had of Liberty of Speech not to make every thing a Cause of Action and to justifie this on the same side were quoted multitude of Cases too many to deserve a remembrance It was argued on the other side That these words toucht the Person in the most tender point viz. his Loyalty That it carried Scandal in it self not to be zealously affected to the Government which protects the whole that it was equivalent in Common Understanding to the calling him Traytor or Rebel That this was much more than affirming one not to be a good Man that disaffected implyed somewhat positive it 's meaning was that the Party hath an aversion a fixed settled Enmity to the Government that this was spoken of an Officer of great Trust that 't was a Reflection upon him with regard to his Office for Loyalty is as necessary as Justice in such a Post that to slander him in the one ought to be as actionable as to slander him in the other which is allowed it will because of the Reference to the Office in the nature of the words without any Special Damage that to deny these words to be actionable would tend to encourage Breaches of the Peace by provoking Challenges c. for that if Men cannot relieve themselves by Law they will be tempted to do it of themselves in other methods and that these words were a Reflection on the Government which employed Men thus disaffected and abundance of the Common Cases upon this Subject were quoted to shew what words would bear an Action in respect of Officers and Allegiance And then 't was argued strenuously that this was a Special Damage viz. to lose the Prince's Favour which every Man ought to covet and to lose a Place of Honour and Command both which the Jury have Found It was replyed on the behalf of the Plaintiff in the Writ of Error That as to the Reflection on the Government it might perhaps warrant an Information or Indictment but not an Action That as to Challenges there were vast variety of words which are reckoned provocative in the highest degree As the giving the Lie calling a Man a Coward and the like and yet will bear no Action And at last upon Debate the Judgment was Reversed John Duvall and Elizabeth his Wife Appellants Versus William Terrey of London Merchant Respondent THE Appeal was to be relieved against a Decree in Chancery The Case was That the Appellant Elizabeth had entred into a Bond of 140 l. Penalty conditioned for the payment of 72 l. on the Twentieth of April 1676. and by reason of several Promises and Delays of Payment and insisting upon Priviledge and other like Occasions it was not put in Suit till lately and then the Respondents were Arrested And upon a Declaration the Appellants pleaded Payment at the Day And after Issue joyned and notice of Trial upon some discovery of a Defect in the Evidence to prove the Bond Motion was made in the King's Bench to alter the Plea which denied a Bill was preferred in Chancery on suggestion that Elizabeth had never Executed it or that 't was obtained by Fraud and that there was no Consideration for the same and the Respondent preferred a Bill praying a Discovery if such Bond c. Upon Examination of Witnesses and after publication passed the Cause was heard and upon the hearing 't was ordered That the Appellants should not be relieved save against the Penalty of the Bond and that it be referred to one of the Masters to compute the Principal-money and Interest due thereon and to tax for the Respondent his Costs both at Law and in that Court and that what should be found due for the Principal Interest and Costs be paid by the Appellants at such Time and Place as the Master should appoint who computed the Principal and Interest at 154 l. and the Costs at 67 l. and to be paid the Twentieth of October following Upon the hearing of this Appeal there were two Queries made 1. Whether there being some difference in and about the proof of the Bond the Court ought to have made a Decree without directing a Trial at Law upon the validity of the Bond But 't was held That the Bond not being denied in pleading upon the Issue at Law the Chancery had done right and could not well have directed any other Issue than what the Parties themselves had joyned in at Law and tho' 't was pretended that the Attorney haâ— pleaded thus without direction the Court did not much regard that pretence because of the proper Remedy which the Law gives against such an Attorney if the pretence were true and therefore they did not much consider that Another Query was Whether the Court of Equity could justly award more than the Penalty and objected that the Order being to save against the Penalty no more ought to have been decreed But 't was said That notwithstanding that when the same was referred to a Master to tax Principal and Interest the Order bound the Party to pay both tho' it amounted to more than the Penalty and the meaning of the first part was only to relieve against the Penalty in case the Principal and Interest came to less than the Penal Sum especially the same coming to be heard upon cross Bills and as this Case was circumstanced after such delay and such pleading in the Court of King's Bench And as to Costs held no cause for an Appeal in this Case nor in truth was it ever known to be a Cause if the Merits were against the party Appellant And so the Decree was affirmed in the whole William Dolphin and Katharine his Wife Appellants Versus Francis Haynes Respondent APpeal to be relieved against a Decree in Chancery made by the Master of the Rolls Nov. 10. 1696. The Case was thus That one Paris Slaughter of London being Guardian to Katharine the Appellant during her Infancy he placed her with his Kinsman Chambers Slaughter near Worcester and sometimes boarded her in that place for her Education and the Respondent and the said P.S. being Correspondents Paris Slaughter ordered the Respondent to pay the said Chambers what Sums should be called for upon the account of Katharine In pursuance whereof several Sums were paid upon her account and the same were allowed again to the Respondent by P. S. The Appellant Katharine having just attained her Age she came to the Respondent and desired more Money as by the Order of P. S. and accordingly two several Sums were paid her and Receipts taken from her as by the Order of P. S. The Appellant Katharine did afterwards come to an account with P. S. which was fairly stated in Writing and they executed General Releases each to the other But the said two Sums not being entred in the Books of P. S. were not accounted for by the Appellant Katharine and the Respondent not having received any Allowance from P. S. in his Life time nor having as he thought any
the Name of his Kinsman Thomas Arnold the Sum of 40 s. all to be paid out of his Personal Estate and then proceeds in these words Being determined to settle for the future after the death of me and my Wife the Mannor of Furthoe with all the Lands Woods and Appurtetenances to charitable Vses I devise my Mannor of Furthoe with the Appurtenances unto Sir Lionel Jenkins Kt. William Dyer Matthew Johnson and Thomas Bedford and to their Heirs and Assigns for ever upon trust that they or their Assigns after the death of him and his Wife should pay and deliver yearly for ever several particular Sums to Charitable Vses therein mentioned All the Particulars amounting in the whole to 120 l. per Annum and charged nothing further on the said Mannor but the Expences of the Trustees in the Execution of the said Trust The said Arnold soon affter died the Wife is also since dead Sir Lionel Jenkyns and William Dyer also dead In Trinity 1692. the Attorney General prefers a Bill against the Appellant as Heir at Law to settle and establish the said Charities and to enforce the Trustees to act or to transfer their trust Estate To which they answer and the Heir by his Answer claimed as Heir at Law the Surplus of the Charity Estate over and above what would satisfie the yearly Payments expressed in the Will and the Charges of executing the said Trust upon a Reference to a Master to ascertain the Court of the yearly value of the Mannor he reports it worth 240 l. per Annum and worth the same at the time of making the Will And on hearing the Cause the Court declared That all the Profits of the Premisses ought by the purport and intention of the Will to be applied to the Charities therein mentioned and that the Appellant Arnold the Heir at Law is totally excluded from the Surplus with direction how the Surplus should go in augmentation of some of the Charities nevertheless in case the Appellant should Seal and Execute to the Trustees a Release and Conveyance of the Premisses according to the Decree then he to have his Costs out of the Sale of Timber and that the Trustees be indempnified And it was argued on behalf of the Appellant That this Decree was not equitable Some Questions were made about the distribution of the Surplus amongst only some of the Charities and about the value but a Surplus was agreed to be in the Case and 't was chiefly insisted upon that the Surplus ought to go and be to and for the use of the Heir at Law for that the Estate is not increased by any subsequent or accidental Improvement and so not like the Case of Thetford School but here at the time of making the said Will was and now is of a good value beyond the Sums given and was so known to be by the Testator and the particular Charities given by the Testator are particularly and expresly named and limited and do amount only to so much as is less than the value of the Land and thS urplus is not disposed of and consequently ought to be the Heirs For as at the Common Law in a Will what is not given away must descend whether you speak of Land or the interest in it so in Equity whatsoever Trust or part of a Trust is not declared and expressed the same shall be for the benefit of the Representative of the Testator either Heir or Executor as the Case may happen Then these Bequests or Devises being particular and express they do and will controul and expound nay restrain and qualifie the meaning of general precedent words That Expression of his being determined to settle his Mannor to charitable Uses will be qualified by the Particulars afterwards as is Nokes's Case in 4 Rep. and many others in the Books Besides 't is not accompanied with any term of Universality that excludes the Construction contended for and if it had been so largely expressed those general words of his designing to settle the whole may be intended only as a Security that the particular Charities may be certainly answered And by such Construction all the words of the Will may be satisfied and then the Trustees may convey the Premisses to the Heir at Law and take Security for the same saving and reserving all the said Charities devised with all reasonable Charges and Deductions without prejudice to the Will of the Testator or to the said Estate which must nevertheless be liable to answer and make good the same so that there can be no Damage done to any of the Parties or Interests concerned by this Construction nay it is the adding a further Security for their payment Now it is plain he designed the Sums given to the particular Uses and no more for that they are all so particular and express and it is pursuant to the Rules of Law and Equity in all doubtful Cases to adjudge in favour of the Heir at Law and not to extend the general words of a Will to enlarge a Charity beyond the intent expressed especially against a near Relation and Heir as this is viz. his Brother's Son Besides the Testator was bred a Civilian and as such knew how fully to express himself if he had intended the Overplus to go in increase of the Charity Or if he had intended them more then is mentioned he would have declared himself in such manner as should exclude all doubt On the other side it was argued That the Testator's intent plainly appeared by his Will to dispose all his Estate wholly to charitable Uses and that the words of the Will were sufficient to carry the whole Estate to that purpose and that it did not appear by his Will that 't was his intent to give his Heir at Law any thing out of his Real Estate that his determination to settle his Mannor with the Appurtenances was to settle the whole that what is not disposed of in Particulars is to be directed by the Court of Chancery that that Court hath done right in directing it in augmentation of the Charities mentioned because the Testator's intent was most in favour of those which are so mentioned That if the Query were askt What shall be done with the Surplus if any The Answer is natural viz. I am determined to settle the Mannor that is the whole on Charitable Uses That the Testator by his Will expressed some Care for his Sister and for John Boncher his Nephew and other his near Relations but neither by any Expression or Implication pointeth at any provision designed for his Heir at Law but for the Excluding him of all Pretences hath bequeathed him 40 s. and no more that the other is to contradict his plain Intent 't is to make a new Will for him contrary to the determination which he saith he had made And accordingly the Decree was affirmed Sir Richard Dutton Plaintiff Versus Richard Howell Richard Grey and Robert Chaplain Executors of Sir John
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
reason to continue the exemption afterwards as there could be to allow it during the Interval when they do not draw the Plough And for these and other Reasons urged 't was prayed That the Decree for Tythe quoad such Cattle as ever had been used with the Plough should be reversed On the other side it was urged That the said Decree is agreeable to the Law and supported by many Resolutions in the Court of Exchequer that there was a Reason for Tythe in this Case because these Cattle tho' formerly used to the Plough they ceased now to belong to it and consequently Tythes became due that there 's a Difference in the nature of the thing for when they feed in order to labour the Parson hath a Tenth of the Benefit produced thereby but when they are fatted only for Sale 't is otherwise That this was a settled and allowed Difference in the Exchequer That while the Oxen are working no Tithe shall be paid for their feeding because there is Tithes of other things arising by the Labour of such Cattle but when they do no Work and are turned off to be fatted and are graz'd there Tithes shall be paid for the Herbage which they eat they being no way beneficial to the Parson in any other Tithes And many Cases in scacc ' were cited to warrant this Distinction and 't was said That none could be alledged to the contrary wherefore 't was prayed That the Decree might be affirmed and it was affirmed Magdalen Foubert Widow Grandmother and Administratrix of Katherine Frances Lorin de Granmare Appellant Versus Charles de Cresseron Administrator with the Will annexed of Katherine Granmare Respondent APpeal from a Decree in Chancery the Case was thus Peter Lorin Son of the Appellant and Katherine de Mandoville came to an Agreement to marry and that the longest Liver should take all whether Issue or not A publick Notary took and entred that Agreement in his Book and both Peter and Katherine subscribed the same so entred and then being written fair they signed it again and the now Appellant and other Relations subscribed it They Intermarried Peter was kill'd in Flanders and left Katherine with Child afterwards she being near her time thought fit to make her Will which she wrote with her own hand in French in these Words Quoy que je sois presentement en perfaite santé de corps et d'esprit cependant ne sçachant de quelle maniére il plaira à Dieu de disposer de moy dans ma couche Je trove à propos de marquer jcy més dernieres volontés En cas qu'il luy plaise de me retirer de ce monde si c'est sa volonté de donner dés jours à mon enfant Je luy laisse generalement tout ce qui peut m'appartenir supplie trés humblement Madame Foubert ma soeur Lorin et Mr ' le Bas d'en prendre soin J'espere que Mr. Foubert le Major à la consideration de feu son paure Pere luy rendront lés services dont il aura besoin que Dieu ne l'abandonnera point Je l'en supplie de toute mon ame comme aussi de benir toute la famille fait a Londres ce 16th de Novembre 1693. par moy Catherine de Granmare After which the said Katherine annexed a Codicil to her Will in these words viz. En cas qu'il plaise à Dieu de retirer mon Enfant aussy bien que moy Je donne à Madamoiselle le Bas ma bague de Diamans mon Ecritoire garnie d'argent une boëte de rubants neufs Je donne a Madamoselle Peireaus mon habit brun doublé couleur de paille et mon habit Jaune une demie douzanie de més Chemises Je donne au fils à Jacob dix livres sterlings pour le mettre en Métier à son pere ce qui se trovera dés habits de mon Mary Je donne a Catharine Williams ma filleule dix livres sterlings pour la mettre en mètier Tout le reste de ce qui m'appartient tant en Meubles que Linge Vaissell d'argent Argent Monnoye qui m'est dù Je le laisse à ma soeur Lorin a mess ' de Cresseron pour etre egallement partagé entre eux J'excepte seulement le portrait de mon Cher Mary ma bague Turquoise que Je donne à ma soeur Lorin la prie de garder l'une l'autre tant qu'elle vivra Je donne aussy a Monsieur Cresseron ma montre d'Or que le souhaite qu'il garde et porte pour l'amour de moy fait à Londres ce 16th Novembre par moy Catherine Granmare Then she was deliver'd of a Daughter and a few Hours after died and the Daughter did survive her near two Years and then died And after her Mother's Death there being no Executor named Administration of the Estate of the Testatrix was committed during the Minority of the Child with the Will annexed but the Appellant possest her self of the Estate being about 600 l. Value Then after the Child's Death the Appellant as next of Kin took Administration to the Child and also to Mrs. Granmare The Respondent exhibited his Bill claiming a Moiety of the Residuum by force of the Codicil the Appellant by Answer insisted upon the Invalidity of the Agreement between Peter and Katherine but that being waived the Question arose upon the words of the Will and particularly these donner des jours and 't was insisted That nothing was designed to the Respondent but only in case the Child were still-born or should die in her lying in whereupon the Court ordered the Cause to be continued in the Paper and that both sides should take time to procure the Opinion of French Men born and acquainted with the Laws of France and the Cause coming on again to be heard before the Lord Chancellour and upon reading of several Opinions of French Gentlemen bred to the Laws of that Country the Court declared That the Respondent was well intituled to his Moiety of the Residue after the particular Legacies Debts Funerals and other Allowances deducted and decreed the same accordingly It was argued on the behalf of the Appellant That this Decree was erroneous that the proper Signification of those words was no more than to give Life that it was so translated at Doctors Commons That that Translation does agree with the Opinion of several of the most learned Divines amongst the French Refugees here That 't is so interpreted in the Famous Dictionary of the French Academy dedicated to that King where the Words are as follows viz. lés jours au pluriel signifie la vie That Days in the plural signifie Life without any Determination of time That there are few Frenchmen of any Understanding but will acknowledge That by lés jours d'une personne the
Ancient Legislators The wise Solon who founded that Popular Government of Athens was not so fond of his own Frame as to recommend it to other places tho' he believed that it suited best with the Infirmities of the People And even in Rome before she acquired any great Reputation there was a Senate under Kings it had one nor doth it appear that a Senate was adjudged useless when it became and was called a Common-wealth And as soon as the Senate lost its Authority a Tyranny was set up This may be called their Aristocratical Part and whosoever reads the Lives of those Roman Worthies Cato Vticensis c. that nobly attempted to defend the Liberties of their Country will find That it was for the upholding the Authority of the Senate that they contested fought and died Machiavel indeed in his Discourses upon the Decades of Titus Livius has strained almost every thing in favour of Democracy and with extream Art and Labour hath illustrated a Popular State and made Rome the Example of it and yet even in those Discourses he sometimes shews the Necessity of an Aristocratical Mixture to make a just and regular and happy and lasting Government Nay Algernoon Sydney himself that famous Assertor of Liberty doth almost every where prefer the Aristocracy and he was confirmed in that Sentiment by the Views he had taken of former and present Governments and by the Knowledge he had of what formerly was our own Constitution till Henry the Sevenths Reign For that Prince as the Lord Bacon rightly observes was rather cunning in relation to his own Times then a Person that had a full prospect of what would afterwards be the Consequence of his Measures or that had a due regard to Posterity No Man can wish that the House of Lords should be made Cyphers if they could once again be made the Natural Balance between the King and People There drop even from Mr. Sidney's Pen Expressions enough to prove that a just Composition of the Three Powers Monarchical Aristocratical and Democratical would have been reckoned even by him an equal Government Such a Mixture even our Government was and tho' some perhaps out of meer Ignorance have disputed the Democratical and others the Monarchical part of our Constitution yet no Body ever to this day could pretend that our Barons those Majores Regni had not originally a Share both in the Legislature and Administration within this Kingdom The Fact is not necessary to be proved because 't is not denied and the reasonableness of it is apparent There 's no occasion to Complement them for what their Ancestors did in procuring of Magna Charta which the judicious and indefatigable Antiquary Sir Henry Spelman saith was only an Ascertainment or Recompilement of our Old Laws It would be of Publick Service to have a just State of the true Powers of the House of Lords in their Judicial and Legislative Capacities according to the true English Constitution that we might be familiarized to the almost antiquated Notions of the Aristocratical part of our Government and so may neither be over-run with the Schemes of Absolute Monarchy-Men who would have all Judicial Power even the Dernier Resort lodged in the Crown or in Delegates appointed by it and not in the Parliament nor be crumbled into the Disorders which must follow the Notions of those who aim at a pure Democracy But to write an Exact Discourse upon this Head would require more Lines then can become a Preface The Reader therefore must not here expect an Account of the Growth and Decays of their Power and the true Reasons of Each and the Regulations or Restrictions that will be needful if they ever happen in any degree to be restored to the Preheminence and Authorities which they formerly enjoyed among us It is enough for the present to say That all the Measures taken and used in the Exercise of their Judicature are observed without Doors especially by the Persons concerned their Relations and Friends That the Errors in such Exercise if any are only to be corrected by themselves and no ways proper or fit to be suggested by any private Person much less to be published in Print However it may be hoped that these Reports may probably convince the young Nobles of this Realm and all who are imployed in and about their Education that some general Knowledge of the Laws of England and some Acquaintance with History and other Learning cannot be unworthy the Ambition of every Noble-man's Son who has any hopes to sit as Judge in that August Assembly where the nicest of Questions in Cases of the greatest Consequence and between the greatest of Subjects and many times between the King and his People do frequently come under Consideration And these Papers may likewise remember them what just Liberty of Arguing and Debating hath been allowed to Counsel and with what Candour and Patience they have been heard even in the most tender Points As also shew them what Resolutions were taken upon those Debates and Arguments that the Law may be consistent with it self and remain as it is a certain Rule of doing Right As to the present Performance the Reader is desired to pardon all Mistakes in Grammar and in the Figures of Folio's and Pages and other common Errata of the Press which by reason of multiplicity of other Business could not easily be attended to and observed Omari Res ipsa negat THere will shortly be Printed The Historical Library of Diodorus the Sicilian the whole Fifteen Books Translated from the Greek with all the Fragments And will be Sold by Awnsham and John Churchill in Pater-noster-row Dominus Rex Viscount Purbeck UPON a Petition the Question was in the House of Lords Whether the Dignity of a Viscount could be surrendred to the King by a Fine And it was Argued at the Bar by three Counsel for the Petitioner and by the Attorney General for the King It was urged on behalf of the Petitioner That a Dignity cannot be surrendred to the Crown and that for these Reasons 1. It is a Personal Dignity annexed to the Blood and so inseparable and immoveable See Ratcliff's Case 3 Rep. Rutland's Case 6 Rep. 53. that it cannot be either transferred to any other Person or surrendred to the Crown it can neither move forward nor backward but only downward to Posterity and nothing but a Deficiency or a Corruption of the Blood can hinder the Descent as if the Ancestor be Attainted of Treason or Felony c. For in that Case the Heir conveying no Inheritable Blood cannot make any Claim to that which is annexed to the Inheritable Blood and besides there is a tacite Condition of Forfeiture annexed to those Dignities by the Breach of which Condition the Dignity is determined but by the Act of the Party there can be no Determination of it unless there be an Attainder which corrupts the Blood And he took a difference between Ancient Honours and Dignities which were
Grant of the Town of Haverfordue the King afterwards inclining to dignifie his Son with that Title procured him to Surrender by Deed and bestowed on him another Title and gave a greater Estate and an ancienter Honour Here was an Estate Tail surrendred by Deed it might work a kind of Discontinuance but no legal effectual Surrender And for the Case of Ch. Brandon who in the time of H. 8. was created Viscount Lisle afterwards he surrendred that and got a Dukedom now no Man ever questioned the efficacy of this Surrender for he himself had no reason to question it for 't was to his advantage and none other could question it for he died without Issue and his Honour with him And so in the Case of my Lord Stafford he surrendred and got a new Honour So that it appeared all these Cases were either Honours referring to Offices and Lands or else such as were for the re-granting of greater Dignities which they had no reason to question and so they passed sub silentio But here is not one Precedent that they did ever Surrender to the Prejudice of their Blood or move themselves quite out of the House by Fine or Deed. And further If Precedents be good for the Surrender of an Honour by Fine why not also for Transferring of it to another for of this we have some Precedents Daincourt's Case 4 Inst 126. One Branch of the Family sat in the House by virtue of a Grant from the other Branch from the Reign of Ed. 2. to Hen. 6. and the Case of the Earldom of Chester first granted 17 H. 3. n. 25. and transferred 39 H. 3. And there was an Attempt made in the Lord Fitzwater's Case to make a Baron by transferring of the Dignity but you will find all these Precedents disallowed And 't was said that no Man ever met with any Case where any Nobleman by Fine levied or other Conveyance became a Yeoman or Ignoble 'T was argued by another much to the same effect That Baronage and Peerage is to be determined by the Records of the Lords House and if any other way be given as there must be if a Fine be allow'd to barr then the old true way is gone This was not a Fine Conditional at the Common Law and therefore not within the Statute De donis Conditionalibus and an Honour being a Personal Dignity is not to be barred Jones Rep. 123. by Fine being inherent in the Blood c. The Duke of Bedford was by Authority of Parliament degraded and that was for Poverty and by Act of Parliament and not by Surrender Therefore Judgment was prayed for the Petitioner The Attorney General argued pro Domino Rege upon these Reasons 1. There is but a defective Proof of the Creation of this Honour no Letters Patents no Records of the Inrollment produced nor any Entry in any Office of such a Patent as is usual all that is pretended is That he sate in some Parliaments afterwards as Viscount Purbeck but that will not be accepted for proof for no Man can be created Viscount but by Letters Patents a Writ of Summons will be an Evidence of a Creation but will not amount to a Creation there is a Ceremony equal almost to that of an Earl there must be a Coronet all which must be performed or he must have Letters Patents to dispense with it which being Matter of Record must be produced 18 Hen. 6. Beaumont was the first created Viscount but there was never any since nor then without Letters Patents for he is to take place of some and therefore he must have something to show for his Precedency but a Baron is the lowest Dignity and therefore may be created by Writ Neither can it be presumed that they were lost for except it be produced it makes no Title except they be produced it shall not be intended there was any neither can it be help'd by any concurrent Evidence for if there were Page's Case 5 Rep. 53. a true Creation there would be some Evidence in some of the Offices but there is not in any of them the least vestigia of proof to ground a presumption 2. Dignities as well as other Inheritances must be limited according to the Rules of Law the Dukedom of Cornwal in 8 Rep. the 1. the Prince's Case was limited according to the strictest Rules of Law And whereas it hath been said that Dignities differ from other Inheritances that is where there is some particular reason for it as in the case of Transmission or Alienation which depends not upon the Manner of Creation as shall be shewn afterwards And for the Case of 1 Inst 27. which was that an Inheritance of a Dignity may be created by other words than other Inheritances are as an Estate Tail without the words of this body there 's not any such thing in the Book 'T is said indeed that if the King for reward of Services done do grant Armories to a Man and his Heirs Males 't is an entail of the Coat without saying of his body but I think that will not be taken for the Case of a Dignity the Statute De donis Conditionalibus extends to Honours the word terram would be thought an improper word to comprehend all things tailable yet said to extend to all and to Honours too 1 Inst 20. and if an Honour can't be entailed then no Remainder can be limited and yet there be many Lords that sit in this House by Remainder by good Title The Statute of 26 Hen. 8.17 saith That if a Man be Attainted of Treason he shall forfeit his Lands Tenements and Hereditaments Now 't is adjudged that the word Hereditaments comprehends Honours which show that they are subject to the same Rules of Law that govern other kind of Inheritances and are comprehended with other Particulars without general words This being premised it 's a known Maxim in all Laws Nihil rationi magis consentaneum quam rem eodem modo dissolvi quo constituitur which Rule is so general that the highest Authority i. e. the Parliament is not exempt from it for 't is not possible to establish any thing so firm by Statute which cannot by another Statute be annulled Now in the Creation of a Peer there are three things the Person that creates the Person that is created the Matter of Record whereby he is created Now if the King who is the Person that creates and his Successors agree with the Person that is created Peer and his Successors the one to undo their parts and the other to give away their parts and there is a Matter of Record of as high a nature concurring to effect this Dissiolution c. in some Cases 't is in the power of an Ancestor by his own act to destroy a Patent as if a Scire Facias in Chancery be brought against his Patent and Matter is suggested whereby to avoid it this shall Bro. tit Patent 37 97. vacate whatsoever was created by the Patent
Witham deceased WRit of Error on a Judgment given in B. R. for Sir John Witham and Sir Richard Dutton and the Award of Execution thereof upon Scire Fac ' brought by the Defendants as Executors of Sir John Witham and affirmed in the Exchequer Chamber in Trespass and False Imprisonment The Case on the Record was thus The Plaintiff William did declare versus Dutton for that he with Sir Robert Davis Baronet Sir Timothy Thornhill Henry Walrond Thomas Walrond and Samuel Rayner did 14 Octob. 36 Car. 2. at L. in Par ' Ward ' c. assault beat and wound the Plaintiff and imprisoned him and his Goods then found did take and seize and the Plaintiff in Prison and the Goods and Chattels from the Plaintiff did detain and keep for three Months next following by which the Plaintiff lost the Profit he might have made of his Goods and was put to Charges c. Contra pac ' ad damp ' 13000 l. The Defendant pleads Not Guilty as to the Venir ' vi armis and all the Assault Imprisonment and Deteiner in Prison before the Sixth of November and after the Twentieth of December in the same Year and as to the beating and wounding and taking seizing and detaining his Goods and thereupon Issue is joyned and as to the assault taking and imprisoning the Plaintiff the Sixth of November and detaining him from thence until in and upon the Twentieth of December The Defendant doth justifie for that long before viz. the 28th of Octob. 32 Car. 2. by his Letters Patents shewn to the Court did constitute and appoint the Defendant his Captain General and Chief Governour in and upon the Islands of Barbadoes and c. and the rest of the Islands lying c. and thereby commanded him to do and execute all things that belonged to that Government and the Trust in him reposed according to the several powers and directions granted to the Defendant by the Letters Patents and Instructions with them given or by such other powers or instructions as at any time should be granted or appointed the Defendant under the King's Sign Manual and according to the reasonable Laws as then were or after should be made by the Defendant with advice and consent of the Councel and Assembly of the respective Islands appoints twelve Men by name viz. Sir P. L. H. D. H. W. S. N. T. W. J. Witham the Plaintiff J. P. J. S. R. H. E. S. T. W. and H. B. to be of the King's Counsel of the Island during the pleasure of the King to be assistant to the Defendant with their Counsel in the management of the Things and Concerns of the Government of the said Island in relation to the King's Service and good of his Subjects there and gives power to the Defendant after he himself had taken the Oath of Office to administer to every Member of the Councel and Deputy Governour the Oaths of Allegiance and Supremacy and the Oath of Office with further power to the Governour by advice and consent of Counsel to summon and hold a General Assembly of the Freeholders and Planters there and to make Laws Statutes and Ordinances for the good Government of the Island and to be as near and consonant as convenlently may to the Laws and Statutes of England which Laws were to be transmitted to be allowed by the King here with power also by advice and consent of Counsel to erect and establish such and so many Courts of Judicature as he shall think fit for hearing and determining all Causes as well Criminal as Civil according to Law and Equity and to appoint Judges Justices of Peace Sheriffs and other necessary Officers for administring of Justice and putting the Laws in execution provided Copies of such Establishments be transmitted to the King to be allowed and with further power to the Governour to constitute and appoint Deputy Governours in the respective Islands and Plantations which then were or should be under his Command to all and every which respective Governours the King by these Letters Patents gave power and authority to do and execute what should be commanded them by the Governour according to the power granted to him by this Commission And the Governor's Authority to continue during the good will and pleasure of the King The Defendant further pleads That after the making of the Letters Patents and before the time of the Assault and Imprisonment viz. 1 Mart. 33 Car. 2. he arrived at Barbadoes and by virtue of the Letters Patents aforementioned he took upon him and exercised the Government of that and the other Islands and continued to do so till the first of May 35 Car. 2. when he had license to return to England That he before his departure by virtue of the said Letters Patents by a certain Commission under his Hand and Seal did constitute the Plaintiff in his absence to be his Deputy Governour in the said Islands of Barbadoes to do and execute the Powers and Authorities granted to the Defendant by the said Letters Patents That the first of August following the Defendant arrived at London in England that the fourth of May 35 Car. 2. after the Defendants departure the Plaintiff took upon himself the Administration of the Government of the Island of Barbadoes that the Plaintiff not regarding the Trust reposed in him by the Defendant nor the Honour of that Supreme Place and Office did unlawfully and arbitrarily execute that Government and Office to the Oppression of the King's Subjects viz. apud Lond ' praed ' in Par ' Ward ' praed ' That after the Return of the Defendant to the Barbadoes viz. 6 Nov. 35 Car. 2. at a Councel holden for the Island of Barbadoes at St. Michael's Town before the Defendant H. W. J. P. E. S. T. W. F. B. which five are of the twelve named Councel in the Letters Patents and Sir Timothy Thornhill and Robert Dawes Counsel for the Island aforesaid the Plaintiff then and there was charged that he in the absence of the Defendant misbehaved himself in the Administration of the Government of the said Island Non tantum in not taking the usual Oath of Office and not observing the Act of Navigation And by his illegal assuming the Title of Lieutenant Governour and altering and changing Orders and Decrees made in Chancery of the said Island according to his own will and pleasure at his own Chamber and altering the Sense and Substance of them from what was ordered in Court by and with the consent of the Councel upon which it was then and there ordered in Councel by the Defendant and Councel that the Plaintiff Sir John Witham should be committed to c. until he should be discharged by due Course of Law by virtue of which Order the Plaintiff the said sixth of Nov. was taken and detained until the 20th of Dec. upon which day he was brought to the Court of the General Sessions of Oyer and Terminer and then by
the Common Law but much more so upon a Statute Besides the latter Statute which gives a Privy Seal doth not Repeal or alter the Law then in being 't is an Affirmative Law and that seldom or never works any change or alteration in what was before any otherwise then by Addition or Confirmation and in truth this is only a further remedy and is far from declaring a Prohibition not to lie the meaning might be to give a Privy Seal immediately even in vacation time the preamble complains so much of the Grievances that it cannot be supposed to Design any thing in favour of them or to prevent the restraint Suppose between the 8 and the 15 Rich. II. an excess of Jurisdiction had been usurped as in this Case will any Man say that a Prohibition would not then have lain and if it would can any Man say that the Statute pleaded doth take it away or Prohibit such Writ of Prohibition And the 11 Hen. IV. 24. ordains that all the Statutes concerning the Court of Constable and Marshal shall be duly observed and if so the 8 Rich. II. as well as the 15 Rich. II. are within that ordinance and if so a Prohibition lies as well as a Privy Seal and both are little enough to keep that Court within its due bounds and limits 2. It was argued That the proceeding upon these Articles was an intermedling with a subject matter properly determinable at common-Common-Law here 's no contract or deed of Arms no Mis-behaviour in War nothing of that nature which their own Statute says belongs to them Rushworth's II. Vol. 1054. he frequented the Court for four years together he observed no Cases there but for Words and one or two as Delaware's Case about abusing an Honourable Family by assuming to be a branch thereof here 's no such thing but express Articles for exercising of a lawful Trade 't is not causa armorum it doth neither concern Warlike matters nor Honour a Funeral Ceremony can never be within their Power this is a plain Accusation for a wrong to one of their Officers the Articles charge that Sir Henry S. George by his Office within his Province hath the ordering of these matters and the party hath medled therein without his License he says 't is lawful and the exercise of a lawful employment they say 't is otherwise because it belongs to another Man's Office then 't was admitted by the Council for the present to be so that Sir Henry was an Officer by Letters Patents under the Great Seal of England which by the way makes the Office and rights of it to be of Common-Law Conusance and the Patent is set forth at large in Prinne on 4 Inst 64 65. and that the King at Arms hath such a right yet if any Man intermeddles or incroaches upon that Office 't is not a breach of the rules of Honour and not relating to Arms but a plain injury at Common-Law and an Action lies for it as it doth for the disturbance of any other Office or Franchise In 4 Inst 126. 't is said that they do upon request Marshal Funerals but supposing they alone ought to do it then an Action lies This is merely a question whether the Letters Patents do carry such a sole priviledge suppose nul tiel record be Pleaded to them when Pleaded or Inrolled and without producing them suppose non concessit Pleaded to them when produced how shall these issues be tried Suppose they awarded a satisfaction to be made to Sir H. S. by the gift of a Summ of Money and he should afterwards bring an Action at Law for the same Cause will the proceeding in the Court of the Earl Marshal be a barr the Fact alledged in these Articles comes within none of those particulars supposed to be belonging to this Court in 1 Inst 391. It matters not whether these were publick Funerals as was questioned in Parker's Case Sid. 352. and in 2 Keble 316.322 but the Query here is if this be a point of Honour or whether it be not about the right of an Office and if it be the latter they have no Power to determine it The Heralds are Officers attendant upon that Court but it doth not follow that that Court can judge of the nature or extent validity or operation of their Letters Patents no more than the Court Christian can try the right or Freehold of a Chancellors or Registers Office The Earl Marshal cannot License the doing this in prejudice of the Heralds or acquit the party if does it for he still stands liable at Law the Herald hath a Freehold in it and may bring his Action notwithstanding Then 3. 'T was argued that admitting that no Prohibition did lie to the Court of Honour or that there was no cause for such Prohibition yet it ought to be granted to this pretended Court which is not within their Statute The true Court is before Constable and Marshal it is a Court by Prescription and cannot be altered but by Act of Parliament All our Books which describe the Court mention it to be before both 4 Inst 125. Crompt Jurisdiction 82. 1 Inst 74. Stamford 65. The Constable is the Chief and so are the Old Books and 37 Hen. 6.20 expresly before the Constable and Marshal The Statutes which mention the Court do all take notice of it as held before both the 8 Rich. 2. and that which they Plead do describe it so and the 1 Hen. 4. Cap. 14. the 13 Hen. 4.4.5 all Attainders are Pleaded to be before both Cambden who was an Herald in his Commentary de Etymologio antiquitate officio Comitis Mareschalli Angliae fol. 87. 't is published at the end of his Latin Epistles which are in 4to Printed for Chiswell 1691. he endeavours to advance the Office of Earl Marshal and searches for the Etymology and after all makes him but an Harbinger and tells us when the Title Mareschallus Angliae was first used and how it hath been enjoyed and by whom and of what Families and afterwards 91. lessens his Character much and derives the Office of Marshal of England from that of Marshal of the Houshold which he describes to disadvantage the same is likewise in Fleta lib. 2. cap. 5. But this is observable which Cambden says that the greatest increase of the Authority of this Office hath been since there were no Constables for the Kings since that time have referred many things to them which in former times were proper for the Constable neither had the Marshal any precedency in respect of his place until King Hen. 8. Anno 31. by Parliament Assigned him place next to the Lord Constable and before the Lord Admiral all which shews that the Earl Marshal never had that Authority time out of mind to hold this Court before himself alone as is pretended during the vacancy of the Office of Constable In November 1640. 't was Voted by the House of Commons upon a report from a Committee of some
of the Appellant That in this Deed there was no Appointment to the Respondent till after the death of the Appellant and his Issue that all the pretence for Webb's Claim was That the Trust to the Appellant was not to take effect till the Duke's death altho' the said Duke had no Interest in the Estate as hath been adjudged by the Supreme Judicature of the Realm that by the whole purport and design of the Settlement and Will and the positive words of it Sir Henry Wood intended the said Trusts in Succession and Order as they are mentioned that the Design of the whole was not to give any thing to the Respondent till after all the mediate Limitations were spent It was argued on the other side with the Decree That this Right of the Respondent to a Moiety as long as the Duke lives is a necessary Consequence of the Lord's Judgment in the other Case that the same is founded upon fixed and established Rules of Law as that an Heir is not to be disinherited by Construction or Implication but by plain and express words nor will the Law give away an Estate or make it to Commence sooner than the plain and express words will warrant that wherever an Estate is limited in Remainder that depends upon a Contingency or a Condition precedent there till the Condition be performed or Contingency happens that Estate cannot Commence that this was the foundation of the Argument for the Appeliant in the other Case And the same Rules hold here for here is a precedent Condition for after the Marriage once had the Duke must die and die without Issue or that Issue die without Issue before the Appellant can take The Owner says that the Appellant is not to have it till then that there is not one Reason which can be urged against the Duke but may with equal force be urged against the Appellant in this Case that the Respondent claims not by the Settlement but as a Coheir to have that which is not disposed of and what is not so disposed must descend or result for the benefit of the Heirs Wherefore it was prayed that the Decree should be affirmed and it was affirmed The Bishop of Exeter al' versus Sampson Hele. Writ of Error upon a Judgment in a Quare Impedit in C. B. affirmed in B. R. The Case upon the Record was thus HE le brings his Quare Impedit as seized of the Mannor of Southpole in Com' Devon ' to which the Advowson of the Church of Southpole belongs in his Demesne as of Fee and so being seized he presented thereunto when vacant John Vlt. his Clerk who at his Presentation was admitted and instituted that it became void by his death and belonged to him to present and that the said Bishop and Gauâ—yn Hayman hinder him ad dampn ' c. The Defendants came and defend vim injur ' quando c. and the Bishop says Actio ' non quia dieit that the Church is within his Diocess and that he claims nothing in it but as Ordinary that 't is a Benefice with Cure of Souls that 15 Aprilis Anno Willielmi Mariae secundo it became void by the said Incumbent's death he being Ordinary after which Vacancy and within Six Months prox ' post mortem praed ' J. V. viz. 19 May eodem Anno the Plaintiff presented to him one Francis Hodder as his Clerk which said Francis was a Person in Literatura minus sufficiens sen capax ad habend ' dictam Ecclesiam Super quo praed ' Episc ' as Ordinary of the Church aforesaid did according to the Ecclesiastical Laws Examine him of his Ability and Fitness in that behalf ut de jure debuit and upon such Examination he found him to be a Person in Literatura insufficient ' ac ea ratione fore personam inhabil ' minime idoneam ad habend ' the said Benefice with Cure of Souls per quod the said Bishop as Ordinary did refuse him of which after the said Refusal the Bishop within the six Months did give the Plaintiff notice viz. 20th June Anno supradict ' and that he might present another Person to the said Church that the Plaintiff did not present any other within the six Months per quod it belonged to the Bishop as Ordinary of the place to Collate a fit and proper Person and thereupon he did Collate Gauwin Hayman who was instituted and inducted hoc parat ' est verificare unde pet ' Jud ' c. The Incumbent pleads the same Plea Mutatis mutandis The Plaintiff replies That Hodder at the time of the Presentation and long before was Vicar of the Parochial Church of Vxborough in Com' praed ' and to that Vicaridge lawfully admitted instituted and inducted homo Literatus infra Sacros ordines constitut ' in verbo Dom ' Doct ' instruct ' post Doctrine Literat ' examen ordines Sacerdotales per ordination ' Episcopalem adeptus fuit intuitu Spiritualis Doni favente Deo in ea parte contingent ' ad predicand ' verbum Dei in per Diocesim Exon by Anthony late Lord Bishop of Exon Licentiat ' curam habens exercens Animar ' Divino Servitio per multos Annos assidue incumbent Divinum Servitium Celebravit adhuc Celebrat ad Divina Servitia Celebrand ' Scil ' in legendo Orando Praedicando Sacra Ministeria ministrand ' Satis Sufficienter Literatus vixit apud Southpole praed ' hor ' par ' est ver ' unde petit Jud ' c. The Defendants rejoyn That protestando that Hodder was never Vicar of Vxborough nor in Orders nor Licensed to Preach pro placito they say that Hodder when Presented was a Man illiterate and that they are ready to aver ubi quando prout curia c. The Plaintiff surjoyns That Hodder was Vicar in Orders and Licensed prout hoe petit quod inquiratur per patriam and the Defendant's Demur Jud ' pro quer ' affirme en B. R. It was argued on behalf of the Plaintiffs in the Writ of Error that this Judgment and the affirmance of it were Erroneous For That the Ordinary had in this Case a Power of examining this Presentee notwithstanding their pretence of Orders and License and the former Examination by Dr. Sparrow late Bishop and consequently their Replication and Surrejoynder are naught for they rely upon that and nothing else 'T was insisted on below That a Parson once Ordained is certainly presumed to have sufficient Learning for any Cure of Souls nay that such Examination upon his Ordination shall conclude any succeeding or other Ordinary from Examining such a Person when Presented to a Benefice but this is contrary both to Reason and Law and so agreed by most of the Judges who delivered their Opinions for the Plaintiff in the Action below 'T is against all Reason and Sense That because one
Ordinary thought him able to take Orders and Preach in his Diocess therefore another must deem him able and sufficiently Learned tho' he knows the contrary to accept a Benefice in his Diocess 't is Absurd that upon a Presentation he is to be Examined but not refused tho' found inhabilis and this because he was in Orders and he could not be Presented unless in Orders and yet tho' in Orders if he be Presented he must be Examined but to what purpose passeth all understanding if his Priesthood or Orders presumes him to be qualified 'T is likewise to suppose Learning and Ability to be an inseparable quality That an ordinary Scholar can never become less so By the Old Law the Bishop had two Months time to Examine 2 Roll's Abr. 354. by Hob. 317. He hath a convenient time and by Can. 1 Jac. 1 cap. 95. the two Months is reduced to 28 Days And the Ordinary both in Conscience and by the Obligations which his very Order doth import is obliged to Judge for himself as well as to Examine the contrary is repugnant to his Office of a Judge to be forced or compelled to institute every Presentee fit or unfit Besides the Ordinary pro Tempore hath the particular care of all the Diocess and during a vacancy is to take care of supplying every particular Cure within his District then when he admits and institutes the very form of Words is Accipe curam meam tuam which renders it more Absurd that nolens volens he must transfer his Cure to a Man not able in his Judgment to execute it 'T is against the Rule of Law for that the Words of it are express articuli Cleri cap. 13. and this Cooke declares to be Affirmative of the Common-Law Item petitur quod personae Ecclesiast ' quas Dominus Rex ad beneficia presentet Ecclesiastica si Episcopus eas non Admittat ut puta propter defectum Scientiae vel aliam causam rationabilem non Subeant examinationem Laicar ' personar ' in casibus antedictis prout his temporibus attentetur de facto contra Canonitas sanctiones sed adeant Judicem Ecclesiasticum ad quem de jure pertinet pro Remedio prout justum fuerit consequendo respons ' de Idonietate persone presentate ad beneficium Ecclesiasticum pertinet Examinatio ad Judicem Ecclesiasticum ita est hactenus usitatum fiat in futurum Here is Idoneitas persone praesentate and the words of the Writ are quod permittat praesentare Idoneam personam And if the Presentee were not a fit person no such Writ can be maintained Then my Lord Coke in his Comment upon that Statute in 2 Inst 631 632. saith that there may be diverse Exceptions to Persons presented as Bastardy Villenage Outlawry Excommunication Laity Under age or Criminal and Lewd in his Conversation or inability to discharge his Pastoral duty as if he be Unlearned and the Examination of the Ability and Sufficiency of the Person presented belongs to the Bishop who is the Ecclesiastical Judge and not a Minister and may and ought to refuse the Person presented if he be not Idonea persona And if the cause of refusal be default of Learning Heresie or the like belonging to the knowledge of the Ecclesiastical Law then he must give notice to the Patron so that default of Learning is by him who was no great friend to the Jurisdiction of Court Christian agreed to be Subject to the Ecclesiastical inquiry and then in Pleading he must show the cause of refusal and the Party may deny the same and then the Court shall write to the Metropolitan or to the Guardian of the Spiritualities sede vacante to certifie if the cause be thus and his Certificate is conclusive if the Presentee be Dead it shall be tried by a Jury 15 Hen. 7.7 the Bishop is declared to be a Judge and not a Minister in this case of Examining a Man's Ability he is a Judge in this case as he is in case of a Resignation for an Ordinary may refuse it and without his acceptance 't is no Resignation and must be so Pleaded Noy 147. Bro. tit Bar. 81. 2. Cro. 197. and so agreed even in the Case of Leach and Thompson in Reg. 53. is a Consultation upon this very surmise that inability ad Retinend ' beneficium propter Crimina belongs to Court Christian and that the Ordinary is Judge thereof which is much stronger than our case because there was a Freehold vested by induction But this hath been agreed by that Court from whose Judgment the present Appeal is that a refusal may be upon insufficiency appearing upon an Examination upon a new Presentation and constant practise proves it The greater if any doubt is upon the Plea if good it says that he was Examined and upon Examination was found incapable The Exception taken to it is that it doth not set forth the particular parts of Learning in which he is deficient that the Temporal Court may Judge if it were a sufficient cause of refusal which is to change and turn it ad aliud examen that Learning is requisite for a Presentee to be Benefic'd they would not have the Ordinary to determine what Qualifications a person ought to have in order to take a Benefice but the Judges in Westminster-Hall They can have no colour for this pretence but that the Ordinary may have refused when competently Learned in their Opinions and they cannot say that the Law hath settled any Rules or measures of Learning requisite Some say Latin is not requisite since the Liturgy is now in English and therefore they would Judge of it others say the less Learning the better Preacher if can Read and Pray and Preach and be indued with Spiritual Gifts and so is their Replication others say that the Ordinary's Judgment must be submitted to the Judge's Opinion of the proportion of Knowledge necessary then they have a Popular pretence that this will give the Bishops too great a Power of refusal and so restrain Patrons from their privilege of Presenting and thereby make themselves Collators But there 's no danger of that because there must be notice and a convenient time for another Presentation and the danger of this restraint is as much the other way for then the Temporal Courts are to do it and it s much at one to the Patron which is to declare the inability the Ordinary or the Temporal Courts On both sides it must be agreed that default of Literature is a good and just cause of refusal the Question is who shall judge of it it is said minus Sufficiens in Literatura ca ratione inhabilis i.e. it being indefinite in omni Literatura necessaria But they Cavil at the Word minus sufficiens as if that agreed him somewhat Learned and forget that 't is said ac perinde incapax And minus sufficiens is in Lawyer 's Latin totally insufficient and so 't is used in all
shall be tho' in a Suit between the Ordinary himself and another Dyer 293. 't is cited Bro. Quare Impedit 170. Justice Rhodes 3 Leon. 100. vouched a Case in 30 Edw. 1. out of a Manuscript of the Lord Catlins wherein upon a Quare non Admisit the Defendant pleaded that the Presentee was Schismaticus Adulter and the Court commanded that he should hold to one or other of them for which he said Adulter from hence 't is manifest that the Court did not dislike the Plea for the generality but the doubleness And then it was said That after all these Presidents on this side and many others which might be Cited of the like generality in other cases 't will be difficult to shew one single Instance or Case in which this matter of general defect of Learning was ever pleaded otherwise or any one Judgment against any Bishop whatever upon such a Plea for tho' in some Cases which they say are parallel and similar tho' in truth they are not as Criminosus and Schismaticus hath been adjudged too general yet this Plea of Minima in Literatura sufficiens ac ea ratione incapax as it has always been used without alteration of words so has it never yet been excepted against and in these Presidents of Edw. 3. before cited hath been thought good and Issue joyned thereupon This was the ancient form of Pleading and as all those ancient Pleas were founded upon Reason being such as the Subject Matter is capable of In the Case of a Coroner it 's a good Cause to remove him quia fuit minime idoneus ad exequendum officium istud and no charge of any particular insufficiency assigned Fitzh Nat. Brev. 163. and there is no question but that 't would be a good Cause and sufficiently certain in a Scire Facias to repeal vacate or cancel Letters Patents for an Office in the Law to say in Legibus hujus Regnt Angliae minus sufficient ' instructus without assigning any particular Case or Statute that a Man blundered at or was ignorant in Suppose an Office in the Law to which the King or a private Person hath the Nomination and the Court refuses to admit a Man so named and an Action brought for that Refusal c. would it not be a good Plea to say the Party was minus sufficiens in Scientia Legum ea Ratione inhabilis and particular Instances are Evidences This is in the Negative like a non fuit dampnificatus and there you never need to shew how unless 't were a particular Incumbrance at the time of the Contract otherwise 't is always a good Plea In Non Compos 't is never shewn in particular wherein or what Feats of Frenzy Non compos implies that he had a general Defect disabling him at that time to do an Act obligatory and valid and that resembles this for you need not shew wherein but the Particulars are Evidence The Reason of the thing proves the Convenience and Solidity of the distinction between Pleading a Negative and Affirmative For instance in this Case the Negative pleaded implies an entire denial of sufficient Learning to qualifie him for a Cure of Souls and that justifies the Ordinary and our Law Books are full of this Distinction Mode and other Circumstances of Quality Time and Place are requisite in Affirmative Pleas none of which are necessary in Negatives There might be cited infinite numbers of Cases to that purpose as Mauser's Case 2 Rep. 4. Broughton's Case 5 Rep. 24. Aston and Hill 3 Cro. 253. Hutchinson versus Lowson 3 Cro. 393. Wild and Dowse Latch 159. And as the Foundation of all those is the 40 Edw. 3.30 which is the ground of all these and many more subsequent Authorities to the like effect But besides there 's one modern Case 't is Church versus Brunswick Sid. 334. Bond to pay from time to time a Moiety of all such Moneys as from time to time he should receive and payment of a Moiety generally without shewing the particulars in certain was held a good Plea and the reason of that Judgment maintains the Rule now contended for which was because 't is of what he should receive from time to time otherwise if those words had been omitted because in that Case there would be a stuffing of the Rolls with a multiplicity of Particulars and the same Reason holds in the Case at Bar. Then 't is considerable and deserving of a Thought That if Learning be requisite to an Office Temporal for a Slander in which an Action lies there these very words would bear an Action As to say of a Judge or the like the very words here mentioned with reference to his Office 't would be deemed Scandalous and Actionable Now our Law will not allow uncertain doubtful and ambiguous words to be so Even in Affirmatives our Law allows of general Pleading where Particulars would be many As in Bond for performance of Covenants upon an Apprentices Indenture for finding him Meat Drink Washing Lodging and other Necessaries held that invenit Meat Drink Washing Lodging alias res nocessarias is a good Plea tho' intirely uncertain what or how much and the Reason is not only because 't is in the words of the Covenant for that Reason doth not always hold for many times you must shew how and are forced to vary from the words of the Covenant in the Breach as in case of quiet Enjoyment Breach must alledge how and by whom and under what Title the Man was disturbed but there 's another Reason because the Particulars would be many Cryps versus Sir Henry Baynton 3 Bulstrode 31. Case sur assumpsit That J. S. being a Friend of the Defendants and coming to the Plaintiffs House he fell sick the Defendant in consideration that the Plaintiff would provide for him such Necessaries as he should want he would bene fideliter solvere proinde The Plaintiff shews that he lay there two Months that the Plaintiff provided him Necessaries amounting in value to c. and held good without shewing the Particulars to avoid a multiplicity of Reckonings so 't is for a Surgeons or Apothecary's Cure Another Rule in Pleading there is That a Certainty or a Generality in Pleading shall be required according to the nature of the Subject Matter pleaded In pleading of Breach of a Statute Law it 's enough to use the Negative of the words of such Statute as it is in Case of a Covenant and by the same reason in this Case where a Statute says the Bishop may refuse propter defectum Scientiae it 's enough to say in Literatura minus sufficiens especially when 't is added ac perinde inhabilis Then were urged the Mischiefs and Inconveniences which must ensue and follow upon the Construction which they would make that this Plea is uncertain for their Reason only can be as was said before that the Court may judge if it be such a Deficiency of Learning as disables
to hold a Curacy of Souls and this is the Reason all their Cases go upon and the Reason insisted upon below i. e. in effect that they must try it not the Archbishop The same Pretence is applicable to any other defect and 't will in Consequence confound Jurisdictions 't will make an Enlargement of the Temporal and Diminution of the Ecclesiastical Jurisdictions tho' both are founded upon the same English Laws and of equal Age and Authority Nor is it any Answer which they have alledged against this That the Judgment at Law is not that this Hodder shall have Institution but that a Writ shall go to the Metropolitan to require him to admit a fit Person upon Mr. Hele's Presentation and that if Mr. Hodder be presented the Archbishop may refuse him as insufficient and so the Archbishop is still Judge of the Sufficiency This looks plausible but they omit or forget the Consequence that if this Judgment stand then if the Archbishop refuse the Temporal Courts must Judge upon another Writ Whether the Cause of Refusal were in a point of Learning which they think requisite for he must not plead a general Defect of Learning but mention Particulars that they may judge of them this is to subject even his Grace the Metropolitan to their Opinion in an Affair within his own Jurisdiction and Conusance It is at last to enforce the Episcopal Judges to contradict their own Opinions and to admit Persons which they think not sufficiently Learned tho' the first Judgment doth not directly place in Hodder yet the next will if the Archbishop prove of the same mind Now this is apparently the Consequence from the pretended Reason of the Judgment for them and it is in effect to deny the old Law that a defect of Learning is a sufficient Cause of Refusal and that the Ordinary is Judge of that Defect and not the Temporal Court And then as to the Cases objected Dyer 254. the Bishop of Norwich's Case in a Quare Impedit which is likewise in 2 Rolls Abridg 355 where the Bishop pleads that the Presentee was a common haunter of Taverns and other Places and Games unlawful ob quod diversa alia Crimina consimilia praed ' the Presentee fuit Criminosus sic inhabilis non idonea persona and this was held an ill Plea But the Grounds and Reasons of that Judgment were not for the generality of the Plea but because the defects specially declared before were not sufficient to make the Presentee sic Criminosus as being not Mala in se but prohibita by particular Laws under certain Penalties Nay the Argument they would make from the general word Criminosus will not hold in the Case in question but is clearly distinguishable from it because one single Act one Crime specially set forth would disable the Man but in this case Ignorance that works a Disability must not be of any one particular thing whatsoever but a general defect of Knowledge And another Reason against their Inference from these and the like Cases is this they belong to a different Examen and upon that they require as was said before a different pleading The great Case and the only one that can be pretended to come near this is Speccot's Case mentioned in every contemporary Report of that Age as a new Case and a new one it is and the Reasons of it are differently reported in divers Books and in truth the Reasons of the Judgment do not warrant it nor make it applicable to the Case at Bar. The Authority of it is questionable for they agree Schism or Heresie which the Judges there take to be all one a Cause of Refusal and others said they did not know what was Schismaticus inveteratus but they did not consider that the Archbishop might tho' they did not but perhaps the Ordinary may judge that to be Schism which is not and therefore the Temporal Courts are to judge what is Schism and in the enforcing of this Case below they said the Ordinary is Judge only of Matters of Fact not if the Fact be Schism which is somewhat strange The Reports of that Case are 5 Rep. 57. 1 Anderson 189 190. Gold 36 and 52. and 3 Leon. 198 199 and 300. in that Case the Bishop pleaded that the Presentee was Schismaticus inveteratus ideo non habilis upon the validity of this Plea there were divers Arguments Two of the Judges says my Lord Anderson were for the Plaintiff and two for the Defendant and for the Decision of the Matter the Opinion of the other was asked and by the greater Opinion Judgment was given pro quer Then were repeated my Lord Anderson's words fol. 189. the Instances that were urged were says he Criminosus Perjurus but they are Matters triable both by Law Spiritual and Temporal and the Coment or how is necessary to be shewn to determine the Trial but Schismaticus in the principal Cause shall be tried only by the Spiritual Court and not by the Temporal as that of an Heretick may be generally pleaded And divers Cases were put to prove General Pleas and Issues triable at Common Law and yet says he Judged pro Quer ' This is my Lord Anderson's Opinion of that Case and whether the Ancient Authorities vouched in that Case do warrant that Judgment must be submitted Besides by our Law 't is not any one Opinion tho' judicially delivered that can make or alter the Law nay it doth not oblige any further than the reason of it is considerable and agrees with the constitution and the Rules of Law my Lord Vaughan always declared in favour of Reason and Authority and that in Honour of our Law for the contrary is to say 't is founded upon no Reason then 't was urged that this Judgment was when the Courts below were in struggle with the Ecclesiastical and the then High Commission Courts Erected by 1 Eliz. had given some provocation which with frequent Prohibitions gave occasions to the Disputes between the Bishops and the Judges in the beginning of the Reign of K. Jac. 1. But admitting the Case to be Law the same is easily distinguishable from this and founded upon different Reasons which cannot govern or influence this 'T was urged first in that Case there was some possibility for the Bishop to have set out the Heresie certainly and particularly for all Heresie must be founded upon some particular Tenet that is Repugnant to the common received and Orthodox Doctrine Now in this Case say they the Heresie ought to be Assigned that the party may Traverse it and purge himself and the Arch-Bishop not to be inveighled and obliged to run over all the species of Heresie which say they may be almost impossible but may have only one particular Opinion to Examine whether the Presentee did obstinately maintain it for if the Temporal Court had been of Opinion that such Tenet in particular was not Heresie tho' the Ordinary thought it so
yet then they would have over-ruled the Plea and not have wrote to the Arch-Bishop at all This is the sole cause of that Judgment and then the consequence will be as was observed before But their own reason fails in this Case for here the sufficiency of Learning is Traversable for as hath been shewn it hath often been Traversed and as to the ea Ratione inhabilis no Objection can be to that for the old Authorities Cited do warrant nay require it and all Pleas of Special non est fact ' as by breaking of a Seal and the like are in the same manner Then besides the very words of the Law of Articuli Cleri are very much worthy of consideration it impowers the Bishop to refuse a Clerk propter defectum scientiae alias Causas rationabiles now all these Causes of Refusal mentioned in their cases comes under the causas Rationabiles and causa vaga in certa estnon Rationabilis now want of Learning is not included by intendment but by express words and therefore need not otherwise be set forth take it for granted that as they would have it the Temporal Judges are to Judge what is a reasonable cause of Refusal yet they are not to Judge if defect of Learning be a cause or not for in that the Statute is positive then if said to be deficient in Learning ea ratione inhabilis they had nothing to Judge upon they were only to write to the Arch-Bishop to know if the Fact were true if he were deficient and therefore it need not be set forth any otherwise then as the Statute expresses it tho' in that case they say there are divers sorts of Schisms and Heresies in Doctrines on which the Bishop might warrant his Refusal yet 't is not so much as once pretended there are any Opinions delivered in those cases that deficiency of Learning is subject to the same Rules of Pleading Then the Plea is in the Negative as was shewed before which is more than enough to make a good difference and Negatives in a Bar are always allowed to be more general because most favoured and especially here where the matter and person to which the words are applied do sufficiently restrain and determine the seeming uncertainty of it Nothing can be pretended to reduce this to a greater certainty but the Canons or the Statute of 13 Eliz. cap. 12. or other Laws of the same nature 1 Canons of King Jac. 1. made in 1602. and they were made pursuant to Canons made 1562. by which no Man was to be admitted nisi rationem fidei juxta Articulos Religionis in Synodo Episcoporum Cleri Anno 1562. approbatos Latine reddere eandem Scripturae testimonio Corroborare possit Can. 3 4. Conditiones in ordinandis requisit ' this is merely a Negative injunction on the Bishop never to confer Orders upon any Man that cannot do this it is not mandatory upon him to ordain every Man that can do this nor does it any way lessen or diminish the Authority or Judgment of the Ordinary in Examination of the fitness and Learning requisite So is the Statute of 13 Eliz. the same induces an incapacity on those that shall not subscribe the Articles but it leaves all things else to the Ecclesiastical Law neither the Canon nor the Statute are Derogatory from the Old Ecclesiastical Law they both leave it in Statu quo to the Ecclesiastical Judges no Man will pretend that these are a Repeal of the Statute of Articuli Cleri so that the Law remained as it did with more Latitude indeed to the Bishop but not with more favour to the Clerk They objected that here was not convenient notice to the Patron and the usual pleading of it is the same day But surely that 's well enough and so was it held by all the Judges that favoured their side in this case and 't is apparent that he had above four Months time to have presented another besides the Judges declared below that if not a convenient time it ought to have come on their side but they admit notice by their Replication and insist upon his Orders as an Estoppel to say that he was Illiterate They pretend That he is still under the Bishop's Jurisdiction and that he may deprive him for the same Cause if sufficient after Institution but that 's a great mistake for there may be a cause of Refusal which is not of Deprivation for he may become Learned that was not so and besides the Rule is false after induction they would then be discoursing about Freehold c. a Man may be refused because non compos but he cannot be deprived for that Cause though the Bishop may provide a Curate c. As to the pretence of six Months notice from the time of the Refusal 't was never insisted on at the Bar in C. B. or B. R. and the Judge who doubted did only say he was not fully satisfied with the current Opinion of the Books his doubt arose upon this That the cause of Refusal was not within the Partron's knowledge Suppose the Man had not Episcopal Orders but pretended to them and the Patron knew nothing of the matter should this Presentation prevent lapse and the rest were all of another Opinion and the Books are full to this effect for the Patron ought to present a Man qualified otherwise 't is as no Presentation and then lapse in course Suppose he had presented a mere laicus 't is as none suppose he had presented a Woman as idonea persona 't is as none and these instances may seem Trivial but our Books do mention them 2 Roll's Abridg. 364. Kelway 49.59 34 Hen. 7.21 14 Hen. 7.21 and Dyer 227. and Sir Symon Degges Parson's Gounsellor Upon the whole the Question is whether a Court of Law shall Repeal the Statute of Articuli Cleri whether the Plea shall be adjudged ill which is in the very words of that Statute when the same Fact was never pleaded otherwise nay when it hath been pleaded thus often times and never excepted against till now Wherefore it was prayed that the Judgment might be Reversed On the other side 't was argued That the Bishop's Plea below was too general and the Plaintiffs Replication good that his being Ordained a Priest and a Licensed Preacher is enough that this is an Answer to the Allegation of the Minus Literatus his being a Priest is a kind of a supersedeas to his Examination that there was no Learning requisite to his having a Cure of Souls which was not Antecedently necessary to his receiving of Orders That he ought not to be admitted into Orders unless he be assured of or named to some Curacy all which supposes the Qualifications Requisite for a Benefice with Cure of Souls then 't was urged that here was not notice sufficient for 't is not till many days after the Refusal for this might have put Hele the Patron beyond the possibility
that this was never designed to take effect as an use to be vested immediately and it was no more then if the Deed had declared the use to be after the expiration of twenty Years or at other future time to the Heirs of the Body of William Horne and for default of such Issue to his right Heirs and that such time had happened the use would have vested in the Heirs of his Body or in his right Heirs if he had Died before that time That 't is true there must be a person capable of taking at the time when the Contingency happens and so there was here at the time of his Death That it could never be intended that the Heirs should take immediately for that then there was no such person in being there could be no Heirs during his Life That this was like the Case of Webb and Sir Caesar Cranmer where the Trust of the Estate during the Life of the Duke of Southampton was adjudged to remain in the Heirs of the Devisor the Duke himself not being capable to take it That here being no person able to take under this Deed and Fine during the Husband's Life it shall be construed to remain as it was before till that Life ends and then the use ought to take effect for otherwise both the Deed and Fine are to no purpose they are all in vain and the intent of the parties to it is defeated And there were Cited the Lord Paget's Case in 1 Anderson and Woodlett and Denny 2 Crook 439. and 1 Leon 256. On the other side it was argued with the Judgment that this Deed and Fine can raise no use to the Heirs of the Husband according to the Rules of Law It was insisted That if Husband and Wise do levy a fine of the Wife's Land and no uses are declared or such uses are declared as are void and can never take effect such Fine is to the use of the Wife and her Heirs that in such case the Estate remins ' as it was or if the Fine Operates any thing it shall be for the benefit of the party to whom it did belong before Then it was urged That this was designed to raise an use immediately to the Heirs of the c. and that there was no person capable of taking at the time of levying this Fine the common Maxim in the Law proving it quod nemo est heres Viventis that the name and nature of an Heir import a successor after Death that this being designed to raise an use ex presenti and no person being capable of taking at that time the same must be void That this is the case of a Deed executed in the Life-time of the parties and not a Will where large allowances are often made in favour of supposed intentions by reason that persons are often surprized by Sickness and presumed to want the assistance of Counsel but the Rules of Law are always allowed to govern in Construction of Deeds Then it was urged that nothing was ever designed to the Husband himself by this that no words in the Deed can favour such a presumption that this must either work as an Estate in present or by way of remainder if the latter then by the known Rules of Law there must be a particular Estate to support it and such particular Estate must be either expressed or implied here is none expressed and if implied it must be in the Wife and if in her then she dying before the Husband her particular Estate did determine before the remainder could take place and consequently by all the Rules of Law it can never take place and no particular Estate can be implied in or for the Husband for that there is nothing said shewing such intent and if the Construction of Law be to prevail then as was urged before that is in favour of the Wife But here it was plainly designed to take effect immediately and therefore void because there was no person in being capable of taking at the time the Estate was intended to vest and no uses are to be executed by the State which are limitted against the Rules of the Common-Law Chudleigh's Case 1 Rep. 129. if the limitation of an use be at this day to A. for Years and afterwards to the use of the Heirs or Wife of B. which shall be this is void because 't would have been void if limitted in possession Dyer 190. the Earl of Bedford's Case in Popham 3 4. and 82. resolved in like manner to be void because would have been so in an Estate conveyed at Common-Law And all that can be objected is that then this is all void which is no more than may be pretended upon every imperfect conveyance but here the Case is in a Court of Law and the Defendant is a Purchaser who hath been Thirty Years in Possession tho' that doth not appear in the Case And it was said That as to the Notion of a springing contingent use 't is hardly intelligible in it self and by no means applicable to this Case because here are no words in this Deed that carry any relation to a future time or Contingency and the Objection is only this That the Conveyancer was mistaken in his Judgment or that the parties knew not what they meant or that they meant to create such an Estate and in such a manner as the Law will not allow and neither of these are Reasons sufficient to prevail for the Reversing of a Judgment given according to the Rules of Law by which Men's Inheritances have all along been governed and upon which many Estates do now depend 'T was further urged That the contrary Opinion which must be advanced to annul this Judgment would reder the Law and Men's Conveyances as doubtful and uncertain as last Wills and Testaments and submit Men's Titles to the Arbitrary Power and Will of those that shall Judge of them It is to impower them to suppose intentions where not expressed and to raise uses by Implication where they were never designed And in short 't will destroy all the difference between good and bad Conveyances and enable Men to limit uses and raise Estates contrary to and in different manner from what the Law hath hitherto allowed it will render Purchases more uncertain than they are at present and that 's more than enough already and the consequence must be to produce a confusion in property c. wherefore upon the whole it was prayed That the Judgment might be affirmed and it was affirmed accordingly Watts al' versus Crooke APpeal from a Decree in Chancery The Case in short was this That Peter Crooke and Elizabeth his Wife who was Sister of the half Blood to George Watts claimed to have an equal share with John Watts and Elizabeth Camfield who were Brother and Sister of the whole Blood to the Deceased of his Personal Estate and a Decree was made in Chancery in favour of Crooke and his Wife It was argued on
be true and duly tendered then this Writ and if it be returned quod non ita est then an Action for a false return and thereupon the surmise will be tried and if found to be so Damages and upon such a Recovery a peremptory Writ Commanding the same that the Law is thus seems plain tho' no precedent can be shewn of such a Writ 't is only for this Reason because no Judge did ever refuse to Seal a Bill of Exceptions and none was ever refused because none was ever tendred like to this so artificial and groundless But that such Actions lie upon this Statute were Cited Regist 174. Nat. Br. 10. and they are called Attachments and Damages shall be to the Party and a Fine to the King so it is in all Cases of Statute Laws which do either prohibit or Command the doing of a thing for the advantage of any person such person if injured by a disobedience to that Law is intitled to an Action tho' the Statute doth not in express words give one 2 Inst 55.74.118.131 and the same holds in judicial proceedings the Case of the Marshalseas 10 Rep. 75. 4 Edw. 4.37 and the same Reason warrants the Action for a Scandal ' Magnat ' But perhaps 't will be said that tho' an Action lies for a disobedience to this Writ yet the Writ not being returnable no Action lies for a false return and consequently no peremptory Writ and by consequence there 's no adequate remedy in case of an unjust Refusal but to this it may be answered That the Writ being Conditional 't is a good Answer to it that the Fact was not as is surmised and that return will justifie the Refusal And certainly such return may be made and if not when the first Writ is proved to be true in all its Suggestions by Judgment in an Action for not obeying it the same Reason will warrant a peremptory Writ But whether this be thus or not it only argues an imperfection in the Law proper for the notice of the Legislature and will not justifie the method of proceeding now attempted here in this place It hath been Objected That such Proceedings are not like to be successful because Judges still are to try those matters but these are Reflections not Arguments and our Constitution is founded on a Notion that parity of Condition is the best Qualification of a trier and here must be a Jury to try the Fact and they are subject to an Attaint if their Verdict contradict the Evidence And no direction of a Judge can excuse them for if it be a point of Law they are not oblig'd to find a special Verdict but may find a general one upon their own peril of an Attaint Then Either this is designed as a Criminal proceeding against the Judges in order to Punishment or as a Civil proceeding for to gain Damages to the Party or else neither one nor the other but to have an Order Commanding the thing to be done which if refused then to have them compelled by Imprisonment quousque c. neither of the first are pretended and the last is not a Warrantble method when the Law hath prescribed a Writ in Chancery and that 's not prosecuted Here cannot be tried the particular requisites to ground such an Order as they desire as whether the Evidence or Exception as stated was offered at the Trial or if offered whether 't was over-ruled nor whether the matter offered were believed for if not believed it makes no Evidence and so can raise no point in Law There can be no Jury impanelled to try this nor can an Issue be directed hence for the trial of it By this means the Judges lose the benefit of that legal Trial by a Jury of their Peers which is their fence and protection against Power Art or Surprize the best for indifference and discovery of Truth The Institution of the Law is cautions and wise in its provision for both Challenges are admitted below 't is derogatory to the Honour of this Court to suppose it necessary here but to have it in Westminster-Hall is however reckoned a Commoner's priviledge and Birth-right there the Law is determined by one and the Fact is ascertained by another here both are in the same hands Not that any Jealousie can be supposed of mischief by it in this House but the practice of it now may give president to future Reigns and Ages in which there may be danger of a partiality Below there are by the Law appointed and provided particular Terms and days for doing Justice and they are certain the distances between them are known according to the nature of the Suit which capacitates the parties concerned their Agents and Witnesses to be ready and there can be no surprize It must not be presumed That this House may err but if any Error be possible 't is impossible for the Judges to be relieved for these Reasons in respect of the Court for no Address can be made in such case but to the same persons who did the wrong which is always with some prejudice or disadvantage because the party Erring is to Judge if he himself hath Erred Then the Proceedings here being in English and Summary it cannot well be made appear what was the proof in the first instance no Record being kept thereof Then suppose Evidence be allowed which is none the person against whom the same is given is remediless these Evils may happen in the repeating of this practise in the next Reign tho' they cannot in the present Then this method is not only against the general tenor and frame of the Common-Law but against divers Acts of Parliament and Declarations of this House Magna Charta 9 Hen. 3. cap. 29. is express per judicium parium vel per legem terre now the latter only refers to such cases which are not Triable per jud ' par ' besides to make it the lex terre there must be Ancient and continual usage 22 Edw. 3. numb 30. shews that no new practice can make a Law By 25 Ed. 3. cap. 4. 't is Enacted That no Man shall be taken by Petition or Suggestion to the King or to his Counsel without Presentment or by process or Writ Original at Common-Law and that none shall be put out of his Franchise or Freehold but by due course of Law before used here the one explains the other by Writ or due course of Law are taken for the same thing and both used in contradistinction to Petition the 28 Ed. 3. cap. 3. is the same Then the 42 Edw. 3. cap. 3. 't is by due process and Original Writ according to the Old Law of the Land the 1 Rich. 2. numb 87. Cott. 162. no Suit to be determined before the Lords or before the Counsel but before the Justices only But the 4 Hen. 4. cap. 23. is fuller it recites That in Pleas as well real as personal in the King's Courts the parties be made to come
the Alienation even of an Ideot and then after Office the Practise is to Issue a Scire facias to him in possession or to the Alienee and so is Fitzh tit Scire facias pl. 2. 106. All these Methods prescribed by the Law would be useless if the Acts themselves were void Then 't is as certain that the Office must be found during the Parties Life and during the insanity and not afterwards If there had been an Office 't would only avoid it with a prospect as it would be in case of an Heir after death Even after an Office the King cannot have the Profits from the time of the Alienation which shews it not it not void from the beginning If a Suit be against an Ideot after Inquisition the Ideot cannot plead it but the King shall send a Supersedeas to the Judges suggesting the Inquisition so that even then the Party himself cannot avoid it As to the other way of avoiding it by the Heir it must be by Writ or Entry and till Entry or Writ the Act remains good But here 's no Contest with the Party himself or with his Heirs but with a Remainder Man This Act of Surrender was no tortious Act it wrought no discontinuance there was no Trust in him to preserve the Contingent Remainder A Feoffment with livery is allowed not to be void and yet that may do a wrong by discontinuance c. As to the pretence that a Warrant of Attorney to make livery is void that doth not reach this Case for here 's an Act done by himself which would have passed the Estate as by and from himself if he had been of sound Mind Then 't was desired that the other side would shew any such Case as this whereas multitudes of Gifts Grants Releases Bonds and other Specialties sealed and delivered by the Party himself are allowed to be good and the same reason holds for a Surrender made in Person and there 's no difference between a livery made in Person and a Surrender the Act being Personal and not by another under his Authority makes the livery good and so it ought to be here 18 Ed. 4.2 Perkins sect 139. And 't is observable in 39 Hen. 6.42 per Priscott upon the Inquisition 't is reseized and revested into the Interest of the Ideot and consequently of the King and if revested 't was once out of him Now here 's no prejudice to the Man himself by this Opinion he is taken care of and his Acts avoided by the King on his behalf and his Heirs may avoid them But that Strangers should take notice of them as void was denied and therefore prayed that the Judgment should be reversed On the other side it was argued with the Judgment That this never was a Surrender that 't was against sense and reason to allow the Acts of a Madman a Person distracted to be valid to any purpose that in case of livery it had been allowed to be only voidable by reason of the solemnity and notoriety of the thing but in case of a Deed or a Thing passing only by Deed 't was otherwise and Bracton Britton Fleta and the Register were cited where 't is declared who can take and who can alien and that a Madman cannot alien and Fitzh is of Opinion that the Writ of dum non fuit compos may be brought by himself that there was a notion scattered in the Books that such Acts are only voidable but the reason of the Law is otherwise 39 Hen. 6.42 hath the distinction that Feoffment with livery is good but if livery be by Warrant of Attorney 't is void If it be a Feoffment with Warranty by Deed and possession delivered with his own hands yet the warranty is void because the Deed is void Perk. 5. The Deed of a Mad-man is void if he grants a Rent 't is void If an Infant makes a Warrant of Attorney 't is void so is Whittingham's Case A Deed and a Will are not to be distinguished and by the same reason that the one is void the other is so Finch 102. is general All Deeds of a Man of non sane memorie are null 12 Rep. Shulter's Case 'T is an offence to procure a Deed from him The Civil Law makes all his Acts which he doth without consent of his Curator to be void A Madman is taken pro absente 'T is a Rule unaccountable That a Man shall not stuitifie himself that he shall not be able to excuse himself by the Visitation of Heaven when he may plead Duress from Men to avoid his own Act. 'T is absurd to say That a Deed procured from a Man in a Fever or in Bethlehem shall be valid to any purpose Fitzherbert who was a good Lawyer ridicules the pretence and maintains That he himself may avoid such Act. Then were cited 2 Inst 14. Lloyd and Gregory 1 Cro. 501 502. Perkins tit Grant 13. Then it was said That in this Case there needs not much Argument the Reason of the Thing exposes the pretended Law And the Judges have declared that this Surrender is void the word amens or demens imply that the Man hath no Mind and consequently could make no Conveyance Wherefore 't was prayed that the Judgment should be affirmed and without much debate it was accordingly affirmed Henry Earl of Lincoln by Susanna Countess of Lincoln his Mother and Procheine Amye Appellant Versus Samuel Roll Esq Vere Booth Hugh Fortescue Esq and Bridget his Wife al' Respondents AApeal from a Decree of Dismission in Chancery The Case was thus Edward late Earl of Lincoln who was Son and Heir of Edward Lord Clinton the only Son of Theophilus Earl of Lincoln deceased being seized in Fee of the Mannors of c. after his Mothers decease who is yet living and of other Lands of about 3000 l. per Annum part of the ancient Estate of the Family And designing that in default of Issue-Male by himself his Estate should go with the Honour made his Will 20 Sept. 34 Car. 2. and thereby devised the Premisses to Sir Francis Clinton for Life Remainder to his first and other Sons in Tail-Male with many Remainders over to such Persons in Tail-Male to whom the Honour might descend and directed that his Houshold Goods at ...... should remain there as Heir Loomes to be enjoyed by the next Heir-Male who should be Heir of Lincoln and made the said Sir Francis the Appellants Father and after his Death Earl of Lincoln Executor On the sixth of Novemb. 36 Car. 2. Earl Edward made another Will in writing in like manner with the alteration of some Personal Legacies and afterwards in April 1686. and in Dec. 1690. did republish his Will Then Earl Edward sold part to Richard Wynne Esq for 24491 l. 3 s. 6 d. and mortgaged the Premisses in question to him for 12200 l. Then Earl Edward by Deeds of Lease and Release dated the 27th and 28th of April 1691. conveys his whole Estate to
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
they should be in actual Possession of the King held that they should be in him by force of that last Act and Reason will warrant these Differences because if otherwise Inconsistencies and Contradictions must be allowed Then this is a new Law in the whole 't is a new Parish 't is a new Advowson and in truth 't is no Advowson till the Avoidance nay by the words of the Act if any difference can be in an instant between at and after as our Law in several Cases allows it as per mortem post mortem Devise by Jointenant c. there 's no Patronage fixed 't is no Advowson until after the Avoidance for so are the words after the Avoidance the Advowson Patronage and Presentation shall be vested foret vestit ' in Episcopo Lond ' Domino Jermyn and till then 't is vested in no Body and that which is in no Body is not at all unless it be as some times for necessity sake we say in nubibus or in abeyance but to say that an Advowson shall be in abeyance before 't is created or ordained to exist or be at all must favour somewhat of Absurdity Now the King can have no Prerogative turn upon an Avoidance by a Promotion but when the Patron 's Clerk was promoted and preferred and here is no Patron till that Avoidance happen They say 't is vested immediately tho' to take possession hereafter as a Reversion granted cum acciderit according to 3 Cro. 323. and 1 Saund. 147. But that 's not this Case for there is a present Grant here the words are After the Avoidance shall be vested and not before and being a new thing it may be so as a Rent-charge de novo may be granted to take effect de futuro but cannot be so of an old Rent 2. Dr. Tennison comes not in by the Patron 's Presentation but by Donation of the Parliament and there is not any President for a Prerogative to present to a Donative upon a Promotion The King cannot present to that which the Patron could not have presented to and the Patron could not present to a Donative quatenus a Donative and for the King to present to a Donative is to injure the Patron for 't is to make that Presentative which was never intended by the Patron to be so And yet in Case of a Donative with Cure of Souls as it may be of a Parochial Church tho' exempt from Ordinary's Jurisdiction according to Yelverton 61. 2 Roll. Abridg. 341. the Ordinary may compel the Patron to Collate some body as was held in Case of the Rectory Parochial Donative of St. Burian's in Cornwall and the Tower of London is with Cure of Souls 1 Cro. 330. 2 Roll. Abridg. 331. 1 Inst 144. The same will be void by a Promotion of the Incumbent for 't is not meerly the change of Inferiour into Superiour that makes the Avoidance for then an Incumbent made Bishop of another Diocess or in Ireland would not avoid the Benefice but 't is the Doubleness of the Charge contrary to the Council of Lateran which hath been received here This is more different from the pretended Notion and Reason of this Prerogative then that Case of a Common Donative for in Case of a Donative there 's an Incumbent of the Patron 's own preferring who is further promoted by the King and still in being and the same Patron claiming a Right to fill the same Here 't is an Incumbency by Gift of the King Lords and Commons And then if it be considered what this new Prerogative is for so it must be termed since there 's no footsteps for it in the old times and the Statute of Prerogativa Regis which enumerates most of them and is rather a Collection of old Prerogatives then a new Statute mentions it not 't is a Prerogative to present upon the Promotion of the Patron 's Presentee or incumbent presented in his Right here is no such thing 't is as their Books say when the Patron 's Presentee is advanced to a greater Dignity in the Church and the pretended Reason given for it to avoid the Objection That no Prerogative is to be injurious or to import a Wrong done to the Subject is this That here 's no Injury to the Patron but a Kindness to his Friend because the Person which he chose and preferred is bettered and further preferred to an higher Degree of Honour and State in the Church all this fails here so that there doth not seem to be the same Colour why the King should have it in this Case It is a good Argument according to Mr. Littleton That because no such ever was before that therefore of right it ought not to be And if no Practise hath been to warrant it in Case of a Gift by Act of Parliament there 's no reason it should be allowed in this Case for a Prerogative never used can never be with Propriety called a Prerogative much less reason have they for it if they have no Practise or presidents to warrant their Claim in case of any Donative Prima facie the patron hath the right to evade that right of his Mr. Attorney pretends to a Prerogative then it being of common right with him they ought to demonstrate that there is such a Prerogative to controul that right in this particular Case and the Arguments brought for it ought to be clear convincing and undoubted Now because where a Patron 's Presentee is preferred by being consecrated a Bishop the King shall present that therefore where the Parliament's Presentee is preferred the Patron shall lose the benefit of his Presentation is a non sequitur because the Cases are not the same for the supposed Recompence or Consideration in the one holds not in the other This is not the Case of a Prerogative incident to the Crown from the Necessity of Government nor is it a Prerogative which respects the Continuance or Improvement of the Revenue so as for the benefit of the Kingdom an Extent or Enlargement of it beyond former Practise may seem absolutely needful and therefore the common pretences of Intendment and Presumption are no more on their side then upon this nay 't is rather otherwise because that common right is with the Patron It is no Objection to say That there never was such a Promotion or Avoidance before whether there were or not is not material but that rather turns upon them for that Evinces beyond dispute that there never was such a Prerogative presentation in Fact as they now contend for Argument ' Ã simili is the weakest but they have no Case like this nay they have no Opinion in the Books declaring on their side nay the Book Definition of this Prerogative as was said before is only to present to a Benefice vacant by promotion that was antecedently presentable here the whole Kingdom is Patron and all that they can pretend to is when a Man is dignified by promotion who
Days of one whether they be many or few in number must be understood the Life c. That the Testatrix here could mean no other by Days but Life when she said That in case it pleased God to take her out of this World if it was his Will to give Days to give Life to her Child she left it all that belonged to her knowing well That if the Child was born alive it must be maintain'd from that Moment out of what was so left it that it appeared from the Preamble of the Codicil viz. In case it shall please God to take away my Child as well as my self then c. That the Testatrix never intended the Estate to go over unless the Child died as well as her self in her lying in Then it was argued from the Nature of the particular Legacies they were of such a sort as that they must be given without Sense or Reason had she not supposed her Child's Death as well as her own in her lying in for otherwise those new Ribbons must become old which were intended as a Present to a young Gentlewoman Clothes lockt up in a Trunk would have been of no use to Persons then in Distress and the poor Orphan had gone too far in Years to learn a Trade Then other Things are given as Tokens to be kept and worn by them for her sake as long as they lived Now what Reason can be assigned for this if she did not mean and suppose a Death in her lying in From whence it was inferred That the Intention of the Testatrix was to give all she had to her Child in case she survived her and if it did not survive her but was taken away as well as her self in her lying in then her Intention was to give that same All which she had given to her Child to other People as specified in the Will and unless this were the Intention the Child must have starved or lived upon Charity not having the Property of what was left it and the Condition precedent according to the Respondents Exposition excludes the Child till its Years of Discretion wherefore 't was prayed that the Decree might be reversed On the other side it was argued with the Decree that the same was just that no Objection could arise from the Nature of the other Legacies or of this as being reasonable or unreasonable for that 't is the Natural Right and Priviledge of every Person to dispose of that which they have at their pleasure to do what they will with their own a Priviledge so certain that tho' 't is used many times to ill purposes yet the Law cannot interpose nor restrain the Proprietor no not to preserve him and his Family from ruine as daily Experience shews That it is agreeable to Law and Justice and to true Piety to see that the Will of the Dead be performed and tho' the Law have ascertained how Estates shall go when there is no Will yet when there is a Will that disposes of it otherwise then the Law would do the Courts below will compel a Performance of such a Disposition as the Will directs Then 't was said That the Intention of the Testatrix in favour of the Respondent is both Charitable and Prudent He was her nearest Relation in England and considering a great part of what she left was once her Husbands she honourably gave as much to his as to her own Relations making her Husband's Sister and the Respondent Charles residuary Legatees to share equally and so is the Decree And to Reverse this Decree and permit the Appellant to go away with the whole as she must if the Decree be reversed doth directly destroy all the Prudent and Charitable Intentions of the Testatrix and carries the Estate where she never designed it viz. to the Appellant Then 't was argued That the Court of Chancery had done well in taking the Opinion of Persons skilled and knowing in the Matter in question that the Gentlemen of the Long-Robe of that Country now here in London did all give their Opinions that according to their Construction of these words in a Will it was an arrival to Years of Maturity or Age enabling to dispose that unless the Child had lived to such an Age as that she had been capable to give the same away her Representative in this Case could not be intituled to it Then ' was said That words are to be interpreted according to the Sense and Acceptation of those which use them That the Testatrix was a Native of France and therefore this method of Inquiring into her Meaning was just and reasonable That the Courts at Law have frequently consulted Merchants about the signification of Mercantile Terms and Trinity House about Marine Phrases so in like manner Grammarians Criticks Chymists and Artificers have been in the Court of Kings Bench consulted according to the Nature of the Thing in question upon words belonging to and used in their respective Professions That in case of words disposing of an Estate in a Foreign Language by the Will of a Foreigner the Judgment of Divines or Grammarians could be no proper Direction to the Court of Chancery but the Means of Information must be from those who were acquainted with the Rules of Interpretation in Case of Wills amongst those People That the Opinion of those Gentlemen was sufficient to justifie the Decree But then it was further argued That here the Meaning of the Testatrix could not be such as the Appellant would pretend i.e. that she meant to give her Estate to the Respondent and others only in case the Child she then went with should be still born or if born alive should dye with the Mother in her lying in for these Reasons First For that she was so far from apprehending that the Child would either be still born or if born alive would dye as soon as her self or in her lying in that she expected 't would live and as she hoped to full Age for she takes particular Care of its Education and earnestly recommends the same to the now Appellant and others prays God to bless it and not forsake it and hoped that all the Relations on the Father's side would for the Father's sake do it all the Services it should stand in need of Then taking it that the Testatrix did expect the Child to out-live her as unquestionably she did if her meaning had been such as the Appellant hath put upon her words the way to have it sure fixt to the Child and then to the Appellant had been to have made no Will at all because if the Child survived the Mother but a day or an hour or never so little the Law had vested the whole first in the Child in its own Right and upon the Child's decease in the Appellant as Administratrix to the Child Suppose the Child had outlived the Mother for a Month or the like what Interpretation could have been put upon this Will
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