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 was not repealed the 3 and 4 Edw. 6.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
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
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
Justice Dyer reports 228. the promoted Incumbent was dispensed with to retain for a term of years within which term he resigned and there upon the Avoidance the Prerogative was not admitted to take place because the Avoidance was by the Resignation and not by the Promotion Now if this Prerogative is to be interpreted stricto Jure it will have no place in this Case where the Incumbent promoted is dispensed with to retain for a term of time which is elapsed For The King's Prerogative will have a very Natural Construction by admitting his Title to present to all such Avoidances as commence immediately from and by the promotion This is the Avoidance which the Law intends and which the Law would always cause if not hindred to operate by Dispensation and this Avoidance is that therefore which the Prerogative must most principally respect and only that if it be to be strictly taken insomuch that were it in the sole power of the Archbishop to grant this Dispensation it seems the King's Title would clearly be set aside by it much more therefore should it be so when what the Law designs is prevented by the Act of the King himself For tho ' the Lord Vaughan saith That the King's Concurrence to the Dispensation is only for formality yet 't is plain that the King may force the Archbishop to grant it Now this Interpretation of the Prerogative seems to be already made in the Case cited upon a Resignation of the Incumbent dispensed with for as it is there intimated if the King's Title was not supposed to be gone by the defeating of the immediate Avoidance which the Law intended but the King would not permit It would be very strange that it should be eluded by the Resignation of the Incumbent to which the King was no Party for if the King had a Prerogative to present to this new this deferred this adjourned Avoidance it would be more reasonable to allow it to be hastened then defeated by such a Resignation before the time This Prerogative ought to admit such a Restriction from the reason of the thing and from the consideration of the Inconveniencies which may otherwise follow To the Subject A Patron might be content to let the King exchange a single Life and put in a Clerk in the place of one removed much rather then that the Living should be held on by one in Commendam that from thenceforth would be sure to leave it and be absent for a better Residence in a Palace yet they may as they have reason think it too hard that the King should as it were let a Lease of it first and afterwards put in his Clerk for Life and tho' the King doth commend here but for a small time yet he may for a longer He may perhaps as the Pope did often dispence with the Bishop to hold durante beneplacito and when the Incumbent is in danger of Death then present another so as the Patron may have his own Clerk not removed as was first intended but dispensed with to wear out his Life in the Benefice and yet after all have another put in The Crown may have Inconvenience by the straining of it further than this for all strains weaken if not break the thing it self This Opinion of theirs arises from the Principle my Lord Vaughan lays down That a Commendam neither gives nor takes away Right but only is a Dispensation to hold and he continues Incumbent still and it prevents an Avoidance and if so why should it not also prevent the operation of the Prerogative too As to the Case of Woodley 2 Cro. 691. they say 't is Law to prove the other Point for them If it be Law for them in that Point 't is Law against them in this That a Dispensation ad retinend ' prevents the Grantee of the next Avoidance The Case was thus A Man hath a Grant of the next Avoidance the Incumbent is promoted but with a Commendam Retinere for six years and dies the Grantee shall not present because he is to have the next Avoidance only and no other 'T is the words of the Book that when the Incumbent is created a Bishop and the King presents or grants that he shall hold it in Commendam which is quasi a Presentation and he is thereby full Incumbent and may plead as an Incumbent if the Grantee of the next Avoidance do not then present he hath lost his Presentation for he ought to have the next and he cannot have any other Now if this be so that a Commendam Retinere hath so much of a Grant in it and is so equivalent to a Commendam ad recipiend ' that it will set aside and frustrate a Grant of the next Avoidance and be it self taken for a presentation to the next Avoidance against the Grantee by the same reason it must be taken so against the King as a Presentation to an Avoidance and consequently his turn is served by it Much might be said against those Commendams as promotive of Pluralities and tending to the ruine of the Church and this out of our own Law-Books but it is not material at present 't is however to be observed that this is not a Commendatory for six Months during the time that the Patron may forbear to present such Person continued then is only commendatorius under the Bishop to provide for the Church as 't is his Duty to take care of it during that time 3. Admitting that the King hath such a Prerogative and that this Commendam tho' it gives the full perception of the Profits is not a fulfilling of the King's turn nor doth any way distinguish the Case or exempt it from the Prerogative yet this is a Case not within it and this doth appear of Mr. Attorney's own shewing in his Declaration upon the King's behalf He hath set it forth to be a Parish newly created by Act of Parliament a thing not in esse before It appears by the Declaration what that Act is it must be taken as 't is there set forth To this Declaration the Bishop hath demurred Now if by that Declaration it appears that the Bishop and not the King is rightfully intituled to present upon this Avoidance the Judgment will and must be accordingly for the Defendants Mr. Attorney by his Count doth agree an Avoidance within this Act of Parliament by the Promotion of Dr. Tennison and Mr. Attorney doth likewise admit and agree That the King is not Patron of this Benefice called St. James's he doth agree too That the King hath no Right given to have any Turn or Presentment by this Act for he saith 't is to be by the Bishop of London and the Lord Jermyn he doth also admit by this Declaration That Dr. Tennison was never presented to this Living that he came not into it by Virtue of any Presentation from any particular Patron nay That he did not come into it by any sort of Presentation whatever nay he
All their Arguments will hold as well to a Month Week or Days surviving of the Mother as to this of two Years and therefore it must be thus construed to be her Intent that the Devises over should take effect if the Child should not live to an Age of Maturity and Power of Disposition And as to the pretence of the Child's starving in the mean time there neither is nor can be any weight in that for the Interest and Produce of the whole during all that time must remain and be to and for the benefit of the Child Wherefore upon the whole Matter 't was prayed that the Decree should be affirmed and it was affirmed Philip Jermin and Sarah Vxor ejus ' Plaintiffs Versus Mary Orchard Widow Defendant WRit of Error to Reverse a Judgment of Reversal given in the Exchequer Chamber upon a Judgment given in the Kings Bench for the Plaintiffs in an Action of Trespass for the mean Profits after a Recovery in Ejectment and Possession had thereupon The Case was this upon Record The Plaintiffs declare that the Defendant 1 Sept. 1672. their Close c. vi armis c. did break and upon the Possession of the Plaintiff did enter and the Plaintiffs from their Possession did expel and remove and them so being removed and expelled for a long time viz. from the said 1 Sept. 1672. to the time of exhibiting the Bill viz. 6 May 1685. did hold out from the same by which they lost the Prosits thereof c. Et al' Enormia c. The Defendant by Plea takes Issue as to the Force and Issue thereon and as to part of the Trespass pleads the Statute of Limitations and as to the residue of the Trespass pleads that Sir William Portman made a Lease to one Trowbridge for 1000 years and by mesne Assignments derives a Title down to Thomas Nicholas and that he in his Life time by Indenture assigned to the Defendant The Plaintiffs Reply and as to the first part of the Plea viz. of the Statute of Limitations they demur and as to the other part of the Plea they tender a Traverse and deny that Thomas Nicholas did assign the Premisses to the Defendant The Defendant joyns in Demurrer as to the first part of the Plea viz. the Statute of Limitations And as to the other part she takes Issue upon the Traverse which Issue is joyned and a Venire awarded tam ad triand ' the two Issues quam ad inquirend ' de dampnis upon the Demurrer The Jury find that Thomas Nicholas was possessed in manner as the Defendant in her Plea hath alledged and that he did make Seal and as his Deed deliver the Indenture in the Plea mentioned which said Indenture follows in these words and so set forth the whole in which after a Recital of the Lease and a Deducement of the Title down are these words viz. The said Thomas as well for and in consideration of the natural Love and Affection which he beareth to the Defendant his Grand child as for other good Causes and Considerations hath granted assigned and set over and by these Presents doth grant assign and set over unto the said Mary her Executors Administrators and Assigns all the said Cottage Barn and Lands and all and singular other the Premisses herein before recited or mentioned with the Appurtenances to the same belonging or appertaining together with the said recited Lease and all Writings and Evidences touching the Premisses to have and to hold the said Cottage Barn and Premisses and every part thereof with the Appurtenances unto the said Defendant Mary her Executors Administrators and Assigns from and immediately after the Death and Decease of the said Thomas Nicholas party to these presents and Mary his Wife unto the end of the term and for and during all the rest and residne of the said term of 1000 Years which shall be therein to come and unexpired by and under the yearly Rents Covenants c. expressed in the said Original Indenture of Lease Then the Jury leave it to the Court whether the Deed of Assignment be good in Law or not and conclude specially if the Assignment be not good in Law then they find for the Plaintiffs and Assess Damages 50 l. and 40 s. Costs and thereupon c. And now it was argued for the Plaintiff and it was said in the first place That this Case was extraordinary that tho' the Majority of the Judges in Westminster-hall were of Opinion with the Plaintiffs yet they were forced to sue this Writ they had the four Judges of the King 's Bench and the then Mr. Justice Powell and the then Baron Powell concurring with the King 's Bench and the chief Baron Atkins being absent the other Five in the Exchequer-Chamber reversed the Judgment it having been resolved upon the Stat. of Eliz. which erects that Jurisdiction That the Concurrence of six are not necessary to reverse but only that six must be present to make a Court so that here were six to five for the Plaintiff and yet he hath lost it Then it was argued That there had been two Things insisted on below one was the finding of Damages generally and the other was as to the Validity of the Assignment and as to the finding it was said That the Matter of the Force is meer Form and if there had been no non prosequi the same could not make an Error That in C. B. and B. R. the Issue upon the vi armis c. is seldom or never taken notice of no Entry is made of it upon the postea at all unless a wounding or some such other special Matter were mixt with it in the same Issue That 't is held in the Case of Law and King 1 Saund ' 81. If nothing be answered to the vi armis in a special Plea 't is well upon a general Demurrer and the 7 Hen. 6. 13. and 1 Hen. 7.19 are plain That if the Party have the special Matter which he pleads found for him the vi armis shall not be inquired of So if the Defendant have Judgment against him upon Demurrer to the special Matter pleaded by him the vi armis shall never be tried tho' Issue were joyned upon it but the Party shall be fined upon the Capiatur c. without any Inquiry So is the King and Hopper 2 Cro. 599. in a Scire Facias on a Recognizance for the good Behaviour special Matter pleaded held That the Jury need not inquire about the vi armis if such Special Matter be found for the Defendant much more is it so in case it be found for the Plaintiff for there the Act which is found imports it c. and it shall be intended to be vi armis c. and the Book of Hen. 6. is full in it no need of any Inquiry in such Case And in this Point both the Courts having concurred the Counsel for the Defendant did not contest
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