Richard Fulmerston, Plaintiff, and Simeon Steward, Defendant

JurisdictionEngland & Wales
CourtCourt of the King's Bench
Judgment Date01 January 1816
Date01 January 1816

English Reports Citation: 75 E.R. 160

OF THE KING'S BENCH

Richard Fulmerston, Plaintiff, and Simeon Steward
Defendant

A brief Eeport of the Opinions of the Justices of the King's Bench in a Case upon the Statute of Dissolution of Abbies, 31 H. 8. cap. 13. argued in the Term of St. Michael, in the First and Second Years of the Reign of King Philip and Queen Mary, between richard fulmerston, Plaintiff, and simeon steward, Defendant, in an Action of Trespass, brought in the County of Suffolk. And the Record is to be seen among the Records of Easter Term, 6 Ed. 6. Rot. ultimo. Mich. 1 & 2. P. & M. Whore pleading of seizin in a college, without saying injure colltgii, and of part of a statute, and of the enrolment of a deed to the King, without shewing the manner thereof, and of seizin in the King as in right of his Crown by the statute of 31 H. 8. cap. 13. shall be good. And where a lease made within a year next before the statute of 31 H. 8. to one who had another lease at the time of the making of it, was good and for what time. S. C. Dyer 102. pi. 1. The plaintiff declares of his close broken at Elveden, in the said county, in the third year of the reign of King Edward the Sixth. The defendant saith, that the place &c. was 100 acres of pasture in Elveden, parcel of the manor of Elveden, which * P. 37 H. 8. Bro. Appeal 122. 2 H. H. P. C. 302. H. P. C. 267. t 9 Co. 67. b. Wing. Max. reg. 101. pi. 30. 1PLOWDBH, 102. FULMERSTON V. STEWARD. IN B. R. 161 manor George Wyndham, master of the College of Rushwortb, in the county of Norfolk, and his fellows the 20th day of December, in the 30th year of King Henry the Eighth, by their deed leased to the defendant, to have from the Invention of the Cross then last past for 50 years then next to come, and by virtue hereof he justifies, and gives colour to the plaintiff. The plaintiff by the replication saith, that a long time before the aaid lease, fec. one John Purpet, then master of the said college, and his fellows, were seized of the said manor, whereof the 100 acres are, and at the same time when, &e. and for time immemorial were parcel, in their demesne as of fee; who in the eleventh year of the reign of King Henry the Eighth leased to Edward Besteny the same manor whereof, &c. by the name of their manor of Elveden, and of all their lands, &c. appertaining to the said manor, together with the lands and pastures at Deadmans-grave, except the tenements late Largients, to have from the Invention of the Cross in the year of our Lord 1534, until the end of 60 years then next coming. And shews further, that the said Besteny in 20 H. 8. granted over his estate to the defendant, arid afterwards the said Purpet died, and the said Wyndham was chosen master, &c. and he and his fellows made the lease to the defendant in the same manner as in the bar is alledged, the same defendant then being possessed of the other term. And alledges further that part of the Act of Parliament made in 31 H. 8. which gives the colleges and houses of religion then standing, and which should afterwards come to the King's hands, to him, in the same estate and condition as they then were; and alledges also that part of the Act, which makes leases then made of the possessions of colleges and other houses, which should afterwards come to the King, to be void, if another lease for years at the making thereof was in being, and then not determined, &c. And shews also that the said Wyndham and his fellows surrendered the college to King Henry the Eighth in the 33d year of his reign, by deed enrolled in the Chancery, by virtue of which grant and Act the King was seized of the said manor whereof, &c. in his demesne as of fee, in right of his Crown. And the same King being so seized granted the said manor whereof, &c. to the Earl of Surrey in fee, who conveyed it to the plaintiff in fee, by virtue whereof he entered and was seized, until the defendant did the trespass, &c. And further he avers, that the first lease was in being at the time when the second lease was made, and that the second lease was void by the statute. The defendant by the rejoinder shews the proviso and ordinance in the statute, viz. where a lease for years is made to oue, who then holds the same tenements to farm for a term of years then not expired, that then the same person shall have them, for twenty-one years only from the time of the making of the lease, &c. so that the ancient rent be thereupon reserved, and so that the same lease or leases do not exceed twenty-one years. And saith further, that by virtue of the said proviso and Act, the said lease by him pleaded in bar was good, sufficient, and available in him for twenty one years at least from the time of the making of it, which twenty-one years were not then passed. And upon this rejoinder the plaintiff demurred in law. And it was argued this term by many apprentices, and by all the sergeants at the Bar. And divers exceptions were taken to the replication and to the rejoinder. And it was argued that the replication is not good, because it is there said, that a long time before the making of the lease mentioned in the bar, one John Purpet, then master of the said college, and his fellows were seized of the said manor whereof, &c. in their demesne as of fee, and it is not said, in right of tiie college, and it might be that they were seized in fee in their own proper capacity. For the. masters and fellows of a college have two capacities, viz. to them and their heirs, and to them and their successors, for they are a body not consisting of dead persons, as friars, monks, or nuns, but consisting of such persons as have each by himself capacity to take to him and his heirs; and then the replication shall be taken most strongly against him that pleads it, and that is, the plaintiff, and so it shall be taken that the master and his fellows were seized to them and to their heirs. But if it had been pleaded, that an abbot or prior were seized in fee, this has but one intendment, viz. in right of the house, for an abbot or prior have but one capacity, and that is, to the use, and in right of the houae : And they have not capacity to them and their heirs, and therefore it shall be good without shewing how they were seized, and it shall be taken in jure domus. But master and fellows, and dean and chapter, and such like, have two capacities, as is said before, and therefore it ought to be expressed in what right they were seized, K. B. iv.-6 162 MICH. TERM. 1 & '2 PHILIP AND MARY. IN B. R. 1PLOWDEN. 103. or else it shall be taken most strongly against him that pleads it, and that shall be, to them and their heirs, and if it should be so taken, the sequel of the matter makes against the plaintiff'; for which reason the replication is not good. And aa to this exception, all the Court held, that the exception was not good. For the justices said, when it is pleaded that John Purpet, master of the college, and his fellows were seized in fee, this has but one iiitendment, and that is, in right (a) of the college, (b) For a corporation [103] cannot be intended to be seized to any other's use. But if he had recited their several names, and had called them master and fellows, then it might be intended that they were seized to them and to their heirs; but when the proper name of the master is not recited, but he calls him master, and saith also, his fellows, this is the usual recital of a corporation, and then when he saith, the corporation was seized, non can intend that those who compose the corporation were seized in their own proper capacities, for thence it would follow that the corporation was not seized, where he has alledged in fact that the corporation was seized. But if it was pleaded, that J. S. dean of such a place, or parson of such a church, or prebendary of such a prebend, was seized in fee, this has two intcndments, viz. it might be in his own proper capacity, (for when they purchase to their own proper use they are often named by such names) or it might be that they were seized as dean, parson, or prebendary. But it cannot be so intended in the case of a corporation, for they shall be intended seized in that capacity by which they are named, (a) And it was said, if the husband and wife are vouched, it is a good counterplea to say, that the wife or her ancestors never had any thing, whereof they might make a feoffment, &c. for it shall be intended that they are vouched in right of the wife. And it was also said, that a corporation cannot be seized to another's nse. And all the justices agreed that the said exception was of no weight, and they disallowed it. Another exception was taken to the replication, viz. that the plaintiff' by the replication has shewn the lease made in H H. 8. of the manor, &c. ut supra, except the tenements late Largients, and has not averred that the 100 acres of pasture were not parcel of the exception ; and if they were parcel of the exception, then they did not pass by the same lease made in 11 H. 8. and if they did not pass by that lease, then they did not pass from Besteny to the defendant, and from thence it follows, that the defendant was not possessed of the 100 acres at the time of the new lease taken in 30 H. 8. and if he was not possessed of the 100 acres at the time of the new lease, then the new lease is good. For the plaintiff' intends to avoid the new lease by the statute, because at the time of the making of it the defendant had a former lease in the same thing, and if he had not, then the lease alledged in bar is not answered nor avoided, and therefore it belongs to the plaintiff to convey to the defendant a former lease in the same thing, whereof he was possessed at the time of taking the new lease. And if it shall be taken parcel of the exception, then it did not pass by the first lease; and it shall be intended parcel of the exception, inasmuch as the contrary is not shewn, (b) As in 8 Ed. 4. where there was a general pardon granted...

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