Thornby v Fleetwood et Al'
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 93 E.R. 545
COURTS OF CHANCERY, KING'S BENCH, COMMON PLEAS AND EXCHEQUER
S. C. affirmed, 5 Bro. P. C. (2nd ed.) 374. Referred to, Crozier v. Crozier, 1843. 3 Dr. & Warr. 364.
318. TRINITY TERM, 6 GEO. 545 [318] thornby vers. fleetwood et al'. Int. C. B. de Trin. 9 Annse, Rot. 1842. [S. C. affirmed, 5 Bro. P. C. (2nd ed.) 374. Eeferred to, Crazier v. Crazier, 1843. 3 Dr. & Warr. 364.] Of the effect and consequence of a foreign education in a Popish seminary (1). 10 Mod. 113, 356, 406. 2 Bro. Par. Ca. 203. Com. 207. 11 Mod. 355, S. C. cited in Andrews 104. pedigree. Tho. Ld. Gerard ob. 1617. Johr Gilbert ob. 1623. tin ob. 1673. Button Alice ux. ob. 1640. Rog.Owen. Richard ob. 1679. Charles ob. 1667. Thomas made the Owen. settlement. Digby Rog. Owen ob. 1684. living. Eliz. Dutchess Hamilton. Cha. Will. Philip Joseph ob. sine ob. sine living, ob. sine prole. prole. prole. Frances ux. def. Fleetwood. Upon not guilty in ejectment for lands in the county of Stafford on the demise of the most noble James Duke of Hamilton and Brandon and Elizabeth his wife, on a trial at Bar in the Court of Common Pleas, the jury find this special verdict. That Thomas Lord Gerard had two sons, Gilbert and John, and died 1617. That Gilbert (the elder) had issue Dutton and Alice, and died 1623. That Dutton had issue Charles, who had issue Digby, who had issue Elizabeth now Dutchess of Hamilton, lessor of the plaintiff. That Alice the daughter of Gilbert married Roger Owen, Esquire, and had issue Thomas, who had issue Roger Owen, now living. That John, the younger son of Thomas and brother of Gilbert, had issue Richard, who had issue Charles, William, Philip, Joseph, and Frances wife of the defendant Fleetwood. [319] This being the pedigree, they further find, that Charles the son of Dutton, being then Baron of Gerarda-Bromley, and seised in fee of the premisses in question, by lease and release dated 28 and 29 November 12 Car. 2, conveyed the same to trustees to the following uses. As to part of the lands to the use of himself and the Lady Jane Digby his intended wife, for their joint lives and the survivor of them; remainder to the first and every other sou and sous of that marriage in tail male, remainder to the heirs male of the body of Charles, remainder to the heirs male of the body of Thomas first Lord Gerard, great-grandfather of Lord Charles ; remainder to the right heira of Lord Charles. And as to the residue of the lands not in jointure, to the use of Lord K. B. xxii.-18 546 TRINITY TEEM, 6 GEO. 1 STRANGE, 320. Charles for life, remainder to the first and every other son and sons of that marriage in tail male, with the like remainders over as before. That the marriage soon after took effect, and Lord Charles and Lady Jane, by virtue of the said deed of release and the Statute for Transferring Uses into Possession, being jointly seised of part of the premisses, and Lord Charles sole seised of the residue for life, had issue Digby their only son: and afterwards Lord Charles died, and Lady Jane survived, and became sole seised of her part. That Digby entered into the residue of the lands not in jointure, and was thereof seised prout lex postulat, and also of the jointure lands in remainder expectant upon the death of Lady Jane; and being so seised, died 8 November 1684, leaving issue Elizabeth, now Dutchess of Hamilton, his only daughter and heir. That John the younger son of Thomas, and Richard the son of John, died in the life-time of Digby; and Richard left issue Charles, William, Philip, Joseph, and Frances wife of the defendant Fleetwood. That Charles the son of Richard, as Baron of Gerards-Bromley and heir male of the body of Thomas, entered into the lands whereof Digby died seised, and was thereof seised prout lex postulat, and also of the jointure lands in remainder expectant upon the death of Lady Jane. But the jury further finds that Charles, William, and Philip, sons of the said Richard, in the life-time of Richard and Digby, 1676, (being then infants under the government of their father, and he being then a subject of King Charles the Second, and under his obedience in the kingdom of England) by the said Richard their father were sent, did proceed, go and pass out of the said kingdom of England into parts beyond the seas, out of the obedience of the said King, viz. to St. Omers, and at and in a Popish seminary or college of Jesuits, under the obedience of the King of Spain then being, there to be educated in the Popish religion and superstition used in the Church of Rome ; and did there reside for the space of five years amongst Jesuits and Papists, and during that time were instructed and educated in, and did profess that religion. That Charles in 1681, and Philip in 1693, returned into England. That Charles, after [320] the death of Digby, 22 May 1685, granted the lands to Whitgrave and Jervis, and their heirs, to make them tenants of the freehold till a common recovery was suffered, which was accordingly had and suffered Pasch. 1 Jac. 2, to the use of Charles and his heirs. And then Charles in consideration of 10,0001. portion with Mary his intended wife, grants the same lands to uses which by the death of Charles without issue of that marriage are all extinct except a rent-charge of 10001. per annum to Lady Mary, who is still living. That 27 October 1703, Lady Jane died seised of the jointure lands, and Charles entered and suffered a common recovery, to the use of himself in fee. That William and Joseph, sons of Richard, died without issue in the life-time of Charles their brother. That Charles always from his going beyond sea to the time of his death was and continued a Papist, and died '21 April 1707, without issue, nor was his wife then pregnant. That Philip, brother to Charles, is living, and heir male of the body of Thomas; and always from his going beyond sea was and did continue a Papist, and is so now, using and exercising the said Popish religion. That Mary, widow of the second Charles, is living. That Roger Owen, Esquire, grandson of Alice the daughter of Gilbert, is now living, and the next Proteatant of kin to Philip Gerard. That immediately after the death of the second Charles Lord Gerard, the defendants Fleetwood & Al' entered, and were seised prout lex postulat' upon whose possession the Duke and Dutchess of Hamilton, in right of the dutchess, did enter and were seised in manner aforesaid, and made the lease to the plaintiff, who entered, and was possessed till ejected by the defendants. But whether, upon the whole matter, the re-entry of the defendants be lawful or not, the jury pray the advice of the Court: et si pro quer', pro quer'; et si pro def, pro def. The great question in this case is, whether upon this state of the fact, the statute of 1 Jac. 1, c. 4, will have wrought such a disability, upon account of the foreign education of Charles and Philip, as that in judgment of law the remainder to the heirs male of the body of Thomas, the common ancestor, (the death of Digby without issue male having determined all the former limitations) must be taken to be spent, so as to let in the dutchess, who is the reversioner. If it has, then it is with the plaintiff, otherwise it is with the defendants. The matter in law upon this special verdict was argued three several times at the Bar in C. B. Trin. 11 Annse, by Serjeant Hooper for the plaintiff, and Serjeant Pengelly 1 STRANGE, 321. TRINITY TERM, 6 GEO. 547 pro def; in Mich, following by Serjeant Pratt pro quer', and Serjeant Selby pro def ; and Hil. sequen' by Sir Thomas Powys pro quer', and Serjeant Cheshyre pro def. But the aame persons having argued it again in B. E. upon the writ of error, where the matter was taken up [321] more at large; I shall omit the arguments they made in C. B. and take notice only of the resolution of the Court, which was delivered by Lord Trevor, C.J. Pasch. 12 Ann. Lord Trevor, after stating the heads of the special verdict, went on as follows. The plaintiff's title depends upon the construction of the several Acts of Parliament of 1 Jac. 1, c. 4. 3 Jac. 1, c. 5, and 3 Car. 1, c. 2. For the lessors of the plaintiff must intitle themselves to the lands in question upon some disability wrought by one of those statutes, which disability must enure to make the recovery suffered by the second Lord Charles to be void, and work a determination of the precedent estate-tail, or at least a present cesser of it: and since the estate-tail is not absolutely determined ; as ifc is not, because Philip who is heir in tail is still living, and may have issue who may be inheritable to the estate-tail; therefore the lessors, who claim after that estate ia determined, cannot entitle themselves to enter, unless some or one of those Acts of Parliament give a title to them so to do; for if those recoveries are good, their remainder is barred ; or if they are not good, yet if the estate-tail has in judgment of law continuance, they cannot enter by virtue of that remainder. The only Act insisted upon by the counsel for the plaintiff is the Act of 1 Jac. for the other subsequent Acts cannot intitle them, and the question upon them is only how far they have altered the Act of 1 Jac. Therefore the counsel did endeavour, with a great deal of art and ingenuity, to shew, that the Act of 1 Jac. had so far disabled Lord Charles to take the estate-tail by descent, that the recovery suffered by him was void, and that the same disability being still upon Philip, and there being no person in being who can take the estate-tail, they must be intitled, as if it was actually spent: then as they insisted, that this Act wrought such a disability; so they endeavoured to shew, that this Act is still in force, and not repealed, or any wise altered by the subsequent Acts of 3 Jac. or 3 Car. for I did not observe they insisted (nor was there any foundation so to do) that either of those two later...
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