may amount to a Grant for Life as expounded by usage and the nature or capacity of the Office it self but otherwise if the Office be not grantable for Life such words will not give an Estate for Life These words seem only to be an Expression of what the Law always implieth tho' not particularly expressed If it operate any thing it seems only to have reference to the power of the Grantor as a Restirction on him and not as an Enlargement of the Estate of the Grantee especially where by a Law in being there 's an incapacity upon the very Office not to be granted for life Then it was urged that the Statute of 37 H. 8. was not repealed the 3 and 4 Edw. 6. doth not alter this Matter at all and where it did make any Alteration the same is expresly repealed by this last Act in question It is a settled Rule that if there be two Statutes and both consistent and not contradictory the latter can never be said to repeal the former and so is Dr. Foster's Case 11 Rep. 5 6. so it is in Wills Hodgkinson and Wood Cro. Car. 23. This last Act of Will. et Mar. is consistent with the 37 Hâ—n 8. the one says He shall continue during the time that the Custos doth remain such so as he demean himself well the other says He shall enjoy his place so song only as he demeans himself well in it Now take the Office to be by the 37 Hen. 8. only granâ—able to hold during the continuance of the Custos then suppose in the same Act it should be said to hold so long only as he demean himself well where is the inconsistency or contradiction And if none then this last Act doth not Repeal the former as to this Matter And Mr. Fox's Grant is pursuant to the Statute of Hen. 8. and Mr. Harcourt's hath no relation to it Then 't was argued That 't was unreasonable that a Custos should have an Officer under him of anothers choice when himself is responsible for the Records which such Officer is concerned with The primary Intent of this last Act was only to settle the Doubts about the Keepers of the Great Seal not to alter the Estate of the Office of Clerk of the Peace The Offices of the Judges in Westminster-hall determine with the King's Life who grants them tho ' they are granted to hold during good behaviour In this Act the reason of using these words was for Caution to advertise them that Misbehaviour should forfeit their Places If an Alteration of the Law had been intended they would have said for Life so as he demean himself well especially when as was said before he was removable for Misbehaviour by the former Laws in being Wherefore upon the whole Matter it was prayed that the Judgment might be reversed On the other side it was argued with the Judgment That 't is clear and apparent that this Act of W. M. was made not only to satisfie Doubts and prevent Questions about the Office for the Custody of the Great Seal but to settle the manner of naming the Custos and Clerk of the Peace and that 't is in part introductive of a new Law and in part a reviver of the old But the general end was that that Office of Clerk should be filled and executed by a learned able honest Person because it concerns the Administration of Justice He is the King's Attorney in many respects he not only writes the sense of the Justices in their Orders but draws Indictments and upon Traverses he joyns Issue as one qui pro Domino Rege in ea parte sequitur and prays Judgment for the King in many Cases joyns in Demurrer when occasion requires and is in the Sessions the same as the Clerk of the Crown is in the King 's Bench. Now to accomplish this end of having a Person well qualified and to encourage and oblige him to his good Behaviour it requires a Residence in the County it enjoyns that the Person named be able it subjects him to the Jurisdiction of the Justices who have a daily observance of his demeanour it gives them a power to remove him upon a just Complaint which they could not before it frees him from the usual Temptation to Fraud and Corruption by introducing him gratis sine pretio and to provoke his Care and Diligence it gives him a more durable Estate in his Office then he had before when he bought it viz. Freehold an Estate for his Life That it should be so is convenient because then he will be encouraged to endeavour the increase of his Knowledge in that Employment which he may enjoy during Life whereas precarious dependent Interests in Places tempt Men to the contrary That this is an Estate for Life appears from the words of the Act they do direct how long he shall enjoy his Office so long only as he shall behave himself well If the word only had been omitted
there could be no colour for a Doubt By 1 Inst 42. 'T is an Estate for Life determinable upon Misbehaviour for during good Behaviour is during Life 't is so long as he doth behave himself well i.e. If he behaves himself well in it so long as he lives he is to have it so long as he lives during Life and during good Demeanour are therefore synonymous Phrases the same thing when used with relation to Offices the Condition annexed if observed continues it during Life the contrary determines it This is the Rule and Law in case of Offices in general and must hold in this for this is an Office 2 Hen. 7.1 He is called Att ' Domini Regis 'T is capable of being enjoyed for Life and consequently of being granted so especially when an Act of Parliament declares it shall be so There 's nothing in the nature of the Employment that hinders it and there can be no doubt but that a Statute may impower a Custos in possession who hath only an Estate at will to name a Clerk to hold during Life or good Behaviour The Justices are at pleasure Suppose then the Act had said That they should name him in this manner he must have continued tho' they had died or had been removed the Case is the same here he is as much intrusted with the Acts of the Justices as with the Records belonging to the keeping of the Custos Then there 's nothing in the Act that savours of an Intention to make him dependent on the Custos's Office The Custos is to name him but the Justices have the controul over him he is an Officer to the Sessions and the Justices only can remove him The Limitation of the Interest of the Custos in his Office and that of the Clerk are different and that shews that the duration of the one was not to depend on the other Besides the Custos is to name not when he shall be made Custos as it would have been worded if the intention advanced on the other side had been true but whensoever it shall be void It doth not say Every new Custos shall or that every Custos shall name but generally when 't is void he shall c. Then as to the Objection That this new Act is consistent with the 37 Hen. 8. and therefore that is still in force 'T was answered That by the former Act he was intirely placed under the Custos who had power to displace him upon Miscarriage the Sessions then could not do it tho' a Court and a Court of Record they might suspend him but could not deprive him of his Office even for ill Demeanour This was that Act. Now the present Law abridges the power of the Custos he must name a Resident before he might appoint any able Person the Person was then removable by the Custos now only by the Justices Care is taken that nothing is to be given for the Office and now he may make a Deputy without the approbation of the Custos Here 's plainly a different Jurisdiction over him and a different Estate vested in him this express Limitation of the Interest to him is an Exclusion of the former Estate as dependant upon that of the Custos And besides this is a Substantive distinct enacting Clause of it self and no ways relating to the Statute of Hen. 8. Why was this Limitation penned differently from that unless to give another sort of Interest As to the Cases of new Laws which repeal former 't was said That the Rule was certain that whatsoever Statute is introductive of a new Law tho' penned in the affirmative is a Repeal of the former as implying a negative i. e. the latter ought to be observed if it concerns the same Matter The Statute of Edw. 6. controuled the Statute of Hen. 8. One directed the Keeper to name the other the King and both are in the affirmative yet the latter must be observed And if this be a new Estate as it hath been adjudged below then the Party ought to enjoy it And for this was cited 1 Sid. 55. Plowd 113. and other Books Then 't was said That the Clerk of the Peace named by the Justices in default of the Custos would have an Estate for Life and by the same reason it ought to be so here Tho' the Custos be to be named according to the Statute of Hen. 8. yet he is not to execute his Power of Custos according to that Act but is tied to a Resident hath not the Approbation of a Deputy and cannot remove By the Statute of Hen. 8. the Clerk had but an Estate at the will of the King the Custos having no other This is so long as he doth well in his Office these are different and when the Custos hath named him he is in by the Statute If what they on the other side contend for had been intended there was no need of these words of Limitation at all and the words in like manner as by the former act had fulfilled the intention if such had been As to the word only that would make no Alteration in the Case of any other Office Suppose an Office granted to a Man quamdiu tantum or solummodo se bene gesserit would that give less then an Estate for Life The word only was added not to abridge the Estate of the Clerk but rather to restrain the Power of the Custos that he should have Authority only to limit it during good Behaviour and not for a less Interest or Estate The Custos is confined that he shall not grant it for Years or at Pleasure Besides only is but just so long and no longer or so long as and 't is the same thing with the word as without it Dummodo sola vixerit is during all her Widowhood Suppose a power to make Leases to hold only for and during the term of 21 Years the same would be good for the whole Term. Then 't is no Objection That the Estate of the Clerk is greater than his is who names him for that may be by Custom as in the Offices in Westminster-hall Hobart 153. and the Clerks of Assize where usage fixes the Estate And the like in Case of Power to make Leases upon Family Settlements to Uses where Tenant for Life grants larger Interests then his own 'T is true the Powers and Estates raised by them issue out of the Inheritance but the Tenant for Life only names them as the Custos doth here tho' the Statute gives the Interest As to the Inconvenience That dependent Offices should continue against the will of their Superiours that can be no Objection since there are few great Officers in the Realm but have many Substitutes and Inferiours under them which were named by their Predecessors and are not removable almost every Bishop in England is under these Circumstances with respect to the Register of his own Court who notes and records his Acts c. This is an
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
and yet ' t is there in the power of the Ancestor by good Pleading to have supported the Patent and by bad pleading to destroy it and therefore when the Foundation which is the Patent fails the Honour and whatever it be that is erected upon it shall fail also Every Estate by the consent of all Persons interested and concerned in the thing may be taken away for the Law is so set against Perpetuities that a Clause intimating it is void and tho' an Honour is not Jones Rep. 109 123. assignable yet it may be extinguished It 's true if a Man hath but a part of an Estate as only an Estate for Life he can't alone pass away the whole Estate but none who hath the Inheritance in Tail or in Fee but he may destroy the whole and tho' any one have but part yet by the concurrence of all that are concerned the whole may be destroyed It is admitted if he commit Treason and is attainted thereof he loseth the Honour for himself and his Posterity now 't was in his power to do this act overt and if by an act unlawful he hath power to defeat the descent of the Intail upon his Issue there is the same reason that by a lawful act he should part with it there are two Acts of Parliament in force which fortifie the Fine it must be granted that those Honours are within the Statute de Donis and then there can be no reason they should not be within the Statutes of Fines 4 Hen. 7. 34 H. 8. which say that Tenant in Tail may levie a Fine of all things that are intailable within the Statute de Donis whatever therefore is within the one is within both and it is not sufficient to alledge that it is inconvenient that it should be within the Statute of Fines for there is an Act of Parliament and without an Act of Parliament to exempt it it can't be exempted It may be proved by great variety of Precedents to have been the practise in former times anciently nothing more frequent than to release Hoours See Selden's Titles of Honours 730. it was as frequent as to grant them In latter times Delaval's Case 11 Rep. 1. it hath been the Judgment of the Lords that Honours may be extinguished which in 1668. was certified by all the King's Counsel Learned in the Law to be good Authority But to go a little higher Andrew Gifford Baron Pomfret in Fee 4 Hen. 3. Rot. 100. surrendred to the King so 23 Hen. 3. Simon Mountford Esq Earl of Leicester having a Mind to take an Honour from his eldest Son and confer it upon his younger and so it was surrendred and regranted accordingly Selden seems to construe this to be by way of Transmission and not Surrender yet others of later Authority as Cambden's Britan. Title Earl of Leicester say expresly that he did Surrender it and Selden himself says it was by Concurrence of the King King Hen. 3. Rot. Cr. 24. men E. 1. created one Earl of Richmond and he surrendred to the King Cambden's Brit. Title Earl of Richmond Roger de Bigod surrendred not only the Office of Earl Marshal but also the Earldom of Norfolk William Duke of Juliers whose Father came in with Edw. 3. was created Earl of Cambridge 40 Edw. 3. m. 21. in Fee his Son surrenders to the King which Record we have here So Edward the Third made his Son John of Gaunt See Cambden's ubi supra Earl of Richmond who surrendred it to the King And lastly in the Years 1639 1679. Roger Stafford whom the King intended to make a Viscount by the Advice of the Learned Men levied a Fine thereof by which 't is now enjoy'd Lastly he argued ab inconvenienti for no Lord in the House will be in safety if it should be other ways there being many sitting in this House by virtue of Surrenders from other Lords in former days and perhaps some of their Heirs are alive and so if these Surrenders be adjudged invalid it would shake your Lordships own Possessions and make it dubitable whether Forreigners and Persons unknown may not come and thrust them out but if not so it may cause Confusion amongst themselves their former Honours having been surrendred to accept of others and perhaps some not thinking their Titles secure will stick to the former and so occasion Dispute and Confusion about Precedency and lastly it will put a great Disgrace upon your Ancestors proceedings who deemed this Course legal and those must show very good Precedents that it hath been disavowed if they will encounter such constant Practises In the next place 't was answered to their Arguments and Objections and as for that first Argument That an Honour is inherent in the Blood he answered That this Inherency in the Blood is not essential to Honours for an Honour may be created for Life and then none of the Posterity or Blood of the Peer is thereby enobled It may be limited to the Heirs Males of the Body so that an Honour may touch and enter far into the Blood and yet not run with it and farther it may be limited to the Heirs by such a Wife there the Issue by the second Venter shall never inherit the Dignity and yet is as near to the Father as those that are by the first so that 't is no true ground that they go upon that Nobility is inherent in the Blood and for what was alledged as to the Inconveniency of Surrendering Dignities he answered That there may be necessary Reasons for the extinguishment of an Honour and it may be for the benefit and advantage of the Party and his Posterity as if it do happen that the Family do fall into Poverty and be not able to support the Honour of Peerage with decency and so this Honour would perhaps be a Disgrace to the rest of the Lords and in a Child's Case it may happen to a Noble Family to have those Afflictions that to continue the Honour would expose the Family to Infamy and therefore some times to prevent the Son of Adultery from his succeeding to the Dignity it may be convenient to surrender it and yet this cannot be without the concurrence of the Prince who being the Source of Honour can best judge of the Reasons for stopping the Stream and it cannot seem an harder Case to disinherit him of the Honour then of the Estate which he may do and if he leave his Honour without his Estate it will be a Burden on his Shoulders which he will be unable to bear and seeing it 's necessary that there be a concurrence of the Prince it is undecent to suppose so vile a thing of the Crown as to comply with the Peevishness and Simplicity of the Parents where there is no reason for it And as for what hath been alledged for the Invalitity of those Precedents that they were in Cases of New Creations and were in nature of Transmissions he answered That when an
good for them and that they had the like Power of Appeals Writs of Error and Impeachments c. and that the Cognizance of such Appeals in England would produce great inconveniencies by making poor people to attend here whereas they might with less trouble and expence have Justice at home that this did agree with the reasons of that Ancient Statute 4 Inst 356. that persons having Estates in Ireland should Reside in that Kingdom else half of their Estates should go to maintain the Forts there That this practice of receiving Appeals here would be vexatious to the people of that place and that no Court could have Jurisdiction but by grant or prescription and that there could be no pretence for either in this place Then was it ordered in these or the like Words Whereas a Petition and Appeal was offered to the House the Day of last from the Society of the Governour and Assistants London of the New Plantation in Ulster in the Kingdom of Ireland against a Judgment given by the Lords Spiritual and Temporal of Ireland in Parliament there Assembled on the day of last upon the Petition and Appeal of William Lord Bishop of Derry against the Decree or Orders made in the said Cause in the Court of Chancery there Whereupon a Committee was appointed to consider of the proper method of Appealing from Decrees made in the Court of Chancery in Ireland and that pursuant to the Orders of the said Committee and a Letter sent to the Lords Justices of Ireland by Order of this House several precedents have been transmitted to this House by the said Lord Justices Copies whereof were ordered to be delivered to either side After hearing Counsel upon the Petition of the said Society of London presented to this House praying that they might be heard as to the Jurisdiction of the House of Lords in Ireland in receiving and judging Appeals from the Chancery there as also Counsel for the Bishop of Derry after due Consideration of the Precedents and of what was offered by Counsel thereupon It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament Assembled That the said Appeal of the Bishop of Derry to the House of Lords in Ireland from the Decree or Orders of the Court of Chancery there made in the Cause wherein the said Bishop of Derry was Plaintiff and the said Society of the Governour and Assistants London of the New Plantation in Ulster in Ireland were Defendants was coram non judice and that all the proceedings thereupon are null and void and that the Court of Chancery in Ireland ought to proceed in the said Cause as if no such Appeal had been made to the House of Lords there and if either of the said Parties do find themselves Agrieved by the said Decree or Orders of the Chancery of Ireland they are at liberty to pursue their proper Remedy by way of Appeal to this House Sir Caesar Wood alias Cranmer versus Duke of Southampton APpeal from a Decree in Chancery the Case was thus Sir Henry Wood the Appellant's Unkle makes a Settlement in Consideration of a Marriage to be had between his Daughter Mary and the Duke c. to the uses following i.e. in Trust to Receive and Pay out of the Profits 450 l. a Year to the Lady Chester for the Education and Maintenance of his Daughter till twelve years of Age then 550 l. a year till Marriage or Seventeen years of Age which should first happen and in Trust to pay the Residue of the Profits to the Duke after Marriage he first giving Security to the said Trustees to provide Portions and Maintenance for the Daughters of the Marriage equal to the Sum he should receive and in case there should be none then the same Money to remain to the Respondent and if the said Mary should die before Marriage or Age of Seventeen years to such Uses as Sir H. W. should appoint And if Mary after Sir Henry's death die under Sixteen the Respondent then unmarried to any other Woman or after and before Seventeen the Respondent then living and unmarried or if before Seventeen she should marry any other or if she should refuse the Respondent then 20000 l. out of the Profits to the Duke But if the said Marriage shall take effect after Mary's Age of Sixteen years and she shall have Issue Male by the Respondent then for the better Settlement of the Premisses upon the Issue Male and a more ample Provision and Maintenance for the Respondent and his Wife and the longest Liver of them in Trust for the said Duke and Mary for and during their Lives and the Life of the longer liver of them and after their Deaths to the first Son c. in Tail Male and for default of Issue Male to the Daughters And for default of such Issue in Trust for such Persons only as Sir Henry should appoint and in default thereof to the right Heirs of Sir Henry Sir Henry W. at the same time makes his Will tho' dated after the Settlement reciting that he had settled the Premisses upon the Duke and Mary for their Lives and the Life of the Longer liver of them c. and confirms it and in Case the said Martiage should not take effect according to the Limitations of the Settlement or if the said Respondent should die without Issue by Mary or if he have Issue by her and that Issue die without Issue then the Remainder to Mary for Life and afterwards to her first Son and after several mediate Remainders then to the Appellant for Life c. and after to Thomas Webb c. Sir Henry Wood dies the Marriage between Mary and the Duke afterwards takes effect upon her arrival to years of Consent and they lived in that state till she was near Seventeen years of Age and then she dies without Issue The Court of Chancery decreed the Profits of the Estate to the Duke for Life It was argued for the Appellant That here was a precedent Copulative Condition that if the Marriage take effect after Sixteen and there be Issue then to the Duke and neither of these being in the Case the Decree is not consistent with the positive words of the Settlement for that the Duke was to have it upon no other terms That by this Settlement the Duke was thus provided for 1. If the Marriage did not take effect by Mary's refusal or taking another Husband the Duke was to have 20000 l. 2. If the Marriage did take effect and Issue was had then the Duke was to have an Estate for Life but not otherwise that the words are plain and certain that there must not only be a Marriage but Issue Male between them that tho' it should be agreed to be a good Marriage within the intention of the Settlement she living till after Sixteen years of Age yet when a Condition Copulative consisting of several Branches as this doth is made precedent to any Use or
Trust the entire Condition must be performed or else the Use or Trust can never rise or take place And it is not enough that one part only be performed As to the Objection from the intention of the Parties 't was Answered That no such Intention did appear or reasonably could be collected from any thing in this Deed or Will and it would be too great a violence to the words to break that Condition into two which is but one according to the plain and natural Contexture and Sense of it It hath been said That if the Duke cannot take an Estate for Life in the Trust unless he had Issue Male by the Dutchess then she her self could not take for Life by that Trust unless there were Issue Male for that their Estates are limited together and then the Consequence would be That if there were Daughters and no Sons the Daughters would have the Trust of the Estate in their Mother's Life time and their Mother nothing which could not be the intent of Sir Henry Wood. To this it was answered That the same arises from a plain Mistake and a Supposition that the Daughters if any should take tho' there never were a Son whereas the Limitation to the Daughters is under the same precedent Condition as the Limitation to the Duke and Dutchess is For the precedent Copulative Condition ushers in the whole Limitation of the Trust so that the Trust to the Daughters could no more arise without Issue Male born than the Trust to the Duke and Dutchess And whereas 't is pretended That at this rate the Duke and Dutchess were to have had no Subsistence till the Birth of Issue Male which might be many years it was answered That this was a plain mistake of the Law for this Trust being by the Deed and Will thus limited upon this precedent Condition of having Issue Male they whose Estates in this Trust are thus limited upon this Condition can take nothing till the Condition be performed by Marriage and Issue Male and then by the Rules of Law till some of those Persons to whom the Trust was limited could take the Trust of the Estate descends to the Heir at Law and she was intituled to the Profits till the precedent Condition should be performed or become impossible and if the Condition had been performed the Trusts would have taken effect and being not performed but becoming impossible by the Dutchesses death before she had Issue the subsequent Trusts take effect upon her death Besides that it is pursuant to the Rules of the Common Law which gives to the Husband no Estate for Life in the Wives Inheritance unless he have Issue by her born alive wherefore it was prayed that the Decree might be reversed Then it was argued on the behalf of the Respondent That Sir Henry Wood by the same Settlement directs that if the Duke died before his Marriage with her then the Trustees should dispose of the Profits of the Premisses to the Lord George Palmer the Duke's Brother in case the Brother married her and to the said Mary for their Lives and the Life of the longer Liver of them And from and after the decease of the Survivor of them then to their Issue in Tail Male c. without adding any words of a preceding Condition and yet says In like manner and for the like Estates as he had appointed for his said Daughter and the Duke in case of their Marriage which plainly evidences his intention to be That the said Duke and the Lady Mary should have the Profits during their Lives altho' they should never have Issue Male as the Brother would have had in case he had married her Then 't was urged That Sir Henry Wood's appointing the Surplus of the Profits over and above her said Maintenance for the benefit of the Duke until his marriage shows the intent for that it can't be imag ined that he should be provided for before his Marriage and left destitute of all Support after it unless he had Issue Male by her Nay his intention of Kindness to the Duke was proved further by giving him 20000 l. in case she refused to marry him or died before her Marriage And as to the Pretence of its being a Condition precedent it was answered That unless that Paragraph be made to interfere with it self the Duke will be intitled to an Estate for Life if there were no other Clause in the Deed. For first It 's said That for a more full and ample provision for the said Duke and his Wife the Trustees c. Which words according to the Construction of the Appellant's Counsel must be useless and void unless the Duke were not after Marriage to have as great if not greater Supply then he had before the Marriage Then 't is said That they should be seized in Trust for the Duke and his Wife and the Survivor of them for and during their natural Lives and the Life of the longer Liver of them And from thence 't was argued That the meaning and import of the words far and during can be nothing less than the whole Duration and Continuance of their Lives from and after Sir Henry's Death and their Marriage Then the Will of Sir Henry proves the Intention for that it recites That he had settled from and after his Decease the Premisses in Trust for the Duke and the said Mary during their Lives and the Life of the longer Liver of them and takes no notice of the pretended precedent Condition which shows that he designed them the Profits immediately after his Decease and the Marriage Then in the Limitations over they are not to take any benefit of or by the Premisses until the death of the Duke and his Wife without Issue therefore it must be understood that the Profits in the mean time should remain to the Duke and his Wife or the Survivor of them And then it was further observed That the Duke comes in as a Purchaser upon as valuable a Consideration as any in the Law viz. Marriage and the Limitation over to the Respondent is avoluntary Settlement And as to the Objection of the Marriage being before Sixteen it was not much insisted on the other side and in reason cannot be because her continuing married till after Sixteen doth fully satisfie the intent of the Deed in reference to this Matter And many other Reasons were urged from the Intent of the Parties and the Nature of the Interest the same being a Trust Estate and proper for Equity to construe And upon the whole it was pray'd that the Decree might be affirmed but the same was reversed Sir Caesar Wood alias Cranmer Versus Thomas Webb APpeal from a Decree in Chancery The Case was founded upon the next preceding The Respondent was one of the Coheirs of Sir Henry Wood and claimed a Moiety of the Profits of the Premisses during the Duke's Life and the same was decreed accordingly And now it was argued on the behalf
of making a new Presentation And in all pleadings of this sort the notice is generally alledged to be the same day or within a day or two at the most That certainly it ought to be with convenient notice But then it was urged That the six Months ought not to be from the Death of the last Incumbent if there be a person Criminal presented which the Patron doth or may know as well as the Bishop there the six Months must be from the Death but if it be upon a refusal for a Cause which lies only in the Bishop's knowledge then it must be only from the notice and that notice ought to be personal but if the Months incur from the Death the notice should be in conveient time and what that is the Court must Judge Then it was urged from Speccot's Case That this Plea is too general and uncertain that a Temporal right being concerned the Bishop ought to have set forth more particularly and distinctly the cause of his Refusal 8 Rep. 68. the certain cause of a Divorse must be shewn 11 Hen. 7. 27. 2 Leon. 169. The Ordinary is a Judge only of the matter of Fact if true not if this matter pretended be a cause of Refusal he ought to alledge that so particularly as to manifest it to the Court in which the Suit depends That 't is a legal cause of Refusal He is not a Judge whether Hodder's insufficiency in any one point of Learning be a good cause of Refusal for if it should be so the Temporal Right of Patronage would be very precarious The Court ought to have enough before them whereon to Judge of the Cause as well as that on Issue may be joyned and tried here 't is only said that he is less sufficient not that he is altogether illiterate this will put it in the Power of the Ordinary to refuse for want of knowledge in any Learning as he thinks fit as Mathematicks or Anatomy without which a Man may be well Qualified to be the Rector of a Benefice and the consequence of such Opinion will be much to the prejudice of Lay Patrons that certainty in Pleading ought to be encouraged for the prevention of the exercise of Arbitrary discretionary Power that the Wisdom of the Common-Law is to reduce things to single Questions that the Determination upon them may be plain and certain and known and the reasons of such Determinations may appear which cannot well be done if general Allegations or Pleadings be countenanced for which and other Reasons urged by the Counsel who argued with the Judgment 't was prayed that the Judgment might be affirmed It was replied on behalf of the Plaintiff in the Writ of Error that the Books were very plain that the six Months were to incur from the Death of the Incumbent and then if there were not notice in convenient and due time in order to enable the Patron to present again that this ought to come on the other side That to require Learning in Presentees to Benefices would promote the Honour of the Church nay of the Nation in general That every Man who knew this Presentee and his Ignorance even as to the Latin Tongue must acknowledge that the Reverend Prelate who refused him had done worthily and becoming the Character of his Order Family and Person and therefore 't was prayed that the Judgment should be Reversed and it was Reversed Robert Davis versus Dr. John Speed WRIT of Error on a Judgment in Ejectment in the King 's Bench for certain Lands in Hamp-Shire the Declaration was upon the Demise of Francis Cockey The Verdict finds that William Horne and Ann his Wise were seized of the Lands in Question in their Demesne as of Fee in Right of the Wife that they made and executed a Deed Covenanting to Levy a Fine thereof to the use of the Heirs of the said William Horne lawfully begotten and to be begotten on the Body of the said Ann his Wife and for default of such Issue then to the use of the right Heirs of the said William Horne for ever and a Fine was Levied accordingly to these uses that William and Ann were seized prout Lex postulat that they had Issue William Horne their Son who Died without Issue in the Life of William and Ann that she Died and William the Father and Husband Survived her that then he Died without Issue that the lessor of the Plaintiff is Sister and Heir of the said William Horne that after his Death she entred and was seized prout Lex postulat that Elizabeth Joanna and others were Co-heirs of the said Ann that their Estate and Interest came by mean conveyances to the Defendant Speed That he was seized prout Lex postulat that the Lessor of the Plaintiff entered and Ousted the said Speed and made the Demise in the Declaration and that the Plaintiff entered and was Possessed till the Defendant entered upon him and Ousted him And if it shall appear to the Court that the Desenant's entry was lawful they find the Defendant not Guilty and if c. upon this special Verdict Judgment was given in B. R. for the Defendant And now it was Argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was Erroneous and ought to be Reversed for that these Lands belonged to the Heirs of the Husband by force of this Deed and Fine that this was in the Case of an Use which was to be construed as much according to the intent of the Parties as a will That if by any construction that intent could be fulfilled it ought That the intent of the parties here was plain to give this Estate to the Husband and his Heirs that uses are to be governed by Equity and that therefore the meaning of the persons concerned was to be pursued That the Woman intended to take nothing her self nor to reserve any thing but to part with the whole That here was an use by implication in the Husband tho' none could result back to the Husband because he had none before but that in this case as in that of a Will an use might by implication very well be raised to the Husband and then this might be good by way of Remainder after the Death of the Husband or create an Estate Tail in him by coupling the use implied to him for Life with that to the Heirs of his Body and that if it were not so then that it was good as a springing contingent use to the Heirs of the Body of the Husband c. and that in the mean time till that Contingency happened the same was to the use of the Wife and her Heirs And that this Construction contradicted no Rule of Law That it was no more than was allowed in case of a Will by way of Executory Devise according to Pell and Brown's Case in 2 Cro. that the Estate should remain in the Wife and her Heirs during the Life of the Husband
that this was never designed to take effect as an use to be vested immediately and it was no more then if the Deed had declared the use to be after the expiration of twenty Years or at other future time to the Heirs of the Body of William Horne and for default of such Issue to his right Heirs and that such time had happened the use would have vested in the Heirs of his Body or in his right Heirs if he had Died before that time That 't is true there must be a person capable of taking at the time when the Contingency happens and so there was here at the time of his Death That it could never be intended that the Heirs should take immediately for that then there was no such person in being there could be no Heirs during his Life That this was like the Case of Webb and Sir Caesar Cranmer where the Trust of the Estate during the Life of the Duke of Southampton was adjudged to remain in the Heirs of the Devisor the Duke himself not being capable to take it That here being no person able to take under this Deed and Fine during the Husband's Life it shall be construed to remain as it was before till that Life ends and then the use ought to take effect for otherwise both the Deed and Fine are to no purpose they are all in vain and the intent of the parties to it is defeated And there were Cited the Lord Paget's Case in 1 Anderson and Woodlett and Denny 2 Crook 439. and 1 Leon 256. On the other side it was argued with the Judgment that this Deed and Fine can raise no use to the Heirs of the Husband according to the Rules of Law It was insisted That if Husband and Wise do levy a fine of the Wife's Land and no uses are declared or such uses are declared as are void and can never take effect such Fine is to the use of the Wife and her Heirs that in such case the Estate remins ' as it was or if the Fine Operates any thing it shall be for the benefit of the party to whom it did belong before Then it was urged That this was designed to raise an use immediately to the Heirs of the c. and that there was no person capable of taking at the time of levying this Fine the common Maxim in the Law proving it quod nemo est heres Viventis that the name and nature of an Heir import a successor after Death that this being designed to raise an use ex presenti and no person being capable of taking at that time the same must be void That this is the case of a Deed executed in the Life-time of the parties and not a Will where large allowances are often made in favour of supposed intentions by reason that persons are often surprized by Sickness and presumed to want the assistance of Counsel but the Rules of Law are always allowed to govern in Construction of Deeds Then it was urged that nothing was ever designed to the Husband himself by this that no words in the Deed can favour such a presumption that this must either work as an Estate in present or by way of remainder if the latter then by the known Rules of Law there must be a particular Estate to support it and such particular Estate must be either expressed or implied here is none expressed and if implied it must be in the Wife and if in her then she dying before the Husband her particular Estate did determine before the remainder could take place and consequently by all the Rules of Law it can never take place and no particular Estate can be implied in or for the Husband for that there is nothing said shewing such intent and if the Construction of Law be to prevail then as was urged before that is in favour of the Wife But here it was plainly designed to take effect immediately and therefore void because there was no person in being capable of taking at the time the Estate was intended to vest and no uses are to be executed by the State which are limitted against the Rules of the Common-Law Chudleigh's Case 1 Rep. 129. if the limitation of an use be at this day to A. for Years and afterwards to the use of the Heirs or Wife of B. which shall be this is void because 't would have been void if limitted in possession Dyer 190. the Earl of Bedford's Case in Popham 3 4. and 82. resolved in like manner to be void because would have been so in an Estate conveyed at Common-Law And all that can be objected is that then this is all void which is no more than may be pretended upon every imperfect conveyance but here the Case is in a Court of Law and the Defendant is a Purchaser who hath been Thirty Years in Possession tho' that doth not appear in the Case And it was said That as to the Notion of a springing contingent use 't is hardly intelligible in it self and by no means applicable to this Case because here are no words in this Deed that carry any relation to a future time or Contingency and the Objection is only this That the Conveyancer was mistaken in his Judgment or that the parties knew not what they meant or that they meant to create such an Estate and in such a manner as the Law will not allow and neither of these are Reasons sufficient to prevail for the Reversing of a Judgment given according to the Rules of Law by which Men's Inheritances have all along been governed and upon which many Estates do now depend 'T was further urged That the contrary Opinion which must be advanced to annul this Judgment would reder the Law and Men's Conveyances as doubtful and uncertain as last Wills and Testaments and submit Men's Titles to the Arbitrary Power and Will of those that shall Judge of them It is to impower them to suppose intentions where not expressed and to raise uses by Implication where they were never designed And in short 't will destroy all the difference between good and bad Conveyances and enable Men to limit uses and raise Estates contrary to and in different manner from what the Law hath hitherto allowed it will render Purchases more uncertain than they are at present and that 's more than enough already and the consequence must be to produce a confusion in property c. wherefore upon the whole it was prayed That the Judgment might be affirmed and it was affirmed accordingly Watts al' versus Crooke APpeal from a Decree in Chancery The Case in short was this That Peter Crooke and Elizabeth his Wife who was Sister of the half Blood to George Watts claimed to have an equal share with John Watts and Elizabeth Camfield who were Brother and Sister of the whole Blood to the Deceased of his Personal Estate and a Decree was made in Chancery in favour of Crooke and his Wife It was argued on
Appellants were relieved Richard Carew who married Penelope would have no Portion with her 'T was answered That that could not alter the Case the Agreement and Intention of the Parties being the most considerable Matter and besides Richard enjoyed the Estate during his Life without impeachment of Waste And as to the Debts 't was answered That those were no Ingredients in the Question however there would be 4000 l. paid towards it and the Personal Estate was more than enough to pay the residue For which and other Reasons 't was prayed that the Dismission might be Reversed On the other side it was insisted on with the Decree 1. That the Limitation by the Settlement in July 1674. to the Heirs of Penelope upon payment of 4000 l. by them to the Heirs of Richard Carew within Twelve Months after the death of Richard and Penelope without Issue at the time of the decease of the Survivor of them is a void Limitation the Fee-simple being before limited to Richard and his Heirs and so not capable of a further Limitation unless upon a Contingency to happen in the Life of one or more Persons in being at the time of the Settlement which is the furthest that the Judges have ever yet gone in allowing these Contingent Limitations upon a Fee and which were the Bounds set to these Limitations by the late Lord Chancellor Nottingham in the Case of the Duke of Norfolk that tho' there were such Expressions as had been read on the other side yet the Bounds set by him to these Limitations were only dependent upon Life or Lives in being and never as yet went any further And if they should be Extended and allowed to be good upon Contingencies to happen within Twelve Months after the Death of one or more Persons they may be as well allowed upon Contingencies to happen within a Thousand years by which all the Mischiefs that are the necessary Consequents of Perpetuities which have been so industriously avoided in all Ages will be let in and the Owner of a Fee-simple thus clogged would be no more capable of providing for the Necessities and Accidents of his Family then a bare Tenant for Life 2. If this Limitation were good 't was urged That the Estate limited to the Heirs of Penelope was virtually in her and her Heirs must claim by Descent from her and not as Purchasors and by Consequence this Estate is effectually barred by the Fine of Penelope the design of limiting this Power to the Heirs not being to exclude the Ancestor but because the Power could not in its nature be executed until after the decease of the Ancestor it being to take effect upon a Contingency that could not happen till after that time and this Bill and Appeal was not only to have the said Richard Carew who married Penelope to have not one Farthing Portion with his Wife but to make the now Respondent Sir Richard Carew to lose the 4855 l. which his Father Sir John Carew paid as charged on the Lands in question For which Reasons and many others well urged about the Mischief and Danger of Perpetuities and their Increase of late years to the intangling and ruine of many Families it was prayed that the Decree of Dismission might be affirmed but the same was Reversed Sir William Morley Knight of the Bath Plaintiff Versus Peter Jones Defendant WRit of Error to Reverse a Judgment in B.R. in Ejectment upon the Demise of Bellingham upon a Special Verdict which finds That Anne Bowyer Spinster was seized in Fee of the Mannor of Frencham that the said Anne and Edward Morley Esq and Sir William and J. Wells ante tempus quo c. viz. 22 July 1664. did make and as their Deed deliver a certain Indenture with their Seals sealed whereby the said Anne demises the Mannor aforesaid to Sir William and Wells and their Executors for one Month from the Day next before the Day of the Date that Sir W. and Wells entred and were possessed that they the 23d of July in the said Year sealed and as their Deed delivered another Indenture with their Seals sealed whereby the said Anne reciting a Marriage intended between Anne and Edward and that Edward had agreed to settle a Jointure out of his Lands to the value of 300 l. per Annum and that the said Anne had agreed in case the Marriage took effect and a Jointure were made as aforesaid to settle the said Mannor on him and his Heirs and to particular Trusts after-mentioned until the same be performed She the said Anne in consideration of the Marriage and in performance of the Agreement on her part Bargains Releases and Confirms to Sir W. and Wells their Heirs the said Mannor and all her Right c. and the Reversion c. in Trust for the said Anne and her Heirs until the Marriage take effect and assurance of a Jointure be made as aforesaid and after such Marriage and Assurance of such value as aforesaid then to the use of Edward and his Heirs c. Then the 1st of August 1664. a Marriage was had then the 29th of Jan. 1665. a Deed is Executed between the said Edward and Anne of the first part and Young and Truster as Trustees on the other part reciting that a Fine is already acknowledged and agreed to be levied in due Form of Law next Hillary Term between the said Young and Truster Plaintiffs and the said Edward and Anne his Wife of the said Mannor of Frencham and thereby declared that the said Fine should be to the use of Edward and his Heirs Two days after the Execution of that Deed and before the Fine levied viz. 31 Jan. 1665. another Writing indented was made and executed under Seal between the said Edward of the one part and the said Anne of the other part whereby they both in Consideration of the said Marriage and other good Causes did Covenant Consent and Agree to revoke all former Grants Bargains Contracts Writings Covenants and Obligations made or done between them or any other for them until the said Edward had performed the Agreements in the said Marriage Settlement on his part both in Law and Equity and that in default thereof it might be lawful for the said Anne and her Heirs to enter into the said Mannor and Land conveyed by the said Settlement without the lett of the said Edward and his Heirs Afterwards the Fine was levied Octabis Purificationis which was the 9th of February in that Term And afterwards by Indenture between the said Edward Morley of the one part and one Henry Doble of the other part dated 9 July 1666. the said Edward in consideration of 600 l. Mortgages the said Mannor to Doble and his Heirs Then the Money not being paid by Edward Morley to Doble Doble did 2 June 1676. in consideration of 600 l. with Interest paid by Sir William Morley conveys the said Mannor to one Thomas Young that Edward Morley did never convey the Lands agreed
afterwards the 20 Aug. 25 Car. 2. he being so seized did Make Seal and as his Deed deliver a certain Writing purporting a Surrender of the said Lands to the said Sir Simon Leach which Writing was prout c. Then they find that the said Simon Leach the Brother non fuit compes mentis sue tempore confectionis sigillationis deliberationis scripti illius c. That afterwards viz. 10 Nov. 25 Car. 2. the said Simon the Brother had Issue of his Body on the Body of the said Anne his Wife Charles Leach that the said Simon died and Charles Leach the Lessor of the Plaintiff is eldest Son and Heir of the said Simon c. Et si videbitur Cur ' quod c. Upon this Verdict there was Judgment for the Plaintiff And now it was argued That the said Judgment was Erroneous and said that in the Case there were two Queries 1. If this were a good Surrender there being no Acceptance or Agreement by Sir Simon before the Birth of the first Son Charles But this was not insisted on before and therefore waived here the same having been adjudged by the Lords to be a good Surrender even to an Infant without Acceptance in another Action between the same Parties which you may see reported in 2 Ventris 198 208. Then it was argued on the second Query That the Lessor of the Plaintiff in the Ejectment being a Remainder Man in Tail cannot take any Advantage of his Father's Lunacy That in this Case he could claim no Title as Heir at Law to his Father or Uncle because of the intermediate Remainder to the Defendant in Tail so that quoad this Estate he is as a meer Stranger and not as Heir and tho' he were able to avoid it by Writ or the like yet it being once good the particular Estate of Simon the Father of Charles was determined before the Contingent Remainder to the first Son could take place and consequently it can never after revive Then the Question is Whether this Surrender by a Non compos being an act done by himself and not by Attorney be void or only voidable There 's no express Case that a Surrender by one who is Non compos to him in Remainder is void Perhaps 't will be said as it hath been That the Acts of a Madman are meer Nullities by all Laws in the World But to this 't is an Answer That the Laws of England have made good and honest Provisions for them so as to avoid their Acts for the Benefit of the Party of the King and of the Heir But it was repeated that this was a Contingent Remainder and if it could not vest when the particular Estate did determine whether by Death or Surrender it never could vest at all for a future Right to defeat the Surrender as Heir cannot support such a Contingency a present right of Entry would but if no such present right the Remainder is gone for ever and here was no such in Charles If Tenant for Life make a Feoffment with condition of Re-entry the Contingent Remainder shall never arise again tho' the Condition be broken and a Re-entry were made So is the Case of Purefoy versus Rogers 2 Saund. 380. Wigg versus Villers 2 Rolls Abridg. 796. and then Charles cannot avoid this Deed for the avoiding of a Deed is to take somewhat out of the way in order to the revesting of somewhat but here was nothing to work upon for if the Surrender were good for a Moment the particular Estate for Life was once gone and consequently for ever and this must hold unless the Act were totally void Then 't was argued That during the Life of the Party 't was only voidable for the King by Office no Man can Stultifie himself and so is the great Resolution in Beverly's Case 4 Rep. and 1 Inst 247. and Whittingham's Case 8 Rep. and if it be not void as to himself it cannot be void as to others And tho' Fitzh in his N. B. says that he himself may have a dum non fuit compos that is not agreeable to the received Law for Beverly's Case was never shaken till now and Fitzh supposes it only voidable by saying that Writ doth lye There is also a Reason for this Rule of Law that a Man shall not disable himself by pretence of Distraction because if the Pretence were true he had no memory and consequently could not know or remember that he did such an Act and therefore 't is as it were impossible for him to be able to say that he was so distracted when he did it 't is for him to say what 't is not possible for him to know But they would compare this to the Case of an Infant yet even there all his Acts are not void his Bond is only avoidable he cannot plead that 't is not his Deed 'T is true that Acts apparently to his prejudice cannot be good as 1 Cro. 502. Suppose a Non compos Signs Seals and Delivers such a Deed and after recovers his Senses and agrees to it would not this be a good Surrender from the first Perkins sect 23. 1 Inst 2. and if it can be made good by a subsequent Agreement 't was not totally void and if not totally void 't is with the Plaintiff in Error The Law besides is very tender in case of Freeholds to make Conveyances void by bare Averments and this would be of dangerous Consequence if when there was no Inquisition or Commission of Lunacy during Life that thirty or forty years after a Conveyance it should be in the power of a Stranger to say that the Vendor was mad 't will make Purchasors unsafe Acts solemnly done ought to have a solemn Avoidance The 1 Hen. 5. cap. 5. Fine to be void 't is void as a Bar but yet it makes a Discontinuance and must be solemnly avoided Lincoln Colledge Case 3 Rep. Stroud and Marshal 3 Cro. 398. Dett sur Oblig ' The Defendant pleads that at the time he was of non sane memory and on demurrer adjudged no Plea and the Opinion of Fitzh held not to be Law And 3 Cro. 622. 50 Assis 2. Fitzh Issue 53. a Release by a Non compos which is much the same with a Surrender only one works upwards and the other downwards and after Recovery the Party agrees to it the same is binding 39 Hen. 6.42 and 49 Edw. 3.13 Then was mentioned the Provision of the Law in these Cases besides the Care of the Court of Chancery which protects the weak and unwary by Rules of Equity There 's a Writ de Ideota Inquirend ' and the express direction of the Writ is to enquire quas terras alienavit which shews that 't is not void The Statute of Prerogativa Regis is express Authority for it the Reason given is that such Persons Lands should not be aliened to their hurt or the King 's It must be agreed that before Office found the King cannot avoid
the Alienation even of an Ideot and then after Office the Practise is to Issue a Scire facias to him in possession or to the Alienee and so is Fitzh tit Scire facias pl. 2. 106. All these Methods prescribed by the Law would be useless if the Acts themselves were void Then 't is as certain that the Office must be found during the Parties Life and during the insanity and not afterwards If there had been an Office 't would only avoid it with a prospect as it would be in case of an Heir after death Even after an Office the King cannot have the Profits from the time of the Alienation which shews it not it not void from the beginning If a Suit be against an Ideot after Inquisition the Ideot cannot plead it but the King shall send a Supersedeas to the Judges suggesting the Inquisition so that even then the Party himself cannot avoid it As to the other way of avoiding it by the Heir it must be by Writ or Entry and till Entry or Writ the Act remains good But here 's no Contest with the Party himself or with his Heirs but with a Remainder Man This Act of Surrender was no tortious Act it wrought no discontinuance there was no Trust in him to preserve the Contingent Remainder A Feoffment with livery is allowed not to be void and yet that may do a wrong by discontinuance c. As to the pretence that a Warrant of Attorney to make livery is void that doth not reach this Case for here 's an Act done by himself which would have passed the Estate as by and from himself if he had been of sound Mind Then 't was desired that the other side would shew any such Case as this whereas multitudes of Gifts Grants Releases Bonds and other Specialties sealed and delivered by the Party himself are allowed to be good and the same reason holds for a Surrender made in Person and there 's no difference between a livery made in Person and a Surrender the Act being Personal and not by another under his Authority makes the livery good and so it ought to be here 18 Ed. 4.2 Perkins sect 139. And 't is observable in 39 Hen. 6.42 per Priscott upon the Inquisition 't is reseized and revested into the Interest of the Ideot and consequently of the King and if revested 't was once out of him Now here 's no prejudice to the Man himself by this Opinion he is taken care of and his Acts avoided by the King on his behalf and his Heirs may avoid them But that Strangers should take notice of them as void was denied and therefore prayed that the Judgment should be reversed On the other side it was argued with the Judgment That this never was a Surrender that 't was against sense and reason to allow the Acts of a Madman a Person distracted to be valid to any purpose that in case of livery it had been allowed to be only voidable by reason of the solemnity and notoriety of the thing but in case of a Deed or a Thing passing only by Deed 't was otherwise and Bracton Britton Fleta and the Register were cited where 't is declared who can take and who can alien and that a Madman cannot alien and Fitzh is of Opinion that the Writ of dum non fuit compos may be brought by himself that there was a notion scattered in the Books that such Acts are only voidable but the reason of the Law is otherwise 39 Hen. 6.42 hath the distinction that Feoffment with livery is good but if livery be by Warrant of Attorney 't is void If it be a Feoffment with Warranty by Deed and possession delivered with his own hands yet the warranty is void because the Deed is void Perk. 5. The Deed of a Mad-man is void if he grants a Rent 't is void If an Infant makes a Warrant of Attorney 't is void so is Whittingham's Case A Deed and a Will are not to be distinguished and by the same reason that the one is void the other is so Finch 102. is general All Deeds of a Man of non sane memorie are null 12 Rep. Shulter's Case 'T is an offence to procure a Deed from him The Civil Law makes all his Acts which he doth without consent of his Curator to be void A Madman is taken pro absente 'T is a Rule unaccountable That a Man shall not stuitifie himself that he shall not be able to excuse himself by the Visitation of Heaven when he may plead Duress from Men to avoid his own Act. 'T is absurd to say That a Deed procured from a Man in a Fever or in Bethlehem shall be valid to any purpose Fitzherbert who was a good Lawyer ridicules the pretence and maintains That he himself may avoid such Act. Then were cited 2 Inst 14. Lloyd and Gregory 1 Cro. 501 502. Perkins tit Grant 13. Then it was said That in this Case there needs not much Argument the Reason of the Thing exposes the pretended Law And the Judges have declared that this Surrender is void the word amens or demens imply that the Man hath no Mind and consequently could make no Conveyance Wherefore 't was prayed that the Judgment should be affirmed and without much debate it was accordingly affirmed Henry Earl of Lincoln by Susanna Countess of Lincoln his Mother and Procheine Amye Appellant Versus Samuel Roll Esq Vere Booth Hugh Fortescue Esq and Bridget his Wife al' Respondents AApeal from a Decree of Dismission in Chancery The Case was thus Edward late Earl of Lincoln who was Son and Heir of Edward Lord Clinton the only Son of Theophilus Earl of Lincoln deceased being seized in Fee of the Mannors of c. after his Mothers decease who is yet living and of other Lands of about 3000 l. per Annum part of the ancient Estate of the Family And designing that in default of Issue-Male by himself his Estate should go with the Honour made his Will 20 Sept. 34 Car. 2. and thereby devised the Premisses to Sir Francis Clinton for Life Remainder to his first and other Sons in Tail-Male with many Remainders over to such Persons in Tail-Male to whom the Honour might descend and directed that his Houshold Goods at ...... should remain there as Heir Loomes to be enjoyed by the next Heir-Male who should be Heir of Lincoln and made the said Sir Francis the Appellants Father and after his Death Earl of Lincoln Executor On the sixth of Novemb. 36 Car. 2. Earl Edward made another Will in writing in like manner with the alteration of some Personal Legacies and afterwards in April 1686. and in Dec. 1690. did republish his Will Then Earl Edward sold part to Richard Wynne Esq for 24491 l. 3 s. 6 d. and mortgaged the Premisses in question to him for 12200 l. Then Earl Edward by Deeds of Lease and Release dated the 27th and 28th of April 1691. conveys his whole Estate to
the Grantee for 't is plain from the whole Contexture of the Deed that the Defendant was to have nothing in the Term till the Death of the old Man and his Wife It was undoubtedly the meaning and design of all the Persons concerned that the Defendant only should have the Residue after his decease Then that the Law will not permit this is plain from the Books for that 't is uncertain how much or if any of the term will remain or be in being at the death of the Grantor or Assignor that the Law rejects such a small or remote Possibility that Man's Life in the Eye of the Law is of so great a regard that 't is presumed to be of a longer duration than the longest term of years That this is an old Maxim upon which Thousands of Properties do depend that tho' some Mens reason may not approve it 't is not to be altered but by the Legislature that the Law first prefers Inheritances or Estates descendible then Freeholds or Estates for Life then Chattels real or Terms for Years The Law values and regards what a Man and his Heirs shall enjoy before that which he himself only can enjoy and what he himself may enjoy during his Life before what he may have only for a certain limited time the which he may by any supposal survive These are known Truths 32 Assis 6. Plowd 521. If a Man be possessed of a Term for 100 years and grants so many of them as shall remain at the time of his death this is void for the uncertainty otherwise if it be by Devise because there nothing takes effect till death and then 't is certain how many years he is to enjoy it 'T is true a Lease of Land for Forty years to commence after a Man's death is good because 't is certain that the Land shall be enjoyed for Forty years but here non constat in certain that this Deed could take effect for a year an hour or at all Bro. tit Lease 66. Plowd 520. A Man possessed of a Term grants it to another during Life 't is as much as during the whole Term tho' never so long because Life is presumed longer so if he grant all the Term that shall remain after his Death 't is all void because he reserves to himself the whole for a greater includes the less and for Life is the longest of the two These things are not to be disputed If both Premisses and Habendum had had this Limitation the other side must have agreed it to have been void ab origine and nothing to have passed by this Deed. But then the Objection is That the whole Term passes by the Granting Part and then the Habendum is void because 't is repugnant To this it was answered That in a Deed each part hath its proper Province The Office of the Premisses is to express the certainty of the thing granted the Habendum is to express the quantity and limitation of the Estate 1 Inst 6. Plowd 196. Lofield's Case 10 Rep. 107. And according to Littleton's Text Sect. 370. all the parts of the Indenture are but one Deed in Law from whence it was inferred That the Habendum is never to be rejected but when there is a manifest express and particular Contradiction never when the Habendum doth apparently shew the Parties Intention Here the Lessee for years grants totum Cottagium suum c. The Grantee or Assignee if there be no Habendum hath but an Estate at will whereas if he grants all his Estate and Interest in such a Cottage there the whole Term passeth This is the express Opinion in Griffin's Case 2 Leon. 78. Case 102. and there said to have been lately so adjudged in Wynnibank's Case in B. R. Now here 's nothing in the Premisses but what is general not the whole Estate granted nor is it said for how long time he shall enjoy it and therefore the Habendum cannot be said to be repugnant or contradictory because the first is not express In Stukely's Case Hob. 170 171. upon the Case of Grants and Exceptions is the learning of Habendums laid down if it had been a Grant of all his Estate Habendum after his Death there the Habendum shall not frustrate the Grant but if the Premisses give no certain or express Estate there you may alter and abridge nay you may utterly frustrate it by the Habendum these are the words of the Book Then was cited 2 Rolls abr 66. and 1 Inst 48. b. and the same Case of Hodge and Crosse in 3 Cro. 254 255 where 't was ruled That the Habendum tho' void shall controul the implied Limitation in the Premisses 't was a Feoffment of Lands in London Habend ' to the Feoffee and his Heirs after the Death of the Feoffer And 't was argued in that Case That the Habend ' was void but resolved That nothing passes because it appears to be the Intent of the Party that nothing should pass but in futuro for the Premisses could pass nothing but by Implication and that was nothing at all because the Intent was to pass nothing presently and tho' there were Livery made yet that Livery could operate only secundum formam Charte and therefore the whole was void the reason was because the first was General tho' the Law would have given a particular Estate for Life by the Livery yet because the Party gave none expresly by particular Words the Habendum was not to be rejected many of the Rules in Buckler and Harvey's Case 2 Rep. 55. are applicable to this And altho' there be a Difference where the Deed passes the Estate and where Livery or other Ceremony is requisite as to many purposes yet still the Distinction is where the Premisses do not give all the Parties whole Interest or some other particular Estate but is General there the Habendum shall not be rejected as repugnant 2 Rep. 23 24. Baldwin's Case As to the Words together with the said recited Lease that can only mean the Indenture or Writing for the Adjective recited implies the Intent to be such Recited signifies only a Rehearsal or Repetition of Words spoken or written before and so is Recitare Testamentum Calvin's Lexicon and 't is joined with the other Writings and Evidences concerning the Premisses and doubtful Words are to be construed according to the Nature of the things expressed and mentioned with them Lease in it self imports only the Conveyance or Instrument of Conveyance not the Interest in the thing conveyed if by Writing 't is called a Deed or Lease in Writing if otherwise a Lease Parol Thus is it explained in Blunt's Law Dictionary and in Knight's Case 5 Rep. 55. where all the Parts of it are described A Man may give away his Lease and yet retain his Estate or Term he may deposite it as a Pawn or Pledge and the Party in whose Custody 't is so lodged may maintain Trover or Trespass if it be taken from
the rest of the Shares to be enjoyed according to his Will and discharge the Fee-Farm Rent with which they are charged And in case he shall not do so he gives the said Shares he should otherwise enjoy by the Will to and amongst all other his Children and their Heirs equally to be divided amongst them Simon Middlâ—ton died seized the 20 July 1679. and after his death Rebecca having attained her Age of 21 Years died Hezekiah after seisin of his Share died under 21 Years and unmarried Anne one of the Five younger Children which Five claimed the said Hezekiah's Share by Lease and Release settles the fifth part of the Share late her Brother Hezekiah's upon her self and the Plaintiff Bennet Swayne whom she afterwards married and after to the Children that should be between them Remainder to the right Heirs of the Survivor of them two Anne died without Issue and Bennet Swayne after her death received the Profits of that fifth part of Hezekiah's Share to the value of 20 l. That Benjamin Middleton was the only Brother of the whole Blood and Heir of Hezekiah Et si c. Upon the arguing of this special Verdict the Court below was of Opinion That Benjamin was intituled to Anne's Share of Hezekiah's Part as he was Brother and Heir of Hezekiah viz. That by the Will the Fee-simple and Inheritance of a Thirty-sixth Part or Share of the New-River Water was given to and vested in each of the youger Children and that on the Death of Hezekiah one of the younger Children unmarried under One and Twenty Years of Age by the Clause whereby the Shares of the youger Children dying before Twenty One and unmarried are given to the surviving Children Share and Share alike the five Survivors became Tenants in Common and each was seized of a fifth part only for Life and not in Fee That the Reversion of Hezekiah's Share expectant on the deaths of the younger Children descended to the said Benjamin his Brother and Heir and that he on the death of Anne ought to have enjoyed that Fifth-part in Possession and therefore the Profits of it received by Swayne were due to Benjamin and Judgment accordingly given there for Benjamin And now it was argued That this Judgment was erroneous for that by Virtue of the said Devise the said Anne had an Inheritance in her part of Hezekiah's Share for these Reasons 1. It is well known and agreed That a Part or Share in the New-River is an Inheritance and therefore the Devise of all that Part or Share to any Person is a Devise of that Part and Share to such Person and his Heirs and is as much as if a Person being seized in Fee of Lands should say in his Will he devises all his Estate in those Lands to J. S. it could be no question but such a Devise would convey the said Lands to such Devisee and his Heirs 2. The Share of Hezekiah was given to him and his Heirs proportionably charged with the payment of the Fee-Farm Rent to his Majesty and with 100 l. per Annum to Henry M. and his Heirs and also with 150 l. to his Brother Benjamin and being thus charged upon his dying before Age or Marriage his Share with the Profits thereof thus charged is given to his younger Brother and Sisters the Survivor and Survivors of them Share and Share alike Then 't is observable that the Fee-Farm Rent payable to the King his Heirs and Successors is 500 l. per Annum upon which account 't would be very difficult to conceive that the Testator by this Devise of the deceased's Part to the Survivors Share and Share alike did intend to such Survivors only an Estate for Life when at the same time he subjects and charges it to and with the proportionable payment of the said yearly Fee-Farm and the 100 l. to H. M. and his Heirs which are Rent-Charges in Fee and cannot reasonably be understood to be charged on Estates given barely for Life Besides The Point here is upon the Construction of a Will and the Testators true Intent and Meaning in any part that is obscure ought to be collected out of any other part or words of the Will that may explain it Now it being plain that Hezekiah's Part was a Fee-simple and thus charged it seems to be as plain that the very Inheritance of that Part should upon his death go and remain to the Survivors Share and Share alike that is to say That they should be Tenants in Common in Fee-simple of that Part the same being thus chargable with the two Rents and with the 150 l. to Benjamin for otherwise this Devise over which was designed in their favour and for their benefit might have turned to some of their Losses and Prejudice for they might have paid the 150 l. to Benjamin and have died before they were re-imbursed out of Hezekiah's Share had the same been only an Estate for Life and it cannot easily be supposed that he intended his youngest Children by the second Wife should have a better Estate in his Shares of the New-River Water devised as aforesaid then the younger Children by the first Wife had but that their Shares in it should be equal but by this Construction Benjamin by the second Venter must carry away Anne's Share from her Sisters and Brother of the first Venter here 's no need of the common Care in construing Wills not to disinherit an Heir by general words for Hugh is disinherited by this Will whether this surviving Interest be a Fee or for Life The Intention here was to make an equal Provision for all the younger Children the Part and Share of the Person dying is the Inheritance in the Part and Share of the Person dying in the New-River Water The three Sisters were to have their Shares discharged of the Fee-Farm Bent but if this be only an Estate for Life then those who were designed to have the least benefit by the Will are to have the greatest for they are Heirs to Hezekiah whereas the Children by the first Venter seem to be most favoured by the Will because they are to have their Bequests free from those Incumbrances The Testator recites his own Scisin in Fee of so many Parts and Shares and then devises those Parts in Fee how can this Clause of Limitation to Survivors be construed to mean otherwise then that the whole Fee of that proportion should survive The Cases cited in Rolls on the other side are only Devises of the Land and not of his Share Then 't was said That here was no Tenancy in Common that 't is true equally divided and equally to be divided make a Tenancy in Common but 't is upon the account of the word divided that to two equally will not be so construed 1 Aâ—d 29. and if the words equally will not why should Share and Share alike these words do not shew any partition of the Estate in Fact nor in the Intention of the Testator
and one of these is necessary to prevent a Survivorship Wherefore upon the whole it was prayed That the Judgment should be Reversed On the other side it was argued with the Judgment That the same was Legal and ought not to be Reversed for that as to the last thing stirred it must be a Tenancy in Common the words Share and Share alike imply a Division or Partition in esse or in future and it hath always been so construed The distinction between divided and to be divided hath been long since Exploded as importing no difference Then it was argued That here was only an Estate for Life given by this Clause to the Survivors that a Devise of the Share is the same with the Devise of the Land that the Share doth not signifie the Estate or Interest but the Quantity or Proportion of the Thing here are no words to vest the Inheritance in the Survivors there are proper words to give an Inheritance to the Children and there are no such proper words used to divest it out of them and to give it to the Survivors upon the decease of any one of them under Age and Unmarried The Share or Part can only be the Thing it self not the Estate in the Thing and 't is all consistent if it be adjudged an Estate for Life Besides In the last Clause when he enjoyns the Heir to permit the Devisees to enjoy their Interests and in case he do not discharge the Fee-farm Rent he gives the rest of his Shares to and amongst all other of his Children and their Heirs equally to be divided among them The adding of the word Heirs in this Clause and omitting it in the former shews the Testator to have a different meaning in the first from what he had in the last Then were cited several Cases to prove that totam illam partem carried only the Thing devised not the Interest which the Devisor had therein 3 Leon. 180 181. 3 Cro. 52. 2 Leon. 156 56. and 1 Rolls Abridg. tit Estate 835 836. 1 Cro. 356. Latch 40. and as to the 150 l. appointed to be paid for to bind Benjamin Apprentice 't was said That the same was to Issue out of the Rents and Profits And therefore upon the whole it was prayed That the Judgment might be affirmed and it was affirmed accordingly Dominus Rex Versus Episcop ' Cestr ' and Richard Pierse Esq WRit of Error upon a Judgment in a Quare Impedit in C. B. given for the King and affirmed in B. R. The Case upon the Record was to this effect Mr. Attorney General declares That Queen Elizabeth was seized of the Advowson of the Church of Bedall ut de uno grosso per se ut de feodo jure in jure corone sue Anglie and being so seized did such a Day in the Twelfth Year of her Reign present to the said Church then vacant John Tymms as by the Inrollment of c. appears that he was instituted and inducted that Queen Elizabeth died seized of such her Estate of and in the Advowson aforesaid that the same descended to Jac. 1. per quod he was seized of the Advowson of the said Church ut de uno grosso c. That the Church became void by the death of Tymms and that King presented Dr. Wilson that he was admitted instituted and inducted that King Jac. 1. died seized of such his Estate in the said Advowson and the same descended to Car 1. and he became seized and the Church was again void by the death of the then Incumbent and Car. 1. presented Dr. Wickham that Dr. Wickham died that thereupon one John Pierse not having any Right to present to the said Church sed usurpando super dict' nuper Regem Car. 1. did present one Metcalfe who was inducted that Car. 1. died seized that the Advowson descended to Car. 2. that the Church became void by the death of Metcalfe that Car. 2. presented Samways who was inducted that Car. 2. died seized and the same descended to Jac. 2. who became seized ut de uno grosso c. who being so seized de regimine hujus regni Anglie se dimisit by which the said Advowson came to the present King and Queen and they were and are now seized of it ut de uno grosso c. That the Church became void by the death of Samways and it belongs to the King and Queen to present a fit Person but the Defendants hinder them ad dampnum c. The Bishop pleads that he claims nothing in the Advowson but as Ordinary c. The other Defendant Richard Pierse pleads That the King occasione premissor ' ipsum pred' Richardum impetere seu occasionare non debet quia dicit quod bene verum est quod Car. 1. devenit fuit seisitus of the Advowson aforesaid ut de uno grosso per se ut de feodo jure modo forma pred' in narr ' pred' specificat ' and did present Wickham his Clerk who was inducted But he says further That the Church being so full of the Incumbent and Car. 1. so seized as aforesaid the said Car. 1. by his Letters Patents c. bearing date at Canbury 19 Julij anno regni sui decimo quarto quas idem Richardus hic in curia profert ex speciali gratia certa scientia mero motu for himself his Heirs and Successors did give and grant cuidam Willielmo Theckston adtunc armig ' postea milit ' the Advowson aforesaid to hold to him and his Heirs to the use of him and his Heirs for ever prout per easdem Litteras Patentes plenius apparet by virtue of which said Grant the said Theckston was seized of the Advowson in question ut de uno grosso c. And he being so seized the Church became void by the death of Wickham posteaque ac eodem tempore quo superius in narr ' pred' supponitur pred' Johannem Pierse usurpasse super pred' nuper Regem Car. 1. He the said John Pierse usurping upon the said William Theckston to whom of right it then belonged did present the said Metcalfe who was accordingly instituted and inducted by which the said John Pierse was seised of the Advowson aforesaid and being so seized and the Church then full he the said Theckston did by Indenture 18 April 18 Car. 1. release to the said John Pierse and his Heirs all his Right Title Claim c. by which the said John Pierse became seized and he dying seized the same descended to the Defendant Richard as his Son and Heir by which he became seized and then the Church became void by the Death of Metcalf and continued so void for a Year and half and more and by that Reason Car. 2. to the Church so void per lapsum temporis in defectu Patroni Ordinarij et Metropolitani jure Prerogative sue Regie eidem Car. 2. devolut ' did present Samwayes his