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The case of

Odiam.

But put it by way of use; a man makes a feoffment in fee of both manors, and limits the use of the manor of Dale and all the other lands in Vale to the use of himself and his wife, for her jointure; and of the manor of Sale to the use of himself alone. Now his wife shall have no jointure in the manor of Sale, and so was it judged in the case of the manor of Odiam.' the manor of And therefore our case is more strong, being by way of use; and you may well construe the latter part to control and qualify the first, and to make it attend and expect; nay, it is not amiss to see the case of Peryman, 41 Eliz. Coke, p. 5. 5 Co. f. 81. f. 84. where by custom a livery may expect; for the case was, that in the manor of Portchester the custom was, that a feoffment of land should not be good, except it were presented within a year in the court of the manor; and there ruled that it was but actus inchoatus, till it was presented. Now if it be not merely against reason of law, that so solemn a conveyance. as livery, which keeps state (I tell you), and will not wait, should expect a farther perfection, a fortiori may a conveyance in use or declaration of use, receive a consummation by degrees, and several acts. And thus much for the main point.

Now for the objection of the word immediate; it is but light and a kind of sophistry. They say that the words are, that the uses shall rise immediately after the declaration, and we woul 1 have an interposition of an act between, viz: that there should be a declaration first, then a new assurance within the six months, and lastly the uses to rise: whereunto the answer is easy; for we have showed before that the declaration and the new assurance are in the intent of him that made the conveyance, and likewise in eye of law, but as one compounded act. So as immediately after the declaration must be understood of a perfect and effectual declaration, with the adjuncts and accouplements expressed

So we see in 49 E. III. f. 11. if a man be attainted of felony 49 E. 3. f. 11, that holds lands of a common person, the King shall have his year, day, and waste: but when? Not before an office found. And yet the words of the statute of prærogativa regis are, Rex habebit catalla felonum, et si ipsi habent liberum tenementum statim capiatur in manus domini, et rex habebit annum, diem et vastum and here the word statim is understood of the effectual and lawful time, that is, after office found.

1 Probably Odiham,

2 H. 4. f. 17.

27 H. 8. f. 19.

Jermin and
Ascough's

So in 2 H. IV. f. 17. it appears that by the statute of Acton Burnell, if the debt be acknowledged, and the day past, that the goods of the debtors shall be sold statim, in French maintenant; yet nevertheless this statim shall not be understood, not before the process of law requisite passed, that is, the day comprised in the extent.

say

So it is said 27 H. VIII. f. 19. by Audley the Chancellor, that the present tense shall be taken for the future; a fortiori I the immediate future tense may be taken for a distant future tense. As if I be bound that my son being of the age of twenty-one years shall marry your daughter, and that he be now of twelve years; yet this shall be understood, when he shall be of the age of twenty-one years. And so in our case, immediately after the declaration is intended, when all things shall be performed that are coupled with the said declaration.

But in this I doubt I labour too much; for no man will be of opinion that it was intended that the Lady Stanhope should be six whole months without either the old jointure or the new; but that the old should expect until the new were settled without any interim. And so I conclude this course of atonements (as Fitzwilliams's case calls it); whereby I have proved that all the words, by a true marshalling of the acts, may stand according to the intent of the parties.

And

I may add tanquam ex abundanti, that if both clauses do not live together, they must both die together; for the law loves neither fractions of estates nor fractions of constructions. therefore in Jermin and Askew's case, 37 Eliz., a man did case. 37 Eliz. devise lands in tail with proviso, that if the devisee did attempt to alien, his estate should cease, as if he were naturally dead. Is it said there that the words as if he were naturally dead shall be void, and the words that his estate shall cease, good? No, but the whole clause shall be void. And it is all one reason of a so that, as of an as if, for they both suspend the sentence.

So if I make a lease for life, upon condition he shall not alien, nor take the profits, shall this be good for the first part, and void for the second? No, but it shall be void for both.

So if the power of declaration of uses had been thus penned; that Sir John Stanhope might by his deed indented declare new uses, so that the deed were inrolled before the Mayor of St. Albans, who hath no power to take inrolments; or so that the deed were made in such sort, as might not be made void

by Parliament; in all these and the like cases the impossibility of the last part doth strike upwards, and infect and destroy the whole clause. And therefore, that all the words may stand is the first and true course; that all the words be void, is the second and probable; but that the revoking part should be good, and the assuring part void, hath neither truth nor probability.

Now come I to the second point, how this value should be measured; wherein methinks you are as ill a measurer of values as you are an expounder of words. Which point I will divide, first considering what the law doth generally intend by the word value; and secondly to see what special words may be in these clauses, either to draw it to a value of a present arrentation, or to understand it of a just and true value.

The word value is a word well known to the law, and therefore cannot be (except it be willingly) misunderstood. By the common law there is upon a warrant a recovery in value. I put the case therefore that I make a feoffinent in fee with warranty of the manor of Dale, being worth twenty pounds per annum, and then in lease for twenty shillings. The lease expires; (for that is our case, though I hold it not needful ;) the question is whether upon an eviction there shall not be recovered from me land to the value of twenty pounds.

So if a man give land in frank-marriage then rented at forty pounds and no more worth; there descendeth other lands, let perhaps for a year or two for twenty pounds, but worth eighty pounds: shall not the donee be at liberty to put this land in hotchpot?

So if two parceners be in tail, and they make partition of lands equal in rent, but far unequal in value; shall this bind their issues? By no means. For there is no calender so false to judge of values as the rent, being sometimes improved, sometimes ancient, sometimes where great fines have been taken, sometimes where no fines; so as in point of recompense. you were as good put false weights into the hands of the law, as to bring in this interpretation of value by a present arrentation. But this is not worth the speaking to in general: that which giveth colour is the special words in the clause of revocation, that the twenty pounds' value should be according to the rents then answered, and therefore that there should be a correspondence in the computation likewise of the recompense.

But this is so far from countenancing that exposition, as, well noted, it crosseth it; for opposita juxta se posita magis elucescunt: first, it may be the intent of Sir Thomas in the first clause was double, partly to exclude any land in demesne, partly because knowing the land was double, and as some say quadruple, better than the rent, he would have the more scope of revocation under his twenty pounds' value.

But what is this to the clause of recompense? First, are there any words secundum computationem prædictam? There are none. Secondly, doth the clause rest upon the words similis valoris? No, but joineth tantum et similis valoris. Confound not predicaments; for they are the mere-stones of reason. Here is both quantity and quality. Nay he saith farther, within the same towns. Why? Marry it is somewhat to have men's possessions lie about them, and not dispersed. So it must be as much, as good, as near: so plainly doth the intent appear, that my Lady should not be a loser.

For the point of the notice, it was discharged by the Court.

THE

ARGUMENTS

ON THE

JURISDICTION OF THE COUNCIL OF THE

MARCHES.

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