The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CLXXXIV. Wroth and the Countess of Sussex Case. Pasch. 28 Eliz. In the Kings Bench.

* 1.1THe Case was this, In Anno 4 & 5 of King Philip and Queen Mary; A private Act of Parliament was made, by which it was Enacted, That the Mannor of Burnham was assured to the Countess of Sussex for her Ioynture; with a Proviso in the Act, That it should be lawful for the Earl of Sussex to may a Lease or Leases for 21 years; and afterwards, a year before the first Lease

was ended, he made another Lease for 21 years, and this second Lease was to begin and take effect from the end of the first Lease. And if this second Lease were a good Lease within the intent and meaning of the Act, was the Question?

Popham, the Queens Attorny General said, That it was not; 1. Because it was a Lease to begin at a day to come: And, 2. Be∣cause it was made before the first Lease was ended. But he said, It may be Objected, That the Act saith (Lease or Leases,) It is not the sense of the Act, that he might make Leases in the Rever∣sion: but the sense and meaning of the Makers of the Act, was, That he might make Leases in possession, and not Leases in futuro; for if it should be so, then he might make a Lease for 21 years to be∣gin after his death: which should be a great prejudice to the Coun∣tess, and against the meaning of the Act, which was made for her advantage.

The Lord Treasurer, and Sir Walter Mildmay, Knight, have a Commission from the Queen to make Leases of the Queens Lands for 21 years, because the Queen would not be troubled. It was holden, That by virtue of that Commission, they could not make any Leases, but Leases in possession only: But all other Leases which did exceed the Term of 21 years, and in Reversion, were to pass by the hands of the Queen, and her Attorny Gene∣ral, and not by them only by virtue of their said Commission. And if I grant to one power before the Statute to make Leases of my Land for 21 years, he cannot make any Lease, but only Leases in possession; and he cannot Lease upon Lease, for by the same reason, that he might make one Lease to begin in futuro; by the same rea∣son he might make 20 several Leases to begin in futuro; and so frustrate the Intent of the Act. It was Marshall's Case upon the Statute of 1 Eliz. of Leases to be made by Bishops; The Bishop of Canturbury made a Lease to him for one and twenty years; and afterwards he made a Lease unto another for 21 years to begin at the end of the first Lease. And it was holden, That the second Lease was void. But in the great Case which was in the Exchequer-Chamber, upon this Point, There the second Lease was in posses∣sion, and to begin presently, and to run on with the other Lease; and therefore it was adjudged to be good, because the Land was charged with more than 21 years in the whole. And if the Earl had done so here, it had been a good Lease. Wray, Iustice, said, That if the second Lease had been made but two or three years be∣fore the expiration of the first Lease, that then it had been utterly void; but being made but 2 or 3 days or months before the ex∣piration of the first Lease, he doubted, If it should be void, or not. The Statute of 32 H. 8. makes Leases for 21 years, to be good from the day of the date thereof: And a Lease was made to begin at a day to come: And yet it was holden by two of the Iustices in the Court of Common Pleas, That it was a good Lease: And by two other Iustices of the same Court, it was holden, the Lease was

not good. And Clench, Iustice, said, That there was no diffe∣rence, If it be by one Deed, or by two Deeds: And therefore he held, That if the Earl had made a Lease for 21 years, and with∣in a year another, the same had been void, if it were by one Deed, or two Deeds, for that he did exceed his authority. And he said, In the principal Case, If there had not been a Proviso, he could not have made a Lease; and therefore the Proviso which gave a power to make a Lease for 21 years, should be taken strictly. There was a Case of the Lord Marquess of, &c. that it should be lawful for him to make Leases for 21 years by a Statute; And he made ano∣ther Lease to begin after the end or expiration of the first Lease; and it was doubted, Whether it were a good Lease or not, because he had not made any Lease before: But if both were made by force of the Statute; all held, That the second Lease was void.

At another day, the Case was argued by Daniel, for the Lease in Reversion to begin at a day to come. And he said, That in a Sta∣tute the words alone are not to be considered, but also the mean∣ing of the parties, and they are not to be severed. Also he said, That a Statute-Law is to be expounded by the Common-Law: And by the Common-Law, If one giveth power unto another to make Leases of his Lands, he might make Leases in Reversion, be∣cause an Authority is to be taken most beneficially for them for whose cause it was given. So that if a Man grant an authority to another to make Estates of his Lands, by those general words he may make Leases for years or for life, Gifts in tail, Feoffments, or any Estates whatsoever; If one gives a Commission to another to make Leases for one and twenty years of his Lands, he may make a Lease in Reversion; and so it was holden in the Dutchy in the Case between Alcock and Hicks. Also he said, That this Lease was a good Lease by the Statute-Law: For the Statute of Rich. 3. gives authority to Cestuy que Use, that he may make Estates in Reversion. The Statute of 27 H. 8. which gives au∣thority to the Chief Officer of the Court of Surveyors to make Leases, if it had stayed there, he might have made Leases in Rever∣sion; Therefore the Statute goes further, and saith, Proviso, That he shall not make a Lease in Reversion. See 19 Eliz. Dyer, 357. The Statute of 35 H. 8. of Leases to be made by the Hus∣bands of the Lands of their Wives, By the general words of the Statute they might have made Leases in Reversion; And there∣fore the Case there was, That where the Husband had made a Lease of his Wives Lands for 21 years; and afterwards he made another Lease for 21 years, to begin after the Lease in esse: It was conceived, That such a Lease was good, because in the Act there was no restraint of Leases in Reversion, as there is in the Statute of 32 H. 8.

In all Cases of Statutes which are with Provisoes, the Law upon them shall be taken generally, but in such Particulars only as are restrained by the Proviso; and here in this Case, the Pro∣viso

went to the Ancient Rent to be reserved, and that the Coun∣tess should have remedy for the said Rent; and therefore it shall be construed at large as unto all other points which are not re∣strained by the Proviso.

As if the Wife be within age, and she and her Husband joyn in a Lease, yet such a Lease shall be good, by the Statute of 32 H. 8. because the Law is general, and doth not restrain these imperfecti∣ons expresly. So if a Feoffment in Fee be made with warranty, Pro∣viso, That he shall not vouch; yet that restraint goes to the Voucher only, and he is at large to Rebutt, or to have a Warrantia Char∣tae. A Lease is made for life, Proviso, That he shall not do volun∣tary Waste; he is at large to do any other Waste: Otherwise it would be, if there were no Proviso,; and there a Proviso makes the precedent words to be expounded more liberally. The Stat. of 33 H. 8. Cap. 39. of Surveyors, which giveth authority to the Chief Officer to set, or let for 21 years, he might have made a Lease for 21 years, if by the Proviso he had not been restrained; and yet the words are put singularly: But the words of this Act, upon which the Case in Question doth arise, are Lease or Leases; and therefore it shall be expounded most liberally for the party.

Again, he argued, That as to the intent of the Statute, that this Lease was within the meaning of it; for the meaning is to be collected out of the words, and shall not be drawn to any private construction or intent against the words, which should be here, if this Lease should be avoided: For by such construction and exposition, the Earl, his Heirs, Executors, &c. should be prejudiced, and the Countess only should be benefited. Also by this Act remedy is gi∣ven to the Countess against such Lessees, that she should have the Rent, by Debt, or Distress; as if she had been party or privy: therefore it is reason, via versa, that the Lessees have remedy against her for their Leases. Also he said, That the same remedy should be for them against the Countess, as they had against the Earl himself if he had been alive; and therefore they should have such remedy against the Countess, as they had against the Earl. And further he said, That the Statute is to be expounded according to the words where such an Exposition is not rigorous, nor mischievous: And private Laws are to be expounded by the letter, and strictly, as the Deed of the party shall be. As 14 E 4. 1. Br. Parliament, 61. A Particular Act was made, That the Chancellor calling unto him one Iustice, might award a Subpena between A. and B. and end the matter betwixt them: And there, by all the Iustices, except Littleton, He shall not award a general Sub∣pena, but a special Subpena, making mention of the Act; for he shall pursue the particular Act strictly: But an Act which is for the common profit, shall be expounded largely. Also a Statute shall not be expounded largely, or by Equity to overthrow an Estate. As the Statute which gives, That if the Woman doth consent to the Ravisher, that the next Heir shall enter: If the Daughter en∣treth; and after a Son is born; he shall not put out the Daughter,

because the Statute shall not be drawn to a private intent, to the overthrow of the Estate before lawfully vested in the Daughter: And so in the principal Case, the Statute shall not be drawn to a pri∣vate intent for the benefit of the Countess, to overthrow the Lease for years. And it is not like to the Case which hath been put, That if he maketh a Lease for 20 years, and so for 20 years; that the same is not good by the Statute; For I will agree, That that is a Lease for 40 years. Egerton, Sollicitor, contrary; First, as to the word (Demise, or Dimission,) it is nothing else but the letting of the Land, and so (Lease) comes from (Laiser) a French word; and such a Lease it self, for he hath not left the Land. As if I say to you, I Let you my Lands for 21 years; When shall you have my Land? Not at a day to come, but presently. If I sell you Land, and Covenant, that it is discharged of another Lease for 21 years, and there is a Lease to Commence after the Lease for 21 years, I have broken my Covenant. If I be bounden to make you a Lease for 21 years, and I say to you, I make you a Lease to begin 200 years hence, I have forfeited my Bond. If the Custom of the Mannor be, that Dominus pro tempore may make a Lease for 21 years, may he make a Lease to begin at a day to come? Truly no, if there be not a special Custom so to do. If I give authority to my Steward to make Leases of my Lands for 21 years, he cannot make a Lease to begin 100 years after. As to the Case of the Dutchy, there the Commission was, That he might make Leases according to his discretion, therefore there he might make what Lease he pleaseth. As to the Statute which enableth Cestuy que Use, of 1 R. 3. that Case is not like to our Case, for that Act is, All Feoffments, Estates, &c. therefore he might make such Lea∣ses without doubt. And if I devise, That my Executors shall make Leases of my Lands for 21 years, they cannot make Leases to begin at a day to come; and if they do not make the Leases within convenient time, the Heir shall enter, and avoid their autho∣rity.

And Statute-Law shall have such an Exposition, as that the precise time ought to be observed; As the Statute of 14 E. 3. Rastal Voucher, 8. If the Tenant voucheth to warranty a dead Man, and the Demandants will aver, That the Vouchee is dead, or that there is no such, their Averment shall be received without more delay. Vpon this Statute the Case was, 21 E. 3. Where∣one was vouched to warranty, and the Summoneas ad Warranti∣zandum issued, and then came the Demandant and would have averred, That the Vouchee was dead; And the Tenant said, That he ought to have averred that upon the voucher to warranty, and that now he had surceased his time: And the Demandant said, That the Statute did not bind him to that, nor did prescribe any time, but left the same generally. Yet it was the Opinion of the whole Court, That he should have the Averment at the time of the

Voucher, or not at all. So the Statute of 11 H 7. Cap. 20. If a Woman who hath a Ioynture for life or in tail, suffereth a Re∣covery, and afterwards the Issue in tail releaseth all his Right by Fine, and dieth, his Issue may enter; for the assent ought to be by Voucher in the same Action, or the like: for if there be a mean instant between the Recovery and the Assent, then any assent after is nothing to the purpose; for the Recovery being once void by the Statute, cannot be made good by an assent afterwards. See Doctor and Student, 54. And yet the Statute is, Provided, That the Statute shall not extend to any such Recovery, &c. if the next Heir be assenting to the same Recovery, &c. so as the same assent, or agreement be of Record, or inrolled. And it doth not say, That the Assent should be at one time, or at another. But to come to Leases upon Statutes. Before the Statute of 2 E. 6. Cap. 8. If Leases had not been found by Offices, the Lessees should have been ousted, and put to their traverse: But put Case, that after that Statute, a Lease made to begin at a day to come, were not found by Office, should it be helped by that Statute? No truly; And so it is holden in the Court of Wards at this day; and the Lord Chief Iustice of England held so in his Reading at Lincolns-Inn.

The Statute of 1 Eliz. of Leases to be made by Bishops, is, That Leases other than for 21 years from the time that they be∣gin; that is, when they may take effect as Deeds, and not when they shall take effect to be executed; For so they might make Lea∣ses infinite, &c. It was adjourned, &c.

Notes

• * 1.1

  Co. 6. Rep. 33. 1 Len. 35. 4 Len. 61.