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A05165
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The case of tenures upon the commission of defective titles argued by all the iudges of Ireland, with their resolution, and the reasons of their resolution.
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Santry, James Barry, Baron, 1603-1672.
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1637
(1637)
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STC 1530; ESTC S106989
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30,816
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68
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THE CASE OF TENVRES upon the Commission of Defective Titles Argued by all the Judges of Ireland with their Resolution and the Reasons of their Resolution DVBLIN Imprinted by the Society of Stationers Printers to the Kings most excellent Majesty 1637. TO THE RIGHT HONOVRABLE THOMAS Viscount WENTWORTH Lord Deputy generall of Ireland MY LORD THis work is Yours by more then one Interest and therefore it returnes naturally unto YOU for to lay aside my particular respects it being by Your Lordships favour that I serve his Majesty in this place You are Pater Patriae and not more by Your Office then by your love to this nation and your most equall and indifferent dispensation of Iustice next under his Majesty the Father of this Church and Common-wealth And for whom can an oblation of this nature be more proper besides all that is heere as it was at first spoken in an humble obedience to Your Lordships Order so it was after upon a noble invitation from You digested into this forme and it is now made publique by Your Commandement so that in all the passages of it it carryes Your Image Your Superscription and therefore by this dedication I doe not so much give it as restore it If there be any thing in it that is mine that answeares Your expectation even in that that it answeares Your expectation I have my reward for all that are below Your Lordship I hope it shall have this use it shall satisfie them that Your Lo proceedings in this businesse have bin in all points agreeable both to Honour and Iustice God leade Your Lordship by the hand untill You have finished those great and heroicall workes so happily begun May they all prosper to the high pleasure of Almighty God the encrease of Honour and Revenew to his Majesty of peace and prosperity to this Kingdome and to Your own immortall glory Your Lordships most humble servant James Barry The Case of Tenures vpon the Commission of Defective Titles Trin. 13. Caroli Regis AT the late enquirie concerning His Maiesties Title to the Countie of Mayo there was an Act of State published wherein it was declared that it was not his Maiesties intention to take from his people any thing that was iustly theirs and that therefore none who held any Lands or other Hereditaments whatsoever within that County by Letters-patents from the Crowne should be any wayes preiudiced by finding his Maiesties Title although their Letters-patents were not found or well and certaynely found in the great Office then intended to be taken but that they should have the same benefit of them as if they had beene specially found so as they did produce their Letters-patents or the enrollment thereof before the Lord Deputy and Councell at the Councell Board by a certayne day limited in the Act and that they were allowed by that Board to be good and effectuall in Law In pursuance of that Act there were severall Letters-patents produced and among the rest the Lord Viscount Dillon did shew forth Letters-patents obtayned from his late Maiestie and passed upon the late Commission of Defective titles Vpon perusall and consideration whereof his Maiesties Councell were of opinion that they were voyde in law And therefore it was thought fit and so ordered by the Lord Deputy and Councell that the doubt arising upon the Letters-patents should be drawne up into a Case and that that Case should be openly argued at the Councell Board by Councell learned on both sides The Case was after drawne up in these words KIng IAMES by Commission under the great Seale dated the second day of March in the fourth yeare of his raigne did authorize certayne Commissioners to grant the Mannor of Dale by Letters patents under the great Seale of this Kingdome to A. and his heires and there is no direction given in the sayd Commission touching the tenure to be reserved There are Letters-patents by colour of the sayd Commission passed unto A. and his heyres to hold by Knights service as of his Maiesties Castle of Dublin The question is whither the sayd Letters patents be voyde in the whole or onely as to the tenure THis Case was argued on severall dayes first by Nicholas Plunket for the Lord Dillon and Serjeant Catlin for the King and after by Iohn Pollexfen for the Lord Dillon and Osbaldeston Atturney generall for the King And because it was a Case of great weight and importance it was delivered unto the Iudges and they were required by the Lord Deputy and Councell to conferre and consider of it and to returne unto them their resolution concerning it but they upon private conference among themselves did not agree in opinion and therefore it was thought necessary for publique satisfaction that it should be argued solemnly by them all and therevpon in Trinity terme last the Case was argued by Ryves Puisne Iudge of his Maiesties Court of Chiefe place Barry second Baron of the Exchecquer and Cressy one of the Iudges of the Court of Cheife place and after on another day appointed for the Case by Mayart one of the Iudges of the Common pleas Bolton Chiefe Baron Lowther chiefe Iustice of the Common pleas and Shurly chiefe Iustice of the Court of chiefe place And for that I intend to make as summary a Report as I can I will first set downe such arguments and obiections as were made by them that argued for the mayntenance of the Letters patents It was obiected by them That the Letters patents were good for the Land and voyde onely as to the tenure For divers reasons 1. Regularly where a Man doth lesse then the authority or commandement committed unto him there the commandement or authority being not pursued the Act is voyde But where a Man doth that which hee is authorised to doe and more there it is good for that which is warranted and voyde for the rest Cokes instit sect 434. Perk. 189. vid. 8 Coke 85. But in the Case in question the Commissioners doe that which they had authority to doe and they doe more therefore for that which they had authoritie to doe that is to grant the Landes the Letters patents are good for that which they doe more that is the reserving of a tenure they are voyde Their authority was to grant the Mannor of Dale to A. and his heyres that they have fully done and if they had stayed there no man will deny but they had well executed their authoritie but they goe further and doe more and Reserve a tenure therefore for that more for that Reservation their Act is onely voyde 2. VVhere a Man hath authority to doe an act and hee doth it in substance though hee differ in the manner yet the authority is well executed As if a Man make a deede of Feoffment of Blacke-acre and whit-acre and a letter of atturney to enter into both Acres and to deliver seisin of both of them according to the forme and effect of the deede and hee entreth into Blacke-acre
Because that the Authority appeares within the letters patents themselves and exposition shall be made upon the whole patent 5. Although it be a most ample and large Commission yet it is bounded and circumscribed by the Law with an equall Construction S. that nothing shall bee done in other manner then the Authority warrants in prejudice of the King 6. Because that this reservation of a meane tenure is in other manner then the authority warrants and is in damage and prejudice of the King 7. And lastly because that this expresse reservation controlls the implication of Law and for that the King was deceived in his grant in that it cannot take effect according to his intention therein expressed For these Reasons they did resolve That this expresse Reservation of a meane tenure tends to the destruction of the whole patent and makes it voyde in Law both to the lands and to the tenure The Order of the Councell Board upon this Resolution of the Iudges By the Lord Deputy and Councell WENTWORTH WHereas there was an Act of Councell made at this Board and dated at the Abbey of Boyle the Eleaventh day of Iuly 1635. ordayning and establishing that the Lords Knights Gentlemen and Inhabitants their heires and assignes holding any Castle Mannors Lands Tenements or other haereditaments in the County of Roscoman by or under any effectuall letters patents from his Majesty or any of his Royall predecessors Kings or Queenes of England should have hold possesse and enjoy all the said Castles Mannors Lands Tenements and hereditaments of what kinde or nature soever they be to them and to every of them and to those who hold any estates under them against his Majesty his heires and successors in as full large ample free and beneficiall manner to all intents purposes and constructions as if the truth of their severall Cases and their severall letters patents passed thereupon had bene specially found in the great office then to be taken for finding his Majesties title to the said County and their letters patents accordingly entred in haec verba in the said office so that they did produce their said severall letters patents or the enrollments thereof before us the Lord Deputy and Councell at this Board before the first day of the then next Easter Tearme and that no possession should be taken from any such patentees or their assignes or tenants whose patents should be at this Board allowed to be good and effectuall in Law And whereas the like Acts of Councell were made at this Board for the severall Counties of Slygo Mayo and Gallway and the County of the towne of Gallway And whereas severall letters patents past under his Majestyes great seale of divers lands tenements and hereditaments in the said severall Counties by colour of a Commission under the greate Seale dated the second day of March in the fourth yeare of the Raigne of his Majestyes Royall Father King Iames of blessed memory were presented unto us at this Board which being taken into consideration by us we thought fit for our better Information of the validity of the said letters patents to call before us some of those who claymed by those letters patents as namely our very good Lord the Viscount Dillon of Costillogallen whom wee appointed to attend us with his learned Councell therein which he did accordingly Whereupon his Majestyes learned Councell and the Councell learned of the said Lord Dillon agreed upon a Case drawen up by them to be argued by them on both sides before us which Case followeth in haec verba King Iames by Commission under the greate Seale dated the second day of March in the fourth yeare of his Raigne did authorize certaine Commissioners to grant the mannor of Dale by letters patents under the greate Seale of this Kingdome to A. and his heires and there is no direction given in the said Commission touching the tenure to be reserved There are letters patents by colour of the said Commission passed unto A. and his heires to hold by Knights service that is to say by the twentieth parte of c. as of his Majestyes Castle of Dublyn the question is whither the said letters patents be voyde in the whole or onely to the tenure upon which case his Majesties learned Councell and the learned Councell on the part of the said Viscount Dillon argued before us severall dayes and wee desirous to take such a Resolution in the matter as might be equall and just held fit to advise therein withall his Majestyes Iudges who not agreeing unanimously in opinion wee adjudged it fit that every of them should argue it and deliver his Iudgement and opinion therein before us which they did accordingly Wherein five of them viz. the Lord Chiefe Iustice of his Majesties Court of Kings Bench the Lord Chiefe Iustice of his Majestyes Court of common pleas the Lo Chiefe Baron of his Majestyes Court of Exchequer Baron Barry and Iustice Rives concurred in opinion clearely that the letters patents were voyde in the whole and two onely viz. Iustice Mayart and Iustice Cressy differed from those five in opinion holding that the letters patents were onely voyde as to the tenure we thereupon taking the same into consideration at this Board doe hereby adjudge order and declare that the said letters patents are wholly voyde in Law and consequently that all such letters patents passed under colour of the said Commission and that mention the parcells granted to be held by Knights service as of his Majestyes Castle of Dublyn or by any tenure other then by Knights service in Capite generally are not good effectuall or valid in Law but voyde in the whole And therefore we doe at this Board disallowe all such letters patents soe granted as aforesaid of any lands tenements or hereditaments in any of the said Counties of Roscoman Slygo Mayo Gallway or the county of the towne of Gallway Given at his Majestyes Castle of Dublyn 13. Iuly 1637. R. Dillon Ad. Loftus W. Parsons Gerr. Lowther R. Bolton Chr. VVandesford Ph. Mainwaring Cha. Coote Geo. Radcliffe THE END