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
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
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
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
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
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
the Respondents Davenport and Townsend and their Heirs to the use of him and his Heirs till his then intended Marriage should take effect And after such Marriage had then as to part in trust for his intended Wife and her Heirs and Assigns for ever And as to the rest in trust to permit the said Earl to receive the Profits during his Life and after his decease to sell the same for the best price and out of the Money raised by Sale to defray the Funeral Expences and pay his Debts and deliver the surplus as he should by his last Will and Testament in writing attested by three Witnesses or by another Deed in writing so attested appoint and for want thereof to the Executors and Administrators of the Earl with a Proviso That the said Earl by his last will and Testament or any other Deed in writing to be thereafter by him made and executed and attested as aforesaid might alter change determine or make void all or any the Trusts aforesaid and for want of such after to be made will or deed then in trust for the said Earl Edward his Heirs and Assigns for ever Earl Edward died without Issue of his Body and without Marriage The Appellant exhibited a Bill to have the said Deeds of Lease and Release set aside and to have the Will executed The Respondents as Heirs insist upon the Deeds as a Revocation and their Heirship was thus Theophilus Earl had Issue Edward Katharine Arabella and Margaret Edward died in the Life time of Theophilus leaving Issue Edward late Earl of Lincoln Katharine by Sir George Booth had Issue the Respondent Veer Booth Arabella by Robert Roll had Issue Samuel Roll and Margaret married Hugh Buscowen and had Issue the Respondent Bridget Fortescue And the Court assisted with the two Chief Justices and Mr. Justice Powel saw no Cause to relieve the Appellant And now it was argued with the Appeal That the Dismission was Erroneous there being Cause for Relief for that the Marriage never did take effect nor any serious Overture or Treaty was made by the said Earl on that behalf so as the said Earl did continue and at the time of his death was seized of the same Estate in the Premisses he had at the time of making and publishing the Will that if at Law the Deeds of Lease and Release were in strictness a revocation of the Will yet in Equity they ought not to be construed a Revocation of the said Will so often and so solemnly and deliberately made and published and upon so good a Consideration as the support of the Honour that the said Will was the Result of the Earls continued Intentions throughout his Life and the Deeds were only the effect of some sudden Fancy or Passion and even by those Deeds no benefit was designed to the Respondents for the disposition of the Surplus of what should be raised by the Sale was to be to his Executor Sir F. C. the Appellants Father and that did evidence a continued Kindness to him who never had offended him and no regard to the Respondents who tho' they were his Heirs general were related only at a distance and scarcely known by him and very well provided for by great Portions raised out of the Estate for their Mothers Then 't was argued that this Estate was meerly an equitable one and consequently Equity only ought to govern the disposition of it here 's no express Revocation pretended that a Mortgage in Fee is no Revocation for in Equity it doth not make the Estate anothers Here is a Noble Peer who is to sit in the Seat or Place of his Ancestors and therefore no Presumption Intendment or forced Implication ought to be against him or his Interest that this was designed to take effect in case the Marriage was had and not otherwise that here was no intention to revoke but upon the Contingency of his Marriage And there was cited Zouch and Barker's Case 1625. in the Lord Coventry's time Chancery Rep. and the Lord Boucher's Case in Edward the Sixth's time the Case was said to be in Dyer left as a Query and in 1 Rolls Abridg. And for these and many other Reasons and Authorities urged 't was prayed that the Dismission should be Reversed and the Appellant Relieved On the other side 't was insisted That tho' this was not an express Revocation by the use of words declaring it to be such yet 't was a true legal and effectual Revocation that these Deeds of Lease and Release did alter the Estate that here 't was for payment of Debts as well as in consideration of the intended Marriage that here was a manifest change of his Intention that both Will and Deed were voluntary and inconsistent and therefore the latter must stand that here were no Children or Creditors claiming under the Will that tho' the Subject Matter were an equitable Interest yet Equity ought to follow the Rules of Law that the Law made this a good Revocation and Equity ought to judge it the same way unless Fraud were proved to be used in the procuring of the Execution of these Deeds that the reason why a Mortgage even in Fee is not a Revocation is because a Mortgage doth carry upon the face of it a Defeasance 't is not reckoned an Inheritance to the Heir of the Mortgage but shall be Personal Estate and Assets to pay the Mortgagee's Debts This Deed was revocable by an after Will which shews the Party to have no regard for any former Will nor is there any reference to the Will then in being If a Marriage had happened 't would be agreed to have been a Revocation and if so when was the Will revoked by what Act by the Deed or by the Marriage That it was said that it certainly would have been revoked by the Deed and consequently ought to be construed a Revocation tho' no Marriage did ensue Revocations are the same in Equity as at Law and so was it held in the Case of the Earls of Bathe and Mountague The Statute of Frauds never was thought to extend to such Revocations as these Tho' Earl Edward's Intentions were once to support the Honour with the Estate yet it was always in his power to alter it The Lease and Release passed the Equity of Redemption and consequently 't is the same now between the Appellant and Respondents as if there had been no Mortgage in the Case 'T was further urged That a Will is but an imperfect Conveyance inchoate only and ambulatory as the Books term it till the death of the Party and another Will may revoke it and with greater reason may a Deed which alters the Estate and shews a change of the Intention of the Person who was Owner of it There 's no need of a Consideration to warrant the Revocation of a Will there needs no reason to be given for it 't is only the Mind of the Party which both makes and revokes the Will A Will is
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
Clerk who was inducted and afterwards died and the Church being so void the Defendant presented one Scroop his Clerk absque hoc quod praed ' nuper Rex Car. 1. obiit seisitus of the Advowson aforesaid in manner and form as the Attorney hath declared Et hoc paratus est c. unde petit jud ' et breve Episcopo c. Scroop pleads the same Plea mutatis mutandis The Attorney General craves Oyer of the Letters Patents produced in Court and they are read to him and are to this effect They recite That Queen Elizabeth had by her Letters Patents Anno 13. Regni sui granted to then Earl of Warwick all those Mannors of Bedall and Ascough c. and all Advowsons and Rights of Patronage thereunto belonging c. rendring a Rent and that Jac. 1. had granted the Rent to Sir Christopher Hatton et al' and that the said Mannors and Rents by good Conveyances in the Law had come to Sir William Theckston Knight and that he then had and held the same to him and his Heirs then 't is Know ye That we for divers good Causes and Considerations and of special Grace c. do ratifie and confirm to him the said William Theckston and his Heirs c. all those c. then it follows That whereas the said William Theckston by Virtue of the said Letters Patents made to the said Earl of Warwick and lawful Conveyance of the Premisses to himself made doth claim to have the Advowson of the Church of Bedall aforesaid according to the Tenour and Intent of the said Letters Patents and whereas he the said King Car. 1. upon the Death of one John Petty had by lapse presented Wilson and after his Death the said Theckston claiming the Right of Presentation the said King ad dictam Ecclestam sic vacantem ut ad presentatioâ—em snam pleno jure spectant had presented Dr. Wickham and that the said Theckston to recover his Right had brought his Writ of Quare Impedit upon which Issue was joyned That afterwards it was agreed between Theckston and Wickham that Wickham should enjoy it during his Life and that Theckston and his Heirs should have it quietly for ever after prout ex informatione dicti Wickham nostri Capellani in ordinario accepimus Nos igitur volentes That the said Presentations of the said Wilson and Wickham or either of them or their or either of their Institution and Induction should not hurt the said Theckston's lawful Right of presenting to the said Church for the future and it is our further Intention That the said William Theckston his Heirs and Assigns shall freely and peaceably have and enjoy the said Advowson of the said Church of Bedall according to the Tenour and true Intent of the said Letters Patents granted by the said Queen to the said Ambrose Earl of Warwick any Defect or Defects in the same Letters Patents notwithstanding And then follows the Grant it self in these Words Sciatis igitur quod nos ex uberiori et speciali gratia nostra c. Know ye therefore That we of our more abundant and special Grace and of our certain Knowledge and meet Motion have given and granted and do by these presents for our selves our Heirs and Successors give and grant to the aforesaid William Theckston the Advowson Donation free Disposition and Right of Patronage of the aforesaid Church of Bedall and all our Right Estate Title Interest and claim whatsoever of presenting to the said Church whensoever or howsoever it shall become void Quibus lectis anditis the Attorney General demurrs and the Defendant joyns and Judgment in C. B. pro Domino Rege upon this Reason only that this Grant was void the Advowson being in gross and nothing was intended to pass but an Advowson Appendant and so the King was deceived and upon a Writ of Error in B. R. the Judgment was affirmed upon another point viz. That the Grant pleaded was to William Theckston then Esq and afterwards Knight and the Grant set forth upon Oyer was to William Theckston Knight and there were Three Judges of Opinion with the Patent and one only against it and one Judge of Opinion with the Plaintiff in the Error as to both the Validity of the Patent it self and the Identity of the Person named in the Plea and Patent And now it was argued for the Plaintiffs in the Writ of Error That this Judgment was erroneous and first it was answered to the Objection of the Variance between Knight and Esq and it was said That in case of a Title of Worship the want of it could never viciate a Grant that even in Indictments upon the Statute of Additions a Gentleman may be called Esquire and so e ' contra and thus is 2 Iust that here constat de persono there 's nothing doth appear to shew them to be different that in case of Feoffments this Pretence will not hurt because the Person is ascertained and here 't is likewise the same it is William Theckston then Esq and afterwards Knight 't is but one Man they are two different Affirmations concerning the same Person that in the Case cited on the other side of the Earl of Pembroke in Jones's Rep. and in 1 Cro. 173. and Littlet 191.223 Richardson and Hutton are of Opinion That such Grant is good then 't was said That 't would be very hard to intend them several Persons in order to avoid a Grant that Veritas nominis tollit Erroreâ—â— demonstrationis Persone that he was William Theckston that if it had been said concessit Wilielmo Theckston generally that would have been sufficient and his being an Esq doth not exclude his being a Knight so that 't is not a false Description 25 Edw. 3.19 a Writ was abated because shewn that they were two Persons but held that if it had appeared that they had been but one 't would have been well Then was cited the Major of Lynnes Case 10 Rep. 126. 'T is true this is a Name or Title of Dignity to some purposes but not to all It must be agreed to be so upon Originals and Indictments and there is a very good reason for it because in that Case a greater Certainty is required that one Man may not suffer for or instead of another but in Case of Grants any Description of the Person is sufficient besides if a Name be mistaken in a Writ or Indictment another may be sued or preferred by the true Name but a Man cannot of common Right demand a new Grant tho' this be a Grant from the Crown 't is the same case for the King's Grant shall be taken most beneficially for the Support of his Honour 6 Rep. 6. that here 's no COlour to pretend two William Theckstons Then it was said That this at most was only an Addition of Enlargement to his Name not parcel of the Name it self for no more goes to that than Christian and Sirname then 't was said 't