The Bishop of Chester, Plaintiff against John Freeland Defendant
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 80 E.R. 638
COURT OF WARDS, AND OTHER COURTS AT WESTMINSTER
pasch. 1 caeoli regis, eot. 207. the bishop of chester, Plaintiff against john fkeeland Defendant. Replevin. George, Bishop of Chichester, brought a replevin against John Freeland, for taking of three kine iu Alingborn Park in Sussex, the defendant avows the taking, and saith, that Anthony, the predecessor of the plaintiff, was seised of the said park, in right of his bishoprick, and so seised the 2 of February 44 Eliz. By his deed granted a lease of the keeping of the park, and all profits appertaining unto it, to the defendant for his life, et ulterius concessit pro executions officii prtedicti, five marks, with clause of distresse, uria cum, a livery, or 13s. 4d. nee non pasturam pro duobus equis una cum, the windfalls, which grant was confirmed by the dean and chapter, in the life-time of the bishop, and shews further, that this park hath been anciently granted, with this fee of five marks; and for as much as 33s. 4d. was behinde, he avowed the taking, the plaintiff pleads the statute of 1 Eliz. chap. 25. and saith, that this pastureage was a larger fee then was ever granted before, and upon that the avowant demurred. Justice Yelvertou argued for the avowant, and he conceived, that he ought to have return, and the sole question in this case, as he saith is, if this new addition of the pastureage to the grant of the office of the keeper makes all the grant void, for that, that the pasturage is new the office ancient: or, if the law shall make such construction, that for that augmentation it shall be onely void, and shall stand for the other : and he conceived, that this is severed in the intention of the bishop, severed in the òclause of the grant, severall in specie of the five marks, and is not so interjoyned, but that it may be severed from the ancient fee, and distinguished from it; so that in this case, it is good for one, notwithstanding that be void for the other, and he insisted upon two grounds, warranted by The Bishop of Salisburies case: first, the grant of this office is of necessity, and for that being granted with the ancient fee, this is out of the generall restraint of 1 Eliz. chap. 19. by an equitable construction : secondly, when grant which extends to the diminution of a revenue, or impoverishing of a bishop void by this statute, unde sequitur, that if this grant had tended to the diminution of the revenue, or impoverishing the successor, it is not void ; and for the better explanation and exposition of these grounds, he put this diversity ; that whereas the ancient fee is granted with such addition, that the ancient fee is by this confounded in all, or converted into another nature, there the addition makes all void, but when there is another addition which differs specie, and doth not make such confusion, otherwise it is, as if the five marks had been granted with clause of distresse in land, which was usually charged, and other land which was never charged, and onely void to the distresse in the new land; but if no land was anciently charged with distresse, but the person onely, and he made [72] the grant with clause of distresse proviso, that it shall not charge his person, there the grant is void in all, for to have dry rent charge with distresse is in diminution of the revenue, and impoverishing of the .successor, and if the distresse be void, and the parson cannot be charged, then it is ^raiit of an office without fee, which is void, so he said according to the first part of his difference, that where the ancient fee is confounded in all, or converted into LEY, 73. THE BISHOP OF CHESTER V. JOHN FREELAND 639 another nature, there the grant is void, as if the usual fee be five marks, and he grants 51. there all is void; for the five marks is so confounded in the other sum, and made so intire, that you cannot cut between them ; and to the case of Sutler and Bak.er, 3 Coke, 33. b. the gift there of intirenesse of rent, and such grant as he said is so void, which cannot be made good by any intention ; for notwithstanding the grantee release all to the bishop but the five marks, yet it is not made good by that; for void, ab initio, according to reasons given, in The Bishop of Salisburies case, 10 Coke, 62. a. but yet he said that this statute respects the successor onely, and for that he conceived that if in the first case the bishop had granted 51. onely for his life, and five marks after, that there the successor shall not avoid the grant, for no intention appears to charge the successor but to hold him within the bounds of the statute, and for that he said, that if in the principall case he had granted a fee of ten marks every 2 year, that there also it is good ; for if the successor be overcharged one year, it is eased another year, and this case, as he said, is within the reason of The Deem t& Chapter of Wcrrcesters case, 6 Coke 36. A rent was reserved at one feast, which usually payed at four feasts, and yet good, but if the ancient fee, according to the second part of the difference, be turned into another nature, it is also void, as if this office be granted with a fee of so many bushels of corn, or loads of estovers, which amounts to five marks, there it is void, for that, that it is turned into another nature, and the successor may be prejudiced in providing of corn and estovers, &c. And this difference he grounded upon Mounfjoys case, 5 Coke fol. 4. And these cases were put by him upon the said ground and the differences aforesaid. Upon a second argument, it was for that, that this grant of the pastureage pro duobus equis is not so depending upon the other, but that in construction of law it may be severed, as if the five marks be granted with nomine posnge, for that, that the grant of nomine poenas onely impoverished the successor, and not the grant with the ancient fee, and for that, the grant shall be good for the ancient fee, and void for the residue, for the grant of the fee, stat per se, and the other may be severed; and to this purpose he put the case : one annuity was granted with nomine penaj, and for that it was said, if an action be brought, for the nomine poenae against the successor that aid doth not lie, but if annuity be brought there, he shall have aid, which proves that the law considers those, as things severed in their natures, and he remembered the case of Boulton against the Bishop of Chichister, upon which he collected that the bishop had usually granted to two councellors at law, to each of them 40s. per an. and now he granted to one 41. per an. notwithstanding that this be not in diminution of the revenue, nor more chargeable to the successor, yet for that, that it is a great prejudice in another degree, to him is void; for he cannot by any iridentment be so well advised by one councellor as by two; but if the bishop had granted a councellor 40s. and by the last clause had granted to him other 40s. it is void for the last, and good for' the first, and this difference be grounded upon an [73] ancient book, 2 Ed. 2. Feoffments 94. But Boulton in this case did not prevail, for that, that he did not aver that it was the ancient fee : and so he said, if a...
To continue reading
Request your trial
-
Trelawney, Bart., v Bishop of Winchester
...once intimated by the counsel, or the Court, that it was a void grant within 1 Eliz., as it undoubtedly would, had they so understood it. Ley, 71. The grant was of the office of parker, and the successor would avoid it, because more than the ancient salary was assigned him, viz., pasturage ......
-
Roberts v Lord
...ignorant of the premisses, the said lord having speeches with Ecmobridge of the plaintiff, con- 638 THE BISHOP OF CHESTER V. JOHN FREELAND LEY, 71. cerning his honesty and good behaviour, as an attorney in this Court, and concerning the said latitat, the defendant, ex malitia pnecogitata, s......
-
Gee, Bishop of Chichester, against Freedland
...to old offices, except they be necessary; nor can they grant offices in any manner not warranted by usage. Ante, 16. Pout. 557.-Bridg. 26. Ley. 71. 10 Co. 58. Pollexf. 134. 4 Mod. 16. Cro. Jac. 173. Co. Lit. 44. Replevin upon a distress taken in Allingland Park. Upon demurrer the case was, ......