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A grant by the
King of an of-

void for the time past, is good for the future, and be gins by the grant.

the acts of confirmations, which are not of force to avoid the grant.

2. It was objected against the grant, that the grant was, a temfice from a day pore plenæ ætat 21 annorum ejusd' Comitis, pro & durante toto past, although termino vitæ naturalis dicli Rogeri Comitis Rutl' offic' Seneschal' dominiorum sive maner' nostrorum de M. B. & H. cum vadiis & feod' eisd' offic' ab antiquo debitis & consuet' capiend': and therein the King was deceived, for he cannot grant the office from the day which was past before. To which it was answered, and resolved by the court, that the intent of the grant was, that the patentee should have the fees from the time of the accomplishment of his full age; but without question, although the King cannot grant the office from a day before, yet it shall be (a) good for the life of the patentee to begin by the grant, and void for the time past.

(a) Ley 73.

1. Objection.
(6) Bridgm. 31.

Postea 48. b.
Q. Carthew

$53.

3. It was objected, 1. That by no clause exprest in the patent the patentee can make a (b) deputy. 2. That by law the patentee without special words cannot make a deputy. As to the first, it was observed, that the said letters patent consists of three several grants: 1. Of the office of Constable, &c. Steward, & Capital' Justic' forestæ, &c. which grant has an Habendum, and power to make deputies. 2. Of the office of stewardship of the said three manors, with limitation of the estate for life, and with a clause to receive the fees, &c. but no power to make a deputy. 3. Ac insuper de uberiori gratiá, &c. dedimus, &c. præf' R. com' custod Parci de Nott', &c. habend', gaudend', et exercend' offic' præd (written by such contraction) per se, vel sufficient deputat suum seu deputat suos sufficient a tempore plenæ ætat, &c. durante vitá ipsius Rogeri Comitis, cum vadiis, feod', &c. eidem officio, &c. pertin', aut ratione ejusd', &c. And it was strongly urged, that this last Habendum should have relation only to the premises of the last grant. 1. Because there are, as is aforesaid, three several grants of three several distinct offices: 2. Every one has a distinct limitation of estate; 3. Every one has a distinct grant of the fees and profits. And although the last Habendum is wrote offic' præď, which, as it was urged, may be intended officia prædicta, and then it refers to all the several grants, yet it cannot be so intended, for the three reasons before; and also these words in the same sentence, cum vadiis, feodis, &c. eidem officio wrote at length; aut ratione ejusdem, explain the said words wrote short offic' Plow. 196. b. præd' to be in the singular number, officium prædictum; and the (e) Style 302. (c) office of the premises is to express the certainty of the thing (f) 11 Co. 3. b. Co. Lit. 146. b. given, and need not limit any estate, and the office of the (Å) 6 Co. 39. b. 10 Habendum is to limit the certainty of the estate, and need not re[* 48 a. ] peat the *thing given again, and therewith agrees Wrotesly and Adam's case, Plow. Com. 196. b. So in the case at bar the Habend' shall be, by construction of law, referred to its proper premises; and of that opinion was the whole court. Nota reader, for abbreviations and incongruous (e) writing in grants, these rules, Falsa orthographia non vitiat concessionem; also, falsa (f) grammatica non vitiat concessionem: item, ille numerus et sensus abbreviationum accipiendus est ut concessio non sit inanis. And therefore if the King grants tot ill' maner de D. et C. if it

(c) 2 Roll. 65.

Co. Lit. 6. a.

2 Co. 55. a. 10 Plow. 196. b.

Co. 107. b.

(d) 2 Roll. 65.

Co. Lit. 6. a. 2 Co. 55. a.

Co. 153. a.
Touch. 88.

Rules for ab

breviations and incongruous writings in

grants.

is but one manor in truth, then these abbreviations of tot ill' maner' shall be taken in the singular number totum illud manerium: and if they are in truth two distinct manors, then these abbreviations shall be taken in the plural number tota illa maneria, or otherwise the grant will be void. Vide 32 E. 3. Brief 293. A Scire facias recites that a fine was levied de maneriis de

B. et H. and the conclusion was, quare præd' (a) manerium de B. (a) 8 Cv. 155. et H. ingressus est: and good with averment that in truth B. & a.

(b) Dy. 342. pl.

53. Godb. 415.
Style 302.
2 Co. 17. a.

H. is but one manor. And in 10 H. 4. Brief 497. exception was 16 Vin. 201. B. taken to the writ, because it was wrote with abbreviation Matil where it should be Matild', and yet good, because it was usual to write this name so, quod nota, in a writ which shall abate for false Latin, for he may purchase a new writ at his pleasure, but not a new grant. Vide 17 El. Dy. 342. The four first letters in the name and style of King H. 7. (6) H. R. A. F. were omitted in his letters patent made to Simon Digby, yet adjudged a good grant. And 38 H. 6. 33. a declaration in which it was alledged that W. T. resignavit, &c. in manus J. Episcopi et loci illius Ordinarii, and exception was taken because it was not in manus Johannis Episcopi, for litera J. nihil significat, and yet the declaration adjudged good. And in 4 (c) H. 6. 16. b. between the Duke of York and the Earl of Warwick, the writ was Henr' Dei gratiá Rex Angl', (Dus) Hiber', where it should be Dns, and for this incongruity the writ shall abate; but a grant by such name() Fitz. Brief shall be good enough. So in the conusance of a fine, false Latin, or incongruity shall not hurt the fine, as in the case before, where a fine is levied de maneriis de B. et H. where it is but one manor; and 9 E. 3. a warranty was in the fine, eidem Galfrido et urori suæ, where it should be eisdem, and yet good; and 24 E. 3. 37. a. the fine was pro (d) omnibus servitiis, exactionibus, et dd'is pertinente, where it should be pertinentibus, and therefore challenged, and notwithstanding allowed.

2. It was objected, that by the law without special words a (e) steward cannot make a deputy, because it is an office of knowledge, fidelity, and discretion; *and therefore Fleta lib. 2. cap. 27. describes what person a steward ought to be (f), Provideat tunc sibi Dominus de Seneschallo circumspecto & fideli, viro provido, discreto et gratioso, humili et pudico, et pacifico, et modesto, qui in legibus consuetudinibusque provincia, et officio Senescalcia se cognoscat, et jura domini sui in omnibus tueri affectet, quique subballivos domini in suis erroribus et ambiguis sciat instruere, et docere, quique egenis parcere, et nec prece vel pretio velit a tramite justitia deviare, et perverse judicare. And therefore it was said, that this office is appropriate to the plaintiff: 1. To his person, for it is granted to him only during his life: 2. To his qualities of his mind, s. science, fidelity, and diligence, which are so individually annexed to him that he cannot make a deputy, nor assignee, and therewith agree Sir Henry Nevil's case, Plow. Com. +384. (g) Litt. lib. 3. cap. Condic. 89. Vide 39 H. 6. 33. (h) 11 E. 4. 1. (i) 10 E. 4. 14. b. 7 H. 7. by Frowick (k) Kelw. 44. b. and nothing of that was denied by the court, and yet it was resolved and so adjudged, that the plaintiff might (as this case is) make a (1) deputy. And it was observed, that this word steward is derived from two words, s. (m) stede and ward,

(c) Br. Brief 212. Br. Office

del Court 6.

406.
(e) Co. Lit.
sect. 379.
(f) Co. Lit. 61.
b. Postea 50. a.
(g) Co. Lit.
234. a. b. Lit.

234. a. b. Lit.

97. a.

sect. 379.

2. Objection.

[* 48 b. ] (h) Fitz. Grant de Roy 25. Br. Deputy 9. Br. Patents 65, 66. Br. Officer 28.

Grant 108. Br.

2 Roll. 154. Postea 50. a.

(1) Br. Deputy 8. Br. Patents

64. Perk. sect.

101.

(4) Kelw. 44. b.
Bridg. 31.

Antea 47. b.
Fitzgib. 273.
Lucas 288.
† Plow. 379.
(m) Co. Lit. 61.

a

Resolved: the plaintiff may make a deputy.

estate and in

and is as much as to say, my place, or for me; and therefore he is commonly called a woodward, who has the custody and charge of wood, and so hayward of my hedges et sic de similibus. And Senescallus in Latin has the same signification, as appears in the History of Ingulphus, 463. Inter consuetudines Scaccarii, where the Under-Sheriff, because he exercised the place of the Sheriff himself, is called Seneschallus Vicecomitis; and therefore a great officer within this realm is called, the High Steward, because the King appoints him in divers cases to exercise his place, &c. An assignee of There is a great difference betwixt a deputy (a) and an assignee an office has an of an office; for an assignee is a person who has an estate or terest in the of interest in the office itself, and doth all things in his own name, fice itself, and for whom his grantor shall not answer, unless it is in special does all things in his own cases, but a deputy has no estate or interest in the office, but is but the officer's shadow, and doth all things in the name of the officer himself (B) and nothing in his own name, and for whom his grantor shall (b) answer; and when an officer has power to make assignees, he may implicitè make deputies, for (c) cui licet quod majus est, non debet quod minus est non licere; and by consequence, when an office is granted to one and his heirs (d), thereby he may make an assignee, and by consequence a deputy (c).

name, and generally, his grantor shall

not answer for

him. But a

deputy has no rest in the of fice, and does

estate or inte

all things in the name of

the officer himself, and for him his grantor shall answer.
signees, he has an implied power of making deputies.
(c) 4 Co. 23. a. 5 Co. 7. a. Cawdry's case. (d) Plow. 379. b.

The duties of a Steward.

[* 49 a.]

(e) 4 Co. 33. b.

6 Co. 11. b. 8 Co. 60. a. Godb. 49. 1

Roll. 543. Cr.

El. 792. Cro.
Jac. 582. 4

When an officer has power to make as(a) Perk. sect. 100. (b) Cawley 148.

And in the case at bar the principal parts of the office of steward of a manor is intrare querelas, plac', surrenders, admittances, and fealties, probare testament', et comitť administrať infra maner', &c. and the suitors *are judges of the Court Baron, and the steward for the most part is as prothonotary or register to the (e) suitors, &c. for which manual labour in writing, &c. the steward takes small fees. Now when the Queen grants the office of steward of the said manors to the plaintiff, who is an earl, so that in respect of the smallness of the office in a base court, and of the dignity of the person being an earl, it is implied in law for conveniency that he may make a deputy, for whom the earl ought to answer, so that it cannot be any prejudice to the Queen; and his deputy exercebit officium laboris, as in holding of the Court Baron, and in entering of the pleas, surrenders, &c. and when need shall be in cases of difficulty, or b. concerning the profit of the Queen, the earl exercebit officium fiducia, scientia, et ingenii. Comites dicuntur a comitando+, quia comitantur Regem. Bracton lib. 1. cap. 8. Comites a comitatu, sive a societate nomen sumpserunt; qui etiam dici possunt consules, Reges enim tales sibi associant ad consulendum. And this was the most eminent and supreme dignity from the Conquest, until

Inst. 266. 268.

7 E. 4. 23. a.

21 E. 4. 66. b.

1 Mod. Rep. 171. 12 H. 7.

16, 17. Co. Lit. 58. Davis 59.

+ Salk. 509.

(B) Vid. Parker v. Kett, [1 Salk. 96. 1 L. Raym. 660. 12 Mod. 469.] where it is said, that though an under sheriff must act in the name of the high sheriff, because the writs are directed to the high sheriff and for other particular reasons; yet any other deputy may act,

either in his own name or in the name of his principal.

(c) Qy. if it be an office of trust and confidence, whether the word assigns is not necessary to make the office assignable? Vid. W. Jones, 121. Hob. 170. Dennis v. Loving,, Hardress, 425.

(a) 2 H. Black.
272.6 Co. 52.
b. 53. a. Postea.
Argum. 106.
2 Leon. 174.
Hob. 61.
Styl. 222.
(b) 6 Co. 53. a.
27 H. 8. 22. b.
Co. Lit. 156. e.
F. N. B. 165. a.
Mo

60. a. 68. a. Cr.

F.N. B. 427.c.

Br. Exempt. 3.

15. a. b. 1

11 E. 3. when the Black Prince was created Duke of Cornwall, and those who of ancient times were created earls were of the blood royal. And even to this day, the King in all his appel- Privileges of lations styles them, per nomen charissimi consanguinei nostri, and Peers. for these reasons the law gives them high and great privileges; and therefore their (a) bodies shall not be arrested for debt, trespass, &c. (D) because the law intends that they assist the King with their counsel for the commonwealth; and keep the realm in safety by their prowess and valour. Also for the same reason they shall not be put on (6) juries, although it is for the service of the country. Also if issue is taken, whether the plaintiff or defendant is an earl or not, it shall not be tried by jury (c), but by the King's writ (E). Also the defendant shall not have day of (d) of grace against a lord of the Parliament, because he is intended to attend the public: and all these and many other (e) appear in our books, 48 E. 3. 30. b. Register 179. b. F. N. B. 247. c. 48 Ass. p. 6. 22 Ass. p. 24. 32 H. 6. 27. 35 H. 6. 46. a. So that as when such office descends to an infant, or a man Non compos mentis, or ideot, &c. they of necessity ought to exercise it by deputy; so an earl for the necessity which the law intends, of his attendance upon the King and the public, this stewardship of a base court shall be exercised by his deputy; and therefore it was agreed, that if a parkeship is granted to. an earl, without words to make a deputy, he may keep it by his servants. And in many cases the law allows divers acts for conveniency in respect of the dignity of the person; as if licence is given to a duke to hunt in a park, the law for conveniency gives him such attendants as are requisite to the dignity of his estate. Vide (ƒ) 12 H. 7. 25. b. and (g) 13 H. 7. 10. b. So when a bishop is riding, it is not convenient to his estate and degree to be forced to examine the ability of a clerk, but he ought to attend his convenient leisure, 14 H. 7. 21. 15 H. 7. 7 & 8. a. And of ancient time the earl was (h) Præfectus, seu Præpositus comitatus, for so imports the Saxon word, s. Shirereve, i. the Reve of the Shire, which is as much as to say, Præpositus comit', and had the charge Chall. 18. and custody of the county, and is called by the Romans, Satra- (d) Co. Lit. pas, which word they had from the Persians, and was applied to those who were Præfecti provincia. And Vicecomes est vicem gerens sive Vicarius comitis; and now the sheriff has the whole authority for administration and execution of justice, which the earl had. And now the King by his letters patent commits to 206. See 18 E. 4. 14. b. (f) Br. Tresp. 287. Br. Licence 10. (g) Br. Tresp. 431. (h) Co. Lit. 168. a. Postea 97. b.

Moor 767. 2
Roll. 646. Dy.
314. pl. 98.
Doct. &. Stud.
Jones 153. Br.
Challenge 37.
209. 48 E. 3.
30. b. 48 Ass.
(c) Co. 53. a.
12 Co. 70. 94.
[* 49 b. ]
298, 299, &c.
Inst.50.9 Co.
31. a. 2 Roll.
575. 21 Ass. pl.
24. Co. Lit. 16.
b. Moor 767.

2

95. Carthew

7 Co. 15. a. Calvin's case. Br. Trial 119. 35 H. 6. 46. a.

Fitz. Chal

134, 135. a. 27

H. 8. 22. b. Fitz. Jour. 8. 12. 27 E. 3. 88.

a. 40 E. 3. 31.

a

a.

(e) Cr. Car.

(D) Peeresses, whether by birth or marriage, are also privileged from arrests in civil suits, Countess of Rutland's case, 6 Co. 52. Anon. 1 Vent. 298. Countess of Rivers' case. Styles, 252. This privilege is extended by the act of union with Scotland, 5 Anne, c. 8. to Scotch Peers and Peeresses, and by the act of union with Ireland, 39 & 40 Geo. 3. c. 67. to Irish peers and peeresses. Peers and peeresses are not liable to be attached for the non-payment of money, pursuant to an order of nisi

prius, which has been made a rule of court. Walker v. Earl Grosvenor, 7 T. R. 141. But they are liable to be attached for not obeying the process of the courts. Rex v. Bishop of St. Asaph, 1 Wils. 332. Foley v. Langhorne, Sayer's Rep. 50. Rex v. Earl Ferrers, 1 Burr. 631. And a peeress by marriage, intermarrying with a commoner, has no privilege. Acton's case, 4 Co. 118. Co. Litt. 16 b. Vid. 1 Tidd's Practice, 194. 8th edition.

(E) Vide note (A), vol. 111. p. 362.

(a) Co. Lit.

168. a. 4 Co. 33. a.

(b) Co. Lit.

168. a. 4 Co.

64. 3 Cases in Law, &c. 288,

289.

(e) 8 Co. 105. a. Co. Lit. 70.

the Sheriff (a) custodiam Comitatus, without express words to make a deputy, and yet he who comes in lieu of the earl make one may Subvicecomes, i. his deputy, who in ancient time, as appears before, was called Seneschall vicecom', and in the statute of Westm. 2. c. 39. he is called Subvicecomes, and in 11 H. 7. c. 15. he is called Shire-clerk; and if (b) Vicecomes qui gerit vicem comitis may make a deputy, a fortiori the earl himself may do it; & eo potius in the case at bar, because it concerns private causes in a base court. Also when before the statute of Quia emptores terrarum the King or other Lord, &c. have given lands to a knight to hold of him by knight's service, s. to go with his lord (when the King makes a voyage royal to subdue his enemies) for forty days, well and conveniently arrayed for the war, in this case the law had so much regard to the dignity of knighthood (which is the inferior degree of dignity) that he might find another able person, &c. to go for him with the King to the war; and therewith agrees (c) 7 E. 3. 29. a. b. which two cases, one concerning the public administration and execution of justice in time of peace, and the other the public defence of the realm in time of war, were stronger cases than the case at bar. And it appears in the said letters patent, that it was the intent of the Queen, that the earl should make a deputy by these words, Volentes et firmiter injungendo præcipientes per præsentes omnibus et singulis officiariis, ministris, et subditis nostris, tam infra libertat' quam extra, tenore præsentium, quod eidem Rogero Comiti Rutland et deputato, sive deputatis suis in præmissis omnibus faciend' et.exequend sint auxilientes, assistentes et consulentes prout decet; by which it [* 50 a.] appears that she intended that the *earl should make a deputy in præmissis omnibus: and her grant ought to be taken and expounded, in respect of the dignity of the person secundum in(d) Ant. 48. b. tention' suam. And as to the opinion of Fleta (d), ubi supra, it is further said, cujus officium est curias tenere maner et si per substitutum suum hoc plerunque fecerit, &c. By which it seems, that then stewards of courts might make (e) deputies.

a. Lit. sect. 96.

(e) Lit. sect. $79. Co. Lit. 234. a. b.

The 2d point.

The office in

the case at bar is not forfeited

by non user. When an office

concerns the administration of justice or the commonwealth, and the officer ex

officio or of necessity ought

to attend without any de

mand or re

quest, non

As to the 2. Admitting that the plaintiff can make a deputy, then it was objected, that the non-user thereof is a cause of forfeiture, and to prove that, 2 H. 7. 11. b. in the case of the clerk of a (ƒ) market, &c. was cited. To.which it was answered and resolved, that by non user, the office in the case at bar cannot be forfeited. And for the better understanding of the true reason of it, it is to be known, that there are three (g) causes of forfeiture or seisure of offices for matter in fact, as for abusing, not using, or refusing. Abusing or misusing, as if the marshal, or other gaoler suffer voluntary escapes, it is a forfeiture of their offices, 39 H. 6. 32. b. 5 Ma. Dy. (h) 151. Vide in 22 Ass. p. 34. (i) 11 E. 4. 1. (k) 8 H. 4. 18. 20 E. 4. 5. b. So if a forester or (1) parker fell and cut wood, unless for necessary brush it is a forfeiture of their offices, for destruction of vert is (m) destruction of venison. As to non-user (which concerns the case at

user or non-attendance in Court is a forfeiture of the office; but when the officer need not attend or exercise his office but on demand or request made, non-user is no cause of forfeiture, unless there has been a request and a subsequent neglect. (f) Co. Lit. 233. a. Hardres 48.

(g) Sawyer's Argument in Quo Warranto 15. 5 E. 24. a. Postea 95. b. (h) Kelw. 194. a. b. 193. a. b. &c. 2 Roll. 155. Postea 96. b. Dy. 151. pl. 4. (i) 7 Co. 34. b. 2 Roll. 155. (k) 8 H. 4. 18. a. (4) Co. Lit. 233. a. b. 11 Co. 98. b. Moor 9, 10. 787. (m) Cr. Car. 60.

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