ultima intentio Regis but tota sola prima ultima intentio Regis are all to be taken and gathered out of the Commission or vvarrant from the king under the privy Signet upon vvhich they are passed And here the Iudges are to ground their judgement upon the Commission or vvarrant aswell as upon the Letters patents And to these seven Arguments or reasons all that was spoken by them that argued for the Letters patents may be reduced But it was resolved by the two chiefe Iustices the chiefe Baron Baron Barry and Iustice Ryves vvith whom Baron Lowther agreed in opinion though hee could not then argue by reason of sicknesse That the Letters patents are voyde in law both to the Land and to the tenure In this case five things did fall into consideration 1. The commission mentioned in the Case and the authority of it 2. Authorities and their severall sorts and how they ought to be pursued 3. The Authority in this case what it is if it be pursued as it ought to bee wherein it is not pursued 4. Tenures what they are in the grant that the reservation of a tenure is modus concessionis that it is not aliud or a distinct thing from the grant that tenures had their originall in England before the Norman Conquest 5. The reasons why the Letters patents are voyde in the whole and the authorities upon which the Resolution is grounded 1. The Commission mentioned in the case is the commission that was in force in the time of his late Maiesty for the strengthening of Defective Titles a Commission that was one of the greatest graces and bounties that ever before that time vvas vouchsafed by the kings of England to their Subjects of this kingdome a Commission that was agreed by all to bee a good and legall and effectuall commission and to contayne in it selfe full power and authority to grant Of vvhich the chiefe Iustice of the Common pleas in his argument fayd that upon this occasion he did seriously peruse it and in his judgement it was as full and strong a Commission for granting the Landes concurrentibus hijs quae de jure requiruntur as any hee had seene There vvas in the Commission as hee sayd plenitudo potestatis there is not any question of the Commission nor of the power granted by the Commission Neyther as it vvas declared was it the intention of his Maiesty to deny unto the Subject the full benefit of it in all things wherein the Commissioners had pursued their authority given by the Commission and proceeded according to the law For that that there was no direction in the Commission for the tenure it was no defect in the Commission as the chiefe Baron observed nor any omission or negligence in them that were trusted with the drawing of it it was done upon good aduise of purpose for the cases of them that vvere to passe upon that Commission were so different and there was such variety of tenures that it was not possible to give any certaine direction in the Commission concerning them Besides the intention of that Commission was not to give authoritie for the alteration or diminution of the Kings tenures it was intended onely for the establishing of the estates and possessions of the Subject And therefore there is not a vvord in it of any tenure so that the purpose of it was where any former tenure vvas in esse to preserve it and where no tenure was in esse to leave it to the Reservation of the Law So that now the Commission being cleared agreed to be good and legall and to contayne full power and ample authority to grant the Landes The sole Question vvill be of the pursuance of the Commission and whither this power granted by the Commission bee well executed and pursued by the Commissioners 2. To find out the law in this Case the severall sorts of authorities in our Bookes were considered and how they ought to be pursued For authorities these differences vvere agreed for Lavv. All authorities are eyther authorities in law or authorities in fait 8. Coke 146. the 6. Carpenters case Authorities in law are vvhere the law gives authoritie vvithout any authoritie from the party as the lavv gives authority to the Lord to distraine for his Rent and service to the ovvner of the soyle to distraine damage feasant to him in the reversion to enter and see if vvast be done and the like An authority in fait is where the authority is given by the party Authorities in fait are eyther Nude and bare authorities or authorities cloathed with an interest Cokes instit 52. Nude authorities are given eyther by 1. Deede 2. Commission 3. Patent 4. VVrit 5. or Act of parliament And for all those authorities it is a certaine rule and ground in our law that they are to be pursued strictly and precisely both for matter and forme or otherwise the act done by colour of that authority is voyde 10. H. 7. 15. But the execution of authorities that are cloathed vvith an interest are of a more large and favourable interpretation then the execution of those that are but bare authorities 5. Coke 94. 95. in Barwickes case 1. That authorities by Deede are to be pursued strictly and precisely both for matter and manner See the Case of 12. Ass 24. 26. Ass 39. There the Case vvas that the Plaintife did make a Charter of Fee-simple to the Tenant and a letter of Atturney to deliver Livery of seisin the Atturney delivers Livery upon condition this Livery is voyde for the authority is not pursued in the manner So on the contrary if the letter of Atturney had beene to deliver Livery of seisin upon condition and the Atturney makes Livery vvithout condition this is voyde Cokes instit 258. 11. H. 4. 3. A letter of Atturney is made to make Livery after the death of I.S. and the Atturney makes Livery during the life of I.S. all is voyde 40. ass 38. If I command a Man to make a Deede of feoffment in my name according to a Copy shewen unto him in Latine if hee make a Deede of feoffment according to the effect of the same wordes in English or French the Feoffment is without warrant for in that case hee does not pursue the authority in the manner 10. Henr. 7. 9. So where an authority is given to enfeoffe and he leavyes a Fine ibid. 10. Henr. 7. 15. 2. For authorities by Commission that they must be pursued it is the Earle of Leicesters case in Plowd Com. 380. The Earle of Leicester 1. Mar. was indicted of high treason before Sir Richard Sowthwell seaven other Commissioners by vertue of a Commission directed to the sayd Sir Richard and fourteene more After another Commission was directed to Sir Thomas VVhite and others reciting that where the Earle of Leicester stood indicted before Sir Richard Sowthwell and fourteene other Commissioners of divers Treasons c. It gave them authority
ad indictamentum praedictum recipiendum ipsum Robertum super inde audiendum c. ac debito fine triandum terminandum c. By colour of that Commission they did arraigne him upon that indictment found before eight of the Commissioners he confessed the treasons c. and had his judgement It was resolved that all that was done was voyde and coram non iudice for that they did not pursue their authority 3. Authority by Patent must be pursued The King licences an Abbot and Covent to Alien the Abbot sole Aliens it is voyde 21. Henr. 7. 7. 8. And the rule given by Frovvicke when the King makes any grant or Licence it ought to bee executed accordingly and strictly as if the King grants me Licence to make a feoffment by Deede I cannot make a Feoffment without Deede Nor e Contra So that the Licence must ever be pursued or otherwise the act done is not warranted by the Licence vid. 18. ass Pl. ultimo The Lord Cliffords case 2. Coke 80. Stamf. prarog Regis 31. The Licence was to levy a Fine of the Mannor of Dale to find two Chapleines and he would have levyed the fine leaving out the Chapleines and could not be suffered 3. Ed. 3. 5. Stamf. ubi supra vid. 30. Ed. 3. 17. 4. Authorities by VVrit must bee pursued In a praecipe quod reddat there must bee two Summoners therefore summons by one Summoner is not good Plowd Com. 393. 50. Ed. 3. 16. 5. Authority given by Parliament must bee pursued The Statute of Merton Cap. 3. ordaynes that in a Redisseisin the Sheriffe assumptis secum custodibus placitorum Coronae c. accedat ad tenementum illud de quo facta fuerit querela If the Sheriffe take but one Coroner it is not good for the act appoints a number two at the least which number ought to be satisfied or else the authority given by the Act is not pursued 23. ass 7. Plowd Com. 393. So that by the Rule of all these Books it is manifest that a Nude authority must be pursued strictly both for matter and manner or the act done by colour of the authority is voyde But in what Cases the Act so voyde for not pursuing of the authority shall bee voyde in the vvhole or in part onely this difference was taken Where hee that hath an authority doth that which hee is authorized to doe aliud and another thing distinct from that for which hee hath authority And where hee doth the same thing which hee is authorised to doe alio modo in another manner then the authority does warrant In the first Case it is good for that which is warranted and voyde for the aliud In the other it is voyde for the whole And therefore if a letter of Atturney be made to I. S. to make Livery of seisin in vvhite-acre and hee makes Livery in vvhite-acre and Blacke-acre there hee doth Idem aliud And therefore it is good for vvhite-acre that is according to his authority and pursuant to it and voyde for Black-acre which is Aliud from his authoritie Perk. 38. Otherwise it would bee if the letter of Atturney were to make Livery of one acre and hee makes Livery of two acres there it is voyde for both because he couples both togither and it is not named in certaine in the feoffment of vvhich Acre Livery shall be made according to 4. H. 7. 5. But in the case of Perk the Acre is named in certaine VVhite-acre and so a difference On the other side vvhen the same thing is done in another manner than the authority vvarrants there is Idem alio modo and therefore all is voyde As in the case of 12. Ass 24. 26. Ass 39. 40. Ass 38. 10. H. 7. 9. the cases already cited The true reason why in all those Cases the Act is voyde is because the Authoritie is executed Alio Modo And so is the reason expressely given in the booke of 12. Ass why the liverye is voyd because the Attourney doth it in other manner than the Authoritie warrants This is the difference that must rule the case one way or other And therefore the onely labour will be to find out under which part of that difference the case in question doth lye 3. For that First it will be necessary to enquire VVhat the authority in this Case is whether it be pursued as it ought to be wherein it is not pursued The Authority given to the Commissioners in this Case is twofold An Authority expressed in their Commission S. to grant the mannor of Dale And an Authority implied in lavv to reserve a tenure in Capite For where there is no direction for the tenure the law will imply a tenure in Capite as the best for the King In this Case then by the very Commission the tenure is made a part of the grant and Modus Concessionis for the authority though it bee twofold expressed and implied yet both being put togither that which is to bee done by vertue of that Authority is but one entire Act one grant a grant of the Mannor of Dale reserving a Capite tenure so that their Authority to grant the land is not absolute but sub modo so that they reserve a tenure in Capite And although the power to reserve a tenure in Capite bee onely implyed by the law and bee not given by expresse vvords in their Commission that makes no difference For by the rule of our Bookes Authorities implied in law as well as those that are expressed must be pursued Where a letter of Atturney is made to deliver Livery of scism the Atturney hath a tvvofold authority An authority expressed in his warrant and that is generall to deliver seisin And an Authoritie implied in lavv that is to deliver an Actuall and expresse Livery and not a Livery in Lavv. And therefore if the Atturney delivers seisin within the view though it bee vvarranted by his expresse authoritie yet because he hath not pursued his implied authoritie the Act is voyde And so it vvas resolved P. 3. Eliz. C.B. in Yarhams Case Cokes Instit sect 66. This then being their Authoritie S. to grant the Mannor of Dale and upon the grant to reserve a tenure in capite Novv hovv have they executed this authority There are Letters Patents passed to A. and his heires by Colour of the Commission to be holden by Knights service as of his Majesties Castle of Dublin Here they have not pursued their Authoritie for where by the Commission either a tenure in Capite ought to have beene reserved or else the tenure left to the reservation of the law They expressely reserve a tenure by Common Knights service That the Letters Patents as to this tenure thus reserved are voyde it was agreed on all sides But whither they should bee onely voyde to the tenure or whither the reserving of a tenure so divers from the tenure intended and warranted by the Commission shall destroy
upon Letters of warrant or Commission Letters Patents be made varying in any point materiall from the warrant or Commission and all this appeares within the body of the Letters patents themselves that the Letters patents are all utterly voyde And this hath beene ever agreed upon by reason of the difference betweene the manner of passing of Letters patents in England and Ireland But where the warrant or Commission and the variance doe not appeare within the Letters patents how it shall be ayded for the King by Averment or otherwise hath beene some doubt and Question 5. Although that it be true that this commission is of a vast and large extent yet it is not boundlesse for the law alwayes bounds and circumscribes these ample Authorities with reasonable and equall constructions without prejudice to others as it was resolved upon the Commission of Sewers upon which we have the Reported Cases in 5. Coke 99. Rookes Case 10. Coke 138. This Commission of Sewers gives power and Authoritie to the Commissioners To proceede according to their wisedomes and discretions which is a most ample power yet the law does bound and circumscribe it with an equall Construction S. that their proceedings ought to bee bounded with the rules of Reason Law and Iustice and that their taxes be equall and that all persons that bee subject to the danger or receive benefit by the Reparation be contributary to a ratable and equall contribution of the charge And if they doe otherwise their ordinances are voyde and they cannot make new inventions as Artificiall Mils for casting out of water c. For these generall Commissions are all accompanied in law with an equall and reasonable construction for the execution of them So this Commission is a most ample and large Commission for the securing of the estates of the subjects in their lands but yet it ought to bee so executed according to lavv reason and justice that they doe not prejudice the King in his tenures contrary to their warrant 6. Because that this Reservation of a meane tenure is in other manner than the Authority warrants and to the dammage and prejudice of the King If the Commission were to grant an estate for life and they grant an estate tayle or if the Commission vvere to grant in tayle and they grant in Fee All the patent is voyde because they doe it in other manner then the authoritie warrants for the Habendum is Modus Concessionis If they reserve another Rent then is vvarranted by the Commission or parcell an entire rent where the rent in charge ought to bee reserved although that it bee severall upon the survey yet the whole patent is voide because that they doe it in other manner then the Authoritie vvarrants for the Reddendum is Modus Concessionis Why then shall it not bee the same reason in this Case for here they reserve another tenure then that vvhich is vvarranted by the Commission and therefore they have executed their authority in other manner then their Authoritie warrants for the Tenendum also is Modus Concessionis It was granted by them that argued on the other side that if it bee prejudiciall to the King the whole Patent shall be voyde Novv it is most apparant that this implyed tenure if it be admitted will bee greatly prejudiciall to the King for the King shall loose his tenure and the fruite of his tenure in most Cases for ever and in all Cases for a long time and neither the Master nor the Atturney of the Court of VVards can helpe it And for that the course of Patents here in Ireland was observed First the Commissioners give warrant for drawing of the Patent and the reservation of this meane tenure the Kings Councell draw the Patent accordingly and so it passes the signature of the Lord Deputy the privy signet and the great seale then it is enrolled in the Chauncery All this vvhyle it is taken according to the tenure expressed in the patent vvhen it is enrolled it is transcribed into the Exchecquer and the transcript delivered into the Exchecquer by the master of the Rolls the Lord Chiefe Baron receives it and delivers it to the second Remembrancer and he puts it in charge according to the tenure expressed the Escheator and Feodary informe themselves of the Kings tenures there vvhere if they make enquiry the patent is produced in vvhich an expresse tenure is reserved they cannot judge the contrary and so it passes according to the expresse tenure And so have the Letters patents novv in question passed and the King by colour of them hath lost the profits of the Land and the benefit of the tenure 7. The expresse reservation in the Letters patents excludes the reservation and implication of Law Although as in the case in question it tend to make voyde the whole grant it is a sure rule in Law expressum facit cessare tacitum If the King vpon his Letters patents reserve no tenure it shall be a capite tenure but if another tenure be expressed that shall prevayle 33. H. 6. 7. per prisot In VVheelers Case 6. Coke 6. Where in a patent the vvordes of the Tenendum vvere Tenendum de nobis per servitium unius Rosae pro omnibus servitijs It vvas objected that the tenure as it is expressed cannot stand for that no tenure can bee vvithout fealty and the vvordes are per servitium unius Rosae pro omnibus servitijs 2. It vvas objected that in Case vvhere no tenure is Reserved or in Case vvhere it is expressed to be absque aliquo inde Reddendo the tenure shall be Knights service in Capite And therefore it vvas urged that the tenure in the principall Case must needes be a Capite tenure by Knights service and that the tenure expressed should be voyde and give place to the better tenure for the King These are strong objections yet Resolved in respect of that favour that is given to expresse Reservations that in the said Case fealty that is an incident to all services shall be admitted to stand vvith the vvordes and then the tenure expresly reserved vvas so compleate that it might vvell exclude the Knights service tenure vvhich othervvise the Lavv vvould have implyed Hereby may appeare the favour that is given to expresse Reservations and tenures that thereby a tenure in Capite by Knights service shall be excluded a tenure vvhich shall arise vvhere nothing is Reserved vvhich shall arise though the vvordes bee absque aliquo inde reddendo vid. Sr Iohn Molins case 6. Coke 5. It is agreed on the other side that vvhere the expresse tenure is good there it controlls the implyed tenure but in our Case it is voyd And vvhere a tenure expressed is voyde a tenure by implication of Lavv may arise But it vvas Resolved that although the expresse tenure bee voyde yet no tenure by Implication of Law shall arise against the expresse Reservation And so in the Case of a voyde Habendum vvhich stands
and delivers seisin secundum formam Cartae this livery and seisin is good albeit hee did not enter into both nor into one in the name of both and yet this is done in another manner then his authoritie warrants for his authority was to enter into both and to deliver seisin of both neyther of which hee doth no not so much as enter into one in the name of both So vvhen the Feoffment is made to two or more and a letter of Atturncy to make Livery to both and the Atturney makes Livery of seisin to one of the feoffees secundum formam effectum Cartae this is good to both and yet in that Case hee that is absent may vvayve the Livery Surely this is done by the Atturney in another manner then the authority warrants for his warrant was to make Livery to both and the intention of the Feoffor was that both should take and the estate bee setled in both and yet hee makes Livery to one onely and so that the estate may bee setled onely in him and yet hee hath well executed his authority for in substance hee hath done that which is commanded and though it differs in the manner it is not materiall both those Cases are put in Cokes instit sect 66. But in the Case in Question the Commissioners have done in substance that which was commanded them therefore their authority is vvell executed and the act they have done is good That they have done in substance that which vvas commanded them appeares in it selfe for their authority was to grant the Mannor of Dale to A. and his heyres this they have done And if they have added any thing to the grant whereby it may bee sayd to bee done in another manner yet the act being done in substance it shall bee good 3. That wherein they have exceeded their authority scilicet the Reservation of the tenure it is not of the essence of the grant Of the essence of a grant are onely Grantor Grantee and the thing to bee granted and apt words in an Instrument or Patent Besides of the essence of a grant it cannot bee for grants were at Common-law tenures were introduced by the Conquest Selden in his Not. to Eadmer 194. Bracton libr. 2. de acquir rerum domin The tenure is another distinct thing aliud from the Land in that they cannot consist in one person the Land is the thing granted that belongs to the Patentee the tenure is Reserved to the King that belongs to him the Reservation is aliud or supra or praeter the grant not alio modo And therefore the Letters patents may bee voyde for the tenure and yet good for the grant of the Land 4. Although it were admitted that the Reservation of the tenure bee not a distinct thing or aliud from that which they had authority to doe but is rather a doing of the same thing for which they had warrant in another manner then their authority does warrant yet it will not follow that the whole act is voyde For an authority given may bee executed in another manner alio modo then the Commission doth Warrant and yet stand good for that which is done according to the authority And that may be in these Cases 1. Where the authority is cloathed with an interest for there in many Cases he that hath the authority may vary from the authority And the act though it bee done in another manner shall bee good As where the custome of a Mannor is that the Lord may grant Landes by Copy of Court-roll in Fee if the grant bee in tayle or but for life this is good Stanton and Barnes his Case Hill 36. Eliz. Roc. 492. in B. R. Cokes instit sect 66. So where the custome was to grant Copyes for two lives and hee grants to the Husband for life and after to the Wife Durante viduitate This is good Downes and Hopkins Case P. 36. Eliz. B. R. The Statute of 32. Henr. 8. doth enable tenant in tayle to make a Lease for one and twenty yeares if he makes a Lease for twenty yeares onely or to one for tenne yeares and after makes a Lease to another for eleven yeares more this is good and so it hath beene Resolved in Tompson and Traffords Case Hill 35. Eliz. B. R. 2. Where the varying from the authority given is in letter or circumstance and not in a point materiall or in substance for that see the Cases cited before Cokes instit sect 66. Litt. 434. 3. Where the varyance from the authority although it bee in matter of substance is supplyed by operation of law As if a licence bee granted to a Copy-holder for life to make a Lease for tenne yeares if hee shall so long live the Copy-holder makes a Lease for tenne yeares absolutely without the limitation videlicet if hee shall so long live yet adjudged good and the Licence well pursued It was Hatt and Arrowsmiths Case Hillar 38. Elizabeth B. R. And in the Case in question where all agree that the Kings meaning in this Commission was that a tenure in Capite should bee Reserved albeit it bee not expressed in words or if it had beene in expresse termes that a tenure in Capite should bee reserved and they had onely granted the Mannor without reservation of any tenure yet the Law supplying this defect and raysing a tenure in Capite this shall make the grant good 4. VVhere the varyance from the authority is cured by the party himselfe by some other act As if Tenant in tayle Husband and Wife a Bishop c. who are authorized by the Statute of 32. Henr. 8. to make leases for one twenty yeares or three lives of Landes usually lett make a lease of Landes usually lett and of Landes not usually lett reserving one entire Rent all is voyde Shepheards Case But if Tenant in tayle will make such a lease and reserve the accustomed Rent for the Landes usually lett and another Rent for the Landes not usually lett heere the lease shall bee good for the Landes usually lett and voydeable onely for the other for by these severall reservations the varyance from the authority is Cured Tanfeild and Rogers Case Trin. 36. Eliz. B.R. 5. VVhere the varyance from the authority how materiall soever it bee is notwithstanding made voyde eyther by the Common-law or act of Parliament As where the King does licence I. S. to grant twenty Markes annuity in Mortmaine and hee grants the Annuity with clause of distresse by Hussey and Bryan chiefe Iustices and Starky chiefe Baron and Iustice Faierfax the addition of distresse is without warrant and voyde yet all admit the grant of the Rent good notwithstanding 2. 3. H. 7. grants 36. By the Statute of 1. Elizabeth a grant by a Bishop of an ancient Office of Seneschall-ship to two that had never before beene granted but to one is adjudged voyde 10. Coke 61. the Bishop of Salisburyes Case Put case then that such a
vpon the same reason It vvas adjudged in B. R. Betweene one Hegge and Crosse 33 et 34. Eliz. vvhich you may see in Bucklers case 2. Coke 55. Where the Case vvas Tenant for life makes a lease for yeares and after grants the reversion to A. Habendum from a day to come for life after the day the lessee for yeares attorns in that Case the Habendum is voyde yet that voyde Habendum makes voyde the vvhole grant and excludes the implication of Lavv in the premisses and no estate shall passe by implication of Lavv in the premisses against the expresse limitation of the party in the Habendum see the Cases cited before p. 26. So our Tenendum although it be voyde yet the expresse reservation in the Tenendum shall exclude the implication of Lavv. For that opinion of Martyn in 4. H. 6. 22. that vvas Cited on the other part that if land be given in frank-marriage reserving a rent the reservation of the rent is voyde by reason of the implyed tenure in frankmarriage that opinion as vvas said may vvell be doubted of for vvee find as good Authority against it in the old Tenures fol. 211 That the Reservation of the rent is good and destroyes the frank-mariage and makes it a Common Estate tayle But the best opinion is that both of them shall stand togither S. the gift in frankmarriage and also the Reservation of the rent S. that the donce in frankmarriage shall hold quitt of the rent untill the fourth degree be past and then the rent shall take effect and so vvas the opinion of the Iudges in VVebb and Potters Case in 24. Eliz. and so are the bookes to be understood 13. E. 1. formedon 63. 31. E. 1. tayle 31. 26. E. 3. grants 75. et 26. Ass 66. For the Case of Littleton 140. A man seised of certaine tenements vvhich he held of his Lord by Knights service at this day grants by license the same tenements to an Abbot in frankalmoigne the Abbot shall hold immediately by Knights service of the same Lord of vvhom his grantor held and shall not hold of his grantor in frankalmoigne In that Case they say the expresse tenure being voyde a tenure by implication of Law does arise It vvas Answered there is a difference betvveene the Kings Case vvhich it the Case in question and the Case of a Common person For the grants of a Common person the rule of Law is that the grant shall be taken most strongly against the grantor For the Kings grants the rule is that they shall be taken most beneficially for the King and most strong against the patentees And vvee have another rule that the grant of the King shall not be extended to passe any thing contrary to the intent of the King expressed in his grant And if the grant cannot take effect according to his intent expressed in his grant the grant is voyde And therefore for the rules put by them that argued on the other side that the patents of the King shall be taken in such sence and to such intent that they shall be good c. It may be Answered that there is another ground in our Lavv that when the King is deceived in his grant so that it cannot take effect according to his intent expressed in his grant the grant is voyde so the best a exposition is to make all these rules to agree together And therefore the rules put on the other side are true vvith this limitation S. Except the King be deceived so that his grant cannot take such effect as he intends by his expresse grant In the Lord Lovells Case 18. H. 8. B. Pat. 104. The King excerta scientia et mero motu grants lands to one and to his heires males if a Common person had made such a grant the Lavv vvould say that the vvord males vvere voyde and the fee simple should passe But vvill the Lavv make such a construction in the Kings grant No there the grant shall be voyde for he vvas deceived in his grant in that it cannot take effect according to his intent expressed in his letters patents And so in the Case of 7. H. 4. 42. 21. E. 3. 47. The Earle of Kents Case If the King hath a vvard of land or a lease of land for yeares and by his letters patents grants the land to another and his heires the grant is voyde and it shall not amount by construction to a grant of his estate or interest vid. 21. Ass 15. And the other bookes Cited in the Case of Alton VVoods upon this ground 29 Eliz. in the Exchecquer the Case vvas King H. 7. was seised of tvvo mannors S. de Ryton et condor he grants ex certa scientia et mero motu totum illud manerium de Ryton et condor adjudged that the grant vvas voyde The like Case vvas resolved 39. Eliz. vvhere the queene vvas seised of the Mannors of Millborne and Saperton in the County of Lincolne and the queene grants ex certa scientia mero motu totum illud Manerium de Millborne cum Saperton in Com Linc and it vvas held that neither of the Mannors did passe And yet if a Common person had made such grants the grantee in both the said Cases should have had both the Mannors So in our Case the King is deceived in his grant in that his grant cannot take effect according to his intention therein expressed For the Kings intention is to make a grant agreeable in all things to the Authority given to the Commissioners by the sayd Commission And that appeares plainely by the very vvords of the letters patents for the vvordes are Sciatis quod nos c. virtute ac secundum intentionem et effectum of the said Commission Dedimus et Concessimus c. as in the patent and he conceived that the vvarrant made by the Commissioners for passing the patent which here vvee call the fiant had bene according to the intent and effect of the said Commission And upon that warrant vvhich exceeded the Authority given to the Commissioners this patent vvas past yet still vvith a reference to the intention and effect of the Commission Now this grant cannot by any possibility take effect according to the Kings intention therein expressed for the Kings intention in the beginning of the grant is that it shall be according to the intention and effect of the Commission vvhich must be a tenure by Knights service in capite either by expresse Reservation or by implication and operation of Lavv. And the tenure reserved in the patent is a tenure by Common Knights service as of the Castle of Dublyn differing altogether from the intention and effect of the Commission so as it is not possible that this tenure expressely reserved can be according to the intention and effect of the Commission or that the intent and effect of the Commission can any vvayes acoord with the tenure expressely reserved in the patent So as it
is very plaine and manifest that the King is deceived in this grant and that it cannot take effect according to his intention therein expressed For the Authorities on vvhich their Resolution vvas grounded The principall Case vvas that of 12. Ass 24. vvhich as it vvas sayd vvas a Iudgement in effect in the point A Iudgement in a tyme vvhen the Law vvas as flourishing and the Iudges as learned as in any tyme either before or since A Iudgement approoved in all ages subsequent 26. Ass 39. 11. H. 43. c. And no Authority in all our bookes against it for the materiall Cases that have bene put on the other side are of Authorities accoupled vvith an Interest and by Consequence doe not come to the point in question And vvee see that the Authority of this Iudgement is so great and cleare that it is confessed by them that argued on the other part But the reason of the Iudgement given by the Iudge that gives the Iudgement is denyed S. pur ceo que il fait ceo en auter manner and a nevv reason is invented S. because he does not pursue his Authority Heere vvee finde them put to a straight S. to Confesse the Iudgement and denye the reason for vvho better knevv the reason of the Iudgement then the Iudge that gave it This nevv reason S. That he hath not pursued his Authority if it be examined vvill come to the first reason for if it be demaunded why he hath not pursued his authority it must be Answered-pur ceo que il ad fait ceo en auter manner que le authority soy garrant vvhich is the reason of 12. Ass But vvee have other Authorities in the point upon the same reason that of 10. H. 7. 15. vvhich hath bene remembred per Keble the most Learned Lawyer of that tyme quant home ad authority de faire ascun fait a un auter il doit pursuer son authority en matter et en forme there is Modus concessionis and by the Case that he there puts if he does it in other forme alio modo it is voyde If I enfeoffe a man to enfeoffe another and hee leavies a fine this is voyde yet the matter in substance is the same for a fyne is but a feoffment of Record but because that hee hath done it in other manner all is voyde 11. H. 7. 13. A letter of Atturney to make liverie to I.S. or I. N. and the Atturney makes livery to both the livery is voyde in all and it is not good as to the one and voyde as to the other but voyde in the vvhole because that he hath done it in other manner then the authority warrants 8. Cooke 85. In Sir Richard Pexhalls Case If the King licenses his Tenant to alien tvvo parts of his Mannor of Dale vvhich is held in Capite and he aliens all the mannor it is voyde in the vvhole and it is not good for tvvo parts and voyde for the third And the reason is because he doth it in other manner then the license warrants vid. 10. H. 7. 13. 38. H. 8. Dyer 62. 40. Ass 38. 10. H. 7. 15. There vvas a Report cited by the Chiefe Iustice of the Common pleas and the Chiefe Baron the Case vvas in C.B. in England T.M. 2. Caroli Betvveene George Bishop of Chichester plaintiffe and Iohn Freeman defendant Intr. Pasch 1. Caroli Rot. 207. And the Case vvas this The Bishop of Chichester vvas seised in fee in the right of his Bishoprick of Allingburne parke in the County of Sussex and he and his predecessors have anciently granted the office of Keeper of this parke for life vvith the fee of five markes Anthony Bishop of Chichester 2. February 44. Eliz. by his deede granted the Office of Keeper of the parke to one Freeman for life Et ulterius concessit pro executione officij predicti the ancient fee of five markes una cum a livery Coate or thirteene shillings foure pence for it Nec non pasturam pro duobus equis una cum the vvindfalls vvhich grant vvas confirmed by the Deane and Chapter And whither this grant vvas good against the successor or voyde upon the statute of Anno 1. Eliz. Cap. 25. vvas the question In vvhich the doubt vvas vvhither this Addition of a livery Coate pasturage and vvindfalls vvill make the vvhole grant utterly voyde or if the Lavv shall make such a construction that for this addition it shall be onely voyde and shall stand good for the other vvhich vvas the ancient fee and vvell granted And by Iustice Crooke and Harvy against Yelverton the grant is voyde in the whole because that the Bishop hath not pursued the Authority given him by the statute by reason of this expresse and nevv addition and yet they professe that they had rather have given opinion for the defendant for that he vvas a poore man and an ancient servant to the Bishop and yet in this Case the Addition and nevv Augmentation is a severall and distinct clause in the grant and the things added de novo are also severall and distinct in specie from the ancient Fee of five Markes And in the argument of this Case Iustice Crooke cited a farre stronger Case to be adjudged in the case of the Archbishop of Canterbury 43. Eliz. And the Case was this Parker Archbishop of Canterbury granted the office of surveyorship with the ancient fee to one Parker Et ulterius he granted unto him pasturam pro duobus equis in the parke and the whole grant was adjudged voyde and yet here vvas a severall grant by a severall and distinct clause and of another thing severall and distinct in specie Aliud et Aliud And these Cases are farre stronger then the Case in question for here there is not a bare Authority but an interest accoupled vvith an authority And in this Case Iustice Crooke cited Scamblers Case 41. Eliz. to be adjudged that the vvhole grant vvas voyde and not good as to the man of full age and voyde as to the Infant as it hath bene cited by some that argued on the other side And so upon the whole matter they did resolve 1. That the Commissioners by this Commission have a good and legall and sufficient power and authority to grant 2. That all Letters Patents made upon this Commission in which they have pursued their authority are good and effectuall in Lavv. S. where they have either reserved an expresse tenure by Knights service in Capite or no tenure for there the Lavv implyes a tenure in Capite 3. But where the Commissioners reserve a meane tenure the whole patent is voyde 1. Because that the Commissioners have but an Authority 2. Because that this is but a Nude Authority and not accoupled with any Interest 3. Because it is a publique Authority of Record whereof the subjects ought to take notice to passe according at their perill otherwise the patent shall be in deceipt of the King 4.
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