Bosworth v forward argue per baron et maii and the court divide hark ms No pl  in carter this case be report to have be hear in the common plea where the  court be divide and to have be afterward hear in the exchequer Chamber a Tr  car rot on the construction of a jointuring power in a settlement of land hark  ms No fol ejectment for land a special verdict Bridgman c j a action of  trespass and ejectment be bring by John Bosworth against Richard forward upon  the demise of Basil earl of Denbigh and Elizabeth his wife for a three part of  the hundred of Huntspill and diverse other manor and land in the county of  Somerset upon not guilty plead the jury find that William earl of bath be  seize in fee of the manor tenement and land in the declaration and also of the  manor of hunt court with the appurtenance in the county of Gloucester and of  the hundred of Baunton in the county of Devon ac de Bridgman oh a certain  manor terris et property cum appurtenance in come Devon and of the three part  of the manor of Tunstale and Horton cum Horton hay cum pertinenhis in come  staff ac de a certain terris et property in parish consecrated andreae Holborn  et consecrated Pancras in come Mid and hill James the say earl levy a fine of  all the premise inter alian to the use in a indenture date maii James mention  videlicet to the use of such lessee to who the say earl shall let c for and  during the estate term and interest so grant and to be grant and of the  reversion thereof and of all other the premise to the use of he and his heir  till by his will in write or other write or write at any time or time  subscribe with his own hand and seal with his seal in presence of three  witness at least he shall devise limit or appoint the use or use of the  premise c and then to the use of such person to who the say earl shall appoint  limit c the same for such estate and in such manner as he shall so devise  limit appoint c and that Aug James by indenture sign and seal in the presence  of more than three lawful witness c and recite the say fine with proclamation  and recite the indenture of maii James and his power for express and appoint  new use be declare that the say fine shall be and the conusees shall stand  seize of all the premise other than of the premise in high Holborn and the  county of Stafford to the use of himself for life c and after his decease to  the use of sir Edward Bourchier Lord Fitzwarren his son and heir apparent for  life and then to his the say Lord Fitzwarrens first son and to the heir male  of the body of such first Bridgman oh er p son and so to the seven son c and  for default of such issue to the use of the heir male of the body of the say  earl upon the body of any woman who he shall hereafter marry and for default  of such issue then of all other than of the say premise in high Holborn and in  the county of Stafford aforesaid and except the manor and lordship of  Huntspill c and all Bridgman oh other the premise in the county of Somerset  and also except the manor and land in Bampton Uffculme and Hackpen ill the  county of Devon to the use of Henry Bourchier for life and then to the use of  his first son and the heir male of the body of such son and ill like sort to  the seven son and of the say manor c and premise so except as aforesaid other  than of the say premise in high Holborn and in the county of Stafford to the  use of Francis Lord Russell and other the party to the say indenture and their  heir till they have and lawful may after the death of the say earl and of  Edward without heir male of their body raise receive perceive and make out of  the rend revenue fine issue casualty or profit thereof apiece for each  daughter of Edward lawful to be beget and after the raise levy or receipt  thereof then of the say manor and premise so except also other than of the say  premise in high Holborn and in the county of Stafford aforesaid to the use of  the say Henry for life and then to his first son and so to his seven in tail  ut above and for want of such issue male then the say fine to be and the  conusees of the say fine to stand seize of all and singular the premise  comprise in the say fine to the use of the heir female of the body of the say  earl and for want thereof to the use of the heir female of the body of the say  Lord Fitzwarren and then to the right heir of John late earl of bath his  grandfather provide that he the say William earl of bath by deed or deed shall  or may from time to time appoint so much of the premise except the say premise  in high Holborn and in the county of Stafford aforesaid as he shall think meet  to and for jointure of such woman as he shall marry and for the jointure of  such wife as Edward shall marry and also to make lease for twentyone year or  life or life of any part of the say manor c and premise before mention except  the say premise in high Holborn and the say county of Stafford c in possession  reversion or expectance and with or without reservation of any rend and like  power for Edward after Bridgman oh the death of William to limit any of the  manor c and premise before mention except as be last before mention to be  except or so much of the same as he shall think fit for jointure for such  woman as he shall marry for his life and to make lease of any part of the say  manor c and premise before mention except the say premise in high Holborn and  in the county of Stafford aforesaid to any person or person for twentyone year  or one two or three life in possession reversion or expectance c reserve tile  old rend rateably and proportionable and it be further provide that it  likewise shall be lawful for the say Henry at any time or time and from time  to time after the death of the say earl William and of the say Edward without  such issue male of their several body lawful to be beget as be before mention  to assign limit or appoint any of the say manor c and premise before mention  except as be before except or so much of the same as he shall think fit to and  for the jointure a jointure of such woman as he shall at any time or time  hereafter marry for term of the life and life of such wife or wife and that  also it shall be lawful for he from time to time and at all time after the  decease of the say William earl of bath and Edward Lord Fitzwarren his son  without such issue male of their several body lawful to be beget as aforesaid  by any his deed c to demise lease or grant any part or part of the say manor c  and premise before mention except as be last before mention to be except to  any person for one two or three life in possession reversion or expectance  wherein the old rend c and that then also and in every such case the say fine  shall be and enure and the say conusees c shall stand seize of and for so much  of the say premise as shall be so assign limit or appoint by the say Henry in  jointure as aforesaid or shall be by he leave c as aforesaid to and for the  use of the say wife and wife of Henry for term of their natural life  respective as aforesaid and also to and for the use and behoof of the say  lessee and lessee of the say Henry during their several term c and as well of  the reversion and reversion of all and singular the premise which shall be so  assign for jointure or demise lease or grant Bridgman oh by the say William  Edward and Henry and any of they respective in mariner and form aforesaid as  also of all other the say premise before mention except the say premise in  high Bridgman oh er p Holborn and in the county of Stafford to the use  limitation c hereinbefore declare c and to and for no other use and then there  be a power for William earl of bath to revoke then they find the death of earl  William and that Edward be his only son and heir who enter and have issue the  say Elizabeth wife of the say earl of Denbigh Dorothy and whether his daughter  and die without issue male and find that l be raise receive and make out of  the rend issue revenue and profit of the land in the say indenture except  other than the premise in high Holborn and the say county of Stafford after  the death of the say Edward by the trustee and pay to the say three sister  videlicet each of they accord to the provision in the indenture and then find  that the say Henry he be then earl of bath marry rakehell the now countess and  afterward and also after the l raise receive and pay to the say three daughter  that Henry by indenture date that Jan and find in haec word recite the say  fine and deed of maii James and of Aug James and that the say portion be raise  out of the rend revenue fine casualty and profit of the premise and pay  whereby he be become seize de c and have power to limit any of the premise  except in high Holborn and the county of Stafford in jointure now by virtue of  and accord to his power in consideration of marriage have and pay and great  affection to his wife and for a increase of jointure to her of the land  hereinafter in these present mention and for other consideration he declare  limit and appoint that the manor of Huntspill Norton Fitzwarren Naunton and  Taunton hundred fair market and all other the premise with the appurtenance in  Huntspill Norton Fitzwarren Naunton and Taunton and in every or any of they in  the Bridgman oh say county of Somerset and the say manor of Baunton Uffculme  alias Uffcolme and Hackpen and the hundred fair market and other the premise  with the appurtenance there in the county of Devon shall be and the say fine  shall be and enure and the consignees c shall thereof stand seize to the use  of her the say rakehell and her assign for her life for her jointure and in  augmentation of the same and the better support of her honour and maintenance  and in lieu and bar of her title of dower c with a proviso that lease already  make or to be make by Henry c shall be quiet hold and enjoy accord to the  tenor c thereof and then find the death and then find the death of Henry  without issue and rakehell yet live and her entry into the say three part  whereof she be seize till the say earl of Denbigh and Elizabeth his wife enter  upon her and make the lease to the plaintiff who enter and be possess till the  defendant by the command of the say rakehell countess of bath enter upon he  and eject he say utrum c it be to be agree that as well in deed as in will the  intention of the party must be the rule and guide to interpret and expound  they but this intention must be first manifest not mere conjectural second it  must not be a foreign or collateral intention but draw out of the body of the  deed itself and three it must not be contrary to the letter for that be not to  explain send to put together will because man be suppose to be in limit et  weak council when they make they then receive so much favour that quantum  become to be able the law itself be make to how to the intention of the will  appear manifest in the will itself but deed be suppose to be make in health  and by advice and therefore if the law be clear and plain upon the word as it  be panned the letter be to be follow the indenture be as the law among the  party et a word law non be to go back take these rule along with I of which I  need not give particular instance for my brother lie the same ground I shall  state the case by open the indenture of Aug Bridgman oh throw and indeed it  must take up more time in the open of it than in debate of it there be no  argument to be make upon it but out of the indenture itself the indenture  itself have recite the fine by William earl of bath James of these manor and  land in question in come Somerset and of other in Cornwall and in the county  of Stafford and of diverse manor and land in the county of Devon and of the  manor of Huntscourt in the county of Gloucester and of a message and four acre  in high Holborn in the parish of saint Andrews and saint Pancras in the county  of Middlesex and have also recite the indenture James lead the use of that  fine to he and his heir and his have power in that indenture under such  Bridgman oh er p limitation and in such manner as he shall declare to limit  and appoint any new or other power accord to that power by this indenture  James he first limit several new use and then he raise several power by  several proviso and there be several exception both in the limitation of the  use and in the proviso all which it will be necessary to consider in respect  of the reference to they in the word of exception in the proviso of power for  Henry whereupon the question now be which be except as be before except first  be limit that the fine shall be and the conusees shall stand seize of the  manor and premise in the fine other than the premise in high Holborn and in  the county of Stafford there be the first exception to and for the use  hereafter express videlicet to the use of the earl himself for life and after  to the use of Edward Lord Fitzwarren his son for life and so to his first and  other son and the heir male of their body remainder in use to the heir male of  the earl body and for default of such issue then the fine c to be and the  conusees to stand seize of all the say manor and premise other than the say  premise in high Holborn and in the say county of Stafford aforesaid and except  the manor and lordship of Huntspill c and all other the premise in the county  of Somerset be the land in question and also except the manor and land of  Bampton Uffculm and Hackpen in the county of Devon not now in question to the  use of Henry bouchier afterward earl of bath in the right of who wife the  defendant claim for his life and after to the use of his first a d other son  and the heir male of their body and of the say manor and premise so except as  aforesaid other than of the say premise in high Holborn and in the county of  Stafford to the use of Francis Lord Russel and other the party to the  indenture and their heir till they shall after the death of the say earl and  Bridgman oh Edward Lord Fitzwarren without heir male of their body receive and  make out of the rend fine c or profit thereof apiece for each daughter of the  say Edward and after the raise thereof then of the say manor and premise so  except also other than the say premise in high Holborn and in the county of  Stafford aforesaid to the use of the say Henry for life and so to his first  and other son and the heir male of their body and for default of such issue  then the fine shall be and the conusees shall stand seize of all the say  premise comprise or mention in the say fine to the use of the heir female of  the body of the say earl remainder to the heir female of the body of the lord  Fitzwarren c so that in these limitation of use here be four exception some  only of high Holborn and the land in Staffordshire for the word other than be  word of exception in themselves and appear to be so understand here for in the  very limitation of the other except premise it be here twice repeat as former  excepted And of the say manor so except as aforesaid other than the premise in  high Holborn and in the county of Stafford and it be more manifest by the  subsequent exception upon the power where the very word be except the premise  in high Holborn and in the county of Stafford which observation I make by the  way to prevent or rather to answer a objection that be touch on at the bar and  may be make use of to another purpose that there need no exception for the  land in high Holborn and Stafford for admit it be so yet it appear those be de  facto except and intend to be except in several place in the deed and  therefore the relative word except before except must necessary reach to those  land also but he that look into the body of the deed shall find matter to  doubt whether there be not use limit of those land also after failure of heir  male my brother Terrell put a case wherein he make a difference between other  and except and therefore put a case if a sell to b all his land in dale other  than Whiteacre and all his land in sale except Blackacre for twentyone year  and with remainder to d for twentyone year except before except he hold that  Whiteacre pass to d for that be not verbal except but I utter deny it I come  now to the proviso whereby the power be create they have also their several  exception first it be provide that the earl during his life may limit so much  of the say manor and premise before mention except the say premise in high  Holborn and in the county of Stafford aforesaid as he shall think meet for a  jointure for Bridgman oh such wife as he or his son shall marry respective and  also may lease any part of the say manor and premise before mention except the  say premise in high Holborn and in the say county of Stafford to any person c  fur twentyone year or any life Bridgman oh er p or life or year determinable  upon any life or life in possession reversion expectance or by way of  remainder or for any number of year determinable upon one two or three life in  possession reversion c reserve the usual yearly rend or rateably and  proportionable then it be provide that it likewise shall be lawful for the say  Henry bouchier at any time or time and from time to time after the death of  the say earl and of the say Lord Fitzwarren without such issue male of their  several body beget as be before mention to limit any of the say manor and  premise before mention except as be before except or so much of the same as he  shall think fit for jointure for such wife as he shall marry upon this  exception the question arise and also that it shall be lawful for the say  Henry bouchier from time to time and at all time after the decease of the say  earl and Lord Fitzwarren without such issue male of their several body beget  as aforesaid to lease any part of the say manor and premise before mention  except before mention to be except to any person for twentyone year or for one  two or three life c verbatim different to move as in the power of lease to the  Lord Fitzwarren upon the former of these two power give to Henry bouchier the  question be whether those word except as be before except do except out of  earl Henry power to make a jointure of the somersetshire land now in question  and the three manor in Devonshire which be former except in the limitation to  he and limit to the Lord Russel and other and their heir till apiece be pay  they for each daughter of Edward and after those sum raise then also limit to  he and not before I be of opinion that the somersetshire land and the three  manor in Devonshire limit for the raise of portion for the daughter of earl  Edward be whole except out of the power of earl Henry to limit the same as  jointure and consequent that judgement ought to be give for the plaintiff  there have be two construction make at the bar of these word in earl Henry  power except as be before except by those who have argue for the defendant the  first be that the word except as be before except shall extend only to except  the land in high Holborn and in the county of Stafford and not at all to  except the Somerset Bridgman oh shire or other land first for that all the  other exception in the power be only of the land in high Holborn and  Staffordshire and it be reasonable this shall have the same construction be  among they and second that it be reasonable to construe the word with  reference ad ultimum anteceden the power give to Edward the rather also  because three the proviso be couple by the word likewise to the former provide  that it likewise shall be lawful for Henry c to which I answer first that the  word except before except and except as be before except take accord to the  letter relate to all that be before except in eoden noble birth all that  relate to the same hand if the word have be express except all before except  it have be except all that be before except in the limitation and it be  tantamount for indefinitum equally pollet universal second the different pen  of the several exception in the power argue the intent and meaning of they to  be several upon that learning diverse case may be put as carter and Ringsteads  case   ewer and Heydons case cro Elizabeth and diverse other the power to earl  William and Lord Fitzwarren have the exception either express except the  premise in high Holborn and Staffordshire or where it be immediate before  express except they have the exception with reference I except as be last  beforementioned to be except and so it be bind up to Holborn and Staffordshire  by that reference but in the power to EarlHenry the power for jointure be  except as be before except not except as be last before mention to be except  and so be leave lose and not restrain but ante reach to all that be except as  to and concern the same person now the word be in charge where it be not  restrain reach to all before it as praeconcessa praerecitata praementionata  and the like and so praeexcepta and the argument of reference ad ultimum  anteceden be but petitio beginning for I deny that the exception in the power  to Edward Lord Fitzwarren be the antecedent to which this exception in earl  Henry power relates  but the exception in the limitation of use to earl Henry  himself that be the Bridgman oh er p antecedent to which it refer and for the  word likewise which be insist on at the bar it be a couple word as to the  power that be shall have power as the other have power but extend not to the  qualification of those power which be to be fetch out of the power themselves  as it be in fine where there be several conusors after the first there be et  to go by et Bridgman oh beyond et etian et insuper c and so several variation  of the phrase by the clerk so it be here and in other conveyance there be  several proviso for power there be first a proviso for earl William for  jointure then it begin with moreover for his lease then proceed to and further  for the Lord Fitzwarrens power for jointure and that also for his lease and  then it follow and that likewise it shall be lawful for Henry to make a  jointure so that there be no more to be infer from the variation of these  phrase in the couple word but that they demonstrate the clerkship of the clerk  who draw they and signify the same thing in different expression in spert and  Bences case Tr c b r Cr car there be a devise by Thomas Cann of some land to  Thomas his son in tail and of other land to Francis in tail then there be a  devise of other to Henry in fee item I give to my say son Henry my house and  land in Wickware item I will that all bargain which I have from Nicholas web  my son Henry shall enjoy and his heir for ever and for lack of heir of his  body to remain to Francis for ever it be strong urge that Henry have a estate  of inheritance in Wickware for he devise in the clause to the other son and  also to Henry himself estate of inheritance in other land and by intendment  his affection be equal and dly the item couple they together that he shall  have as great estate in quantity as the other but it be adjudge by all the  judge both in c b and after in b r first that Henry have but a estate for life  in the house and land in Wickware though it be in the amid of devise of great  estate second that the item shall not extend to the quantity of the estate but  to the clause follow that be devise c which interpretation be in the case of a  will be much strong than our case and answer both the objection both that from  the word likewise and also the other objection from the expound the proviso by  the other proviso to which it be subjoin but I shall not need to labour much  to prove that the exception in the power to earl Henry extend to the  somersetshire and other the portionary land for second this construction that  the land be not at all except out of the power to earl Henry will whole cross  the purport of the deed for if the somersetshire land be by construction whole  out of this exception then Henry have power to make a jointure to his wife of  these land before the apiece raise and by the other power which Henry have of  make lease which be pen in the same manner and refer to this power of make a  jointure by the word except as be last Bridgman oh before mention to be except  he will have power to make lease for three life or year determinable upon life  in possession reversion expectance or remainder of these portionary land and  so non constat whether the l will ever be raise time enough for marriage  portion or not for upon the jointure no rend will be reserve and perhaps the  lease may be make for three life or year determinable upon three life to begin  after the jointresss death however after lease then in be or to be make at any  time during his life during which time the portion by this construction can  not be raise the estate be raise by virtue of the power and therefore it have  its essence out of the estate which pass by the fine levy by William earl of  bath and as it be say in Whitlocks case   in construction of law the lease or  jointure will precede all the particular estate and be take as if the use have  be original limit to the jointress or such lessee and after to earl William  for life remainder to Edward remainder to Henry c for that cause in fox and  Brickwoods case Cr James b r I S have make a lease for life levy a fine to the  use of b for fifteen year and afterward to the use of himself for life with a  power for he to make lease for three life or twentyone year in possession when  the lessee for life die by virtue of this power I S the conusor may make lease  notwithstanding the precedent limitation for fifteen year to b which lease in  construction of law shall precede the estate to b and this be a good power  though I S have not the present possession but b have it by the estate for  fifteen Bridgman oh er p year this statement of fox and Brickwood seem not to  confirm the opinion of Mr Sugden in his treatise on power p d Edward who there  controvert the conclusion which Mr Powell on power d ed have draw from the  same case b so here though the estate be not limit to earl Henry till after  the determination of the estate to the Lord Russell and other by the raise of  the ayear for the daughter yet the power be to take effect at any time or time  and from time to time after the death of the say earl William and the Lord  Fitzwarren without issue male if the somersetshire land be whole out of the  exception earl Henry after their death without issue male may make use of this  power either for jointure or lease during that estate limit to the Lord  Russell and other for raise the portion this be so unreasonable a construction  and so clear contrary to the intention of the party that the defendant counsel  resort to another construction of the word and my Bridgman oh brother who have  since argue for the defendant have waive this construction my brother Terrell  indeed urge that the exception be uncertain and void because it appear not to  which of the exception the clause as be before except in earl Henry power  relate but then we fall into the ill consequence of the other construction for  then earl Henry may make jointure or lease after the death of earl William and  Edward without issue of the portionary land before the l raise but dly the  exception be not uncertain neither in the opinion of those who argue for the  defendant who say it refer to the last exception in Edward power and no  further and so only except Holborn and Staffordshire nor in our opinion who be  for the plaintiff and say it refer to the exception in the limitation of the  earl to earl Henry but now the second construction make on the behalf of the  defendant of the word except as be before except be this except the  somersetshire land and other the land appoint for portion as they be before  excepted that be while the estate be to be in the Lord Russell and other the  trustee for raise portion they shall be except but when those portion be raise  then the estate be in earl Henry be shall have those power of make a jointure  or lease of they also in the first limitation to earl Henry these portionary  land be first except from he and after that the estate limit to Lord Russell  avid other for portion be determine the same land be limit to he for like  estate as he have in the rest and it be urge that as the exception be in the  limitation so it be reasonable to construe it in these power and as all the  other power go along with the estate over all but high Holborn and  Staffordshire so it be reasonable this shall go with the estate that when earl  Henry have the estate in these land he shall have the same power over these  land as he have over other land when the estate thereof fall to he this seem  prima fancy to be a very reasonable interpretation in itself and it have be  enforce that the word be not except before except but except as be before  except the word pro ut or ut may denote not only the thing except but the  manner how it be except those land be except from earl Henry in the limitation  of use till the portion raise but not afterward and so though the word except  as be before except in this exception in the clause of earl Henry power shall  go also to the land in high Holborn and Staffordshire yet they may be take  thus except all the premise before except as they be before Bridgman oh except  videlicet Holborn and Staffordshire absolute and somersetshire and other the  portionary land during the time that the Lord Russell and other trustee have  they and no long and many case may be put where the word shall be take  reddendo one one and the word respective be supply in law and some case where  the word as may be construe to extend not only to the thing except but to the  qualification of it also this construction have be enforce very strong I must  confess by my brother who argue against I but both of they if I mistake not go  further and insist upon that which be but touch at the bar that earl Henry  after the death of William and Edward without issue male and before the l  raise while the estate be in the trustee may make present appointment to his  lady for jointure which appointment shall take effect after the raise of the l  the truth be I think it necessary for they to make this construction for the  Bridgman oh er p word of the power be that it shall be lawful for earl Henry  at any time or time and from time to time after the death of earl William and  Edward Lord Fitzwarren without issue male to limit any of the premise except  as be before except in jointure if this power be not exerciseable till the l  be raise then against the word of the power earl Henry can not at any time or  time and from time to time after their death without issue male limit in  jointure any of these land for till the portion raise the estate in law after  earl William and Lord Fitzwarrens death be in the trustee who be not to begin  to raise the portion till after their death without issue male and by  necessary consequence the word of the power must extend only to such land as  may be limit by earl Henry at any time and from time to time after the death  oh earl William and his son without issue which these land upon any other  construction can I shall therefore in the first place endeavour to prove that  earl Henry have not any power nor be it intend that he shall have power to  limit the somersetshire land in jointure while the estate be in the trustee  and till the l raise and in the next place show that the other construction of  the word except as be before except that the exception be not absolute but  partial lawthat after the portion raise he may exercise this power ought not  to be make wherein first I shall not need to labour to prove that the whole  feesimple be limit to the Lord Russell and other trustee till the portion  raise for though my brother who first argue seem to incline that it be a  chattel yet neither Bridgman oh of my brother agree to it and it be clear that  it be a feesimple the difference be between a limitation of use to a man till  l raise that perhaps in a use for it be not so clear as in a devise may be a  chattel but if it be limit to the use of a man and his heir till l raise it be  a limit feesimple and whatsoever estate be limit over be but contingent the  word heir be in the one case and not in the other make the difference in the  next place I do conceive under favour that these two construction which my  brother who argue for the defendant have make of the word except as be before  except be one contrary to the other for if the word except as be before except  must be thus construe that they shall extend not only to the land except but  also to the qualification of the exception as they labour to enforce it upon  the as and the as and that as the use be limit to earl Henry after the portion  raise and not before so the power be exerciseable when the estate come to he  then it be not exerciseable before the estate come to him and then this last  conception that earl Henry may make a appointment of a jointure after the  death of the other without issue male before the estate come to he can hold it  be I conceive apparent they do so interfere that the one of these construction  fall to the ground for the one of they make the estate and the power necessary  go together the other make the power exerciseable before earl Henry have the  estate but both interpretation be object to and both make against my  conclusion I shall endeavour to give answer to both first then I hold that  earl Henry have no power to limit any of these portionary land in jointure  while the estate be in the other trustee and not in he I find the first reason  upon the word which my brother in their argument enforce the couple of this  power to the other with word of connection as and it be further provide that  it shall be likewise lawful c all the other power be power annex to a estate  and exerciseable only while they have the estate and by the same reason this  ought also to be so and not to be a power in gross this be argumentum ad man  this very power to earl Henry to make a jointure as to the rest of the land  which I shall show anon be more considerable than my brother archer will have  they be a power annex to the estate and use limit to he and not in gross what  rule or measure be there that the same word in the very same clause shall be a  power annex to the estate as to the rend and be a power in gross as to these  land there be no Bridgman oh variation of the phrase out of what word in the  deed can this intention of a present appointment of a future estate appear if  it appear by the power itself that it be for limitation of a jointure is a  estate limit to commence no man know when after l raise by one who have a  contingent use which may also be disturb before it happen a jointure Aye say  Bridgman oh er p one of my brother it be a good jointure though not to bar  dower or within h yet within the statute of h I may reply that the intention  of the party for a jointure be such as to bar dower that the wife may not have  any dower of the rest of the estate and it be so understand by earl Henry and  his counsel here for this jointure be express limit in bar and lieu of dower  but it be apparent that the intention of the power for a jointure be to make a  sufficient present provision of livelihood for person of their quality and not  to feed they with expectation and contingency I go a little further I be not  satisfy to be of the opinion that if earl William have limit a jointure of  part of the land accord to his power and Edward have limit another jointure of  other part accord to his power that earl Henry during these jointure in fine  can have limit the same in jointure again during the continuance of these  respective jointure no not of those land limit to he by the first limitation  immediate after the death of earl William and Edward without issue male for  these successive power ought to have reasonable construction as in leper and  Wroths case a power to make lease for twentyone year general yet he can make a  lease for twentyone year in reversion or to begin in going to be but it must  have a reasonable intendment and if such a power be not exerciseable to a  future estate when he have a present estate much less before he have a present  estate it be agree by my brother that earl Henry power for lease be as large  as that of make a jointure and extend to the same land by this construction  earl Henry may limit these land by way of lease to commence after the l raise  nay the very word of the power be to demise they in possession reversion or  remainder if this can be bow can the trustee raise the l nay if it can be so  this estate raise by virtue of the power as I shall show anon more at large  must and will precede the estate of the trustee themselves and herein the word  in the declaratory clause be very observable that the conusees shall stand  seize of the premise so limit for jointure or lease to the use of such  Bridgman oh wife for her life and of such lessee during their term and after  of the reversion thereof to the use before declare so that the lease by earl  Henry will by this construction interpose before the estate of the trustee  which be limit by way of use last this construction of a present appointment  by earl Henry of a future interest seem to be different from the opinion of  earl Henry himself and his counsel who in frame this jointure to countess  rakehell say that the l be pay he be now seize and have power to limit in  jointure apply the power to his seize I have be the large in speak to this  conception that earl Henry have a present power before the estate fall to he  for that I do much rely on the sense of these word in the power of earl Henry  at any time or time and from time to time after the death of earl William and  Edward without issue male to limit a jointure a which by this opinion of earl  Henry present power though not to take effect till after the l raise be  endeavour to be evade by say he have a power exerciseable by way of  appointment from and immediate after their death without issue though not to  take effect till the estate of the trustee cease I now come to the other  interpretation of the word except as be before except which be that videlicet  except Holborn and Staffordshire land absolute out of the power power supply  by Mr Hargrave with reference to carter c and the somersetshire and other  portionary land only during the time that the trustee have they for raise the  l but when that be raise and the estate in earl Henry then those land also to  be in the powernot except I conceive this can be the literal or proper  interpretation of the word except as be before except to except those land out  of earl Henry power only with a until what time and yet I shall agree that a  interpretation or construction ought not to be against the letter I agree  though a interpretation or construction ought not to be against the letter of  a deed yet in some case a strain and secondary interpretation may be admit ut  to shun absurdum when the intention of the party by compare it with other part  of the deed be plain and manifest to have it so but where the intention of the  party be not clear and plain but be in state of equilibrium as it be in such  case I shall not Bridgman oh er p make a strain or secondary exposition or  construction but Bridgman oh expound they after the more proper and natural  construction of the word in the natural and grammatical construction of the  word except as be before except I conceive they be no more but except before  except it have but a single aspect to the thing except and not to the manner  of the exception for then in a true and grammatical construction the word  except shall be twice repeat thus except all the premise before except in  manner as they be except for it must by that construction have a double  reference both to the thing except and to the manner of except it it can be  deny but that this exception have relation to the thing except I conceive it  be not sufficient express to relate to the manner of except it much have be  insist upon the word as and as and that the as must have a such and it have be  also insist upon that the word be in the singular number as be before except  and not as be before except I crave pardon if I do not understand the force of  the argument from the word be be and not be except for if it be be or be the  word in Latin be in the impersonality except pro ut praeexcipitur which take  in all the exception but if you take it in the singular as my brother will  have it it make more for I for there be but one single exception in the  limitation of use to earl Henry and therefore it more strong enforce if it  have any force a reference to this for the as I conceive that be not the  proper Latin word in this place for in our law we have commonalty pro ut take  out and not as take out but I must observe since we be upon criticism that the  word be not except as it be before except but except as be before except they  make some difference in the English but more in the Latin by which we may the  better explain they as but have be expound by send or cum and exposition make  accord in the Latin as it be before except render it literal it be To take out  pro ut take out or be in charge before take out but as be before except be To  take out praeexceptis or To take out who praeexcipiuntur or be in charge  before take out or in the singular number take out quod praeexcipitur ut both  in grammatical and legal construction may import identity as to climb down ut  son et heir et to be seisitus ut de book property that be he be thread et  haeres he be seize de book property but prout may signify sometime secundum  quod and relate to the manner of exception more proper than the thing except  but in truth our English as signify quod or that as frequent as ut I will  Bridgman oh do as I may I will do as become I that be what I may or that which  I may or that which become I but it be plain that in common acceptation except  as be before except and except before except be synonymous and signify the  same thing be without any criticism and so it be in this very case query case  omit in the manuscript d in the power to the Lord Fitzwarren for jointure  there be except as be last beforementioned to be except that be the land in  high Holborn and the county of Stafford which have before a total and no  qualify exception and in the next power to he for lease except the premise in  high Holborn and the county of Stafford which be idem per idem and yet there  the as be add in the first of the power and not in the second nay in the very  power to earl Henry now under consideration though the power for jointure be  except as be before except yet in the power to he for lease which immediate  follow it be except as be last beforementioned to be except the very same word  that be in the exception in the power of jointure to the Lord Fitzwarren and  there the word as agree with the word last beforementioned seem rather to  refer to the thing except than the manner of except it and the sense of they  except last beforementioned to be except and except as be last beforementioned  to be except be all one these may seem to be too grammatical and critical  observation et often numero where a word quality to stretch toward a thing  feeling to send away but the use I make of they be first to take off the force  of the objection from the word as second to show that the most proper and  vulgar signification of the word except before except and of the word except  as be before except be the same though I deny not as I say before that in some  case the intention express in the deed appear clear to that purpose the  secondary sense videlicet that except as be before except may take in as  Bridgman oh er p well the qualification and manner of except as the thing  except but not general and universal nor where the intention appear not  manifest and therefore I shall follow the method take by my brother to search  into the intention of earl William appear in the deed and examine whether the  intention of earl William appear in the deed incline more to except those  somersetshire and portionary land out of the power of earl Henry for jointure  or lease or to include they within his power for the intention of it manifest  appear may guide we either to the first and more proper or to the second  Bridgman oh and less proper exposition the plaintiff lessor claim as heir to  earl William it will serve my turn if the intendment stand indifferent and  that it do not appear more one way than the other whether earl William intend  that earl Henry bouchier shall have power to make a jointure or to make lease  of the land in somersetshire and other the portionary land or not but yet I  conceive his intention so far as it may be collect out of the deed which be  our guide in this case be much more strong that earl Henry shall have no such  power than otherwise for first it appear that earl Henry have no great estate  than for life limit to he in these portionary land and that estate for life be  not to commence as to these land till after the portion for earl Edward  daughter pay these portion may have be more than l if there have be more than  three daughter but they come to l the jointure out of these land can not be  limit till that l raise the raise of this l be not to begin till after the  death of the earl William and Lord Fitzwarren without issue male and that earl  Henry be in possession and this l be not a inconsiderable sum to be raise  especial without sale which the trustee have no power to make can any man  think that earl William do expect or intend that earl Henry be the only male  and only person of the stock to who the earldom shall descend as may be infer  by the limit the remainder over to the heir female shall be enforce after the  earldom fall to he to continue unmarried or without make a jointure till this  l be raise by the trustee earl Henry upon the death of the other without heir  male by the deed have a present power to make a jointure of all the rest of  the estate which appear to be very considerable if he have make those in  jointure I will not now deliver my opinion upon the point of law whether he  can make a addition or supplement to that jointure out of those land if the  power reach to they because it may come in question hereafter and there have  be no cause to take it into consideration but I will say this that nothing  appear in the deed that earl William intend to give any power to make a  additional or supplemental jointure to the same wife that have a jointure  before out of the same estate or to make her two jointure second it appear  that the power which earl William intend to earl Henry to make jointure or  lease be to take commencement at the death of earl William and his son without  issue male the word be express that it shall be lawful for Henry at any time  or time and from time to time Bridgman oh after the death of earl William and  Edward without issue male to make a jointure and to make lease if from time to  time then immediate after Edward death without issue and at any time during  earl Henry life before portion raise the word may be full and literal supply  out of the rest of the estate but can out of these portionary land for he can  at any time or time after their death without issue male and after the portion  pay and not at any time or time and from time to time after their death  without issue male and I observe that to make that interpretation that the  power shall be construe respective to reach to the rest present and the  portionary land after the l levy it must have the aid or supply of a double  addition first the word from time to time after the death of earl William and  his son without issue male must in construction have a addition of the word or  after the raise of the l respective second to the word except as be before  except there must be another addition of these word respective as the same be  hereinbefore except and I do observe that the other land be not subject to the  l and as to they all these power for jointure be as it be annex to estate in  be the Lord Fitzwarren have a estate in be though in remainder so have earl  Henry but of these portionary land the feesimple be in Lord Russell and other  and there be but a possibility of a use in earl Henry and therefore I think in  such case to give Bridgman oh er p a power to make a jointure or lease of such  land whereof he have but a contingent future use and the use be limit to other  in fee it require especial and proper word at least the intention of earl  William to have it so ought plain and manifest to appear in the indenture  itself I have not yet hear any other but conjectural argument at most that the  intention of the deed be so and when word be express and plain as here they be  and may have their effect as here they have on the rest of the estate which by  the name and number of the manor and land seem to be far the great in such  case without a clear manifestation of the intention to that purpose to make up  the construction of this clause of the power of earl Henry with such addition  as these seem to I not to interpret the power but to make now one but to prove  the intention of earl William to give power to earl Henry over all it be urge  that it be a strange thing if earl Henry have such a estate be a west country  estate consist in old rend c shall not have power to lease it I allow that if  he have power to make a Bridgman oh lease he have power to make a jointure and  therefore the argument from the one power to the other be both as to this  purpose pen alike be good but the answer be plain if he do make it in jointure  as it be allege here he have do then it may be a question whether he can  execute the power for lease also after he have execute the other power for  jointure but if he may yet since his death the mischief be the same for the  jointress can make none of those west country lease but only determinable on  her own life and so may earl Henry after the l raise make lease determinable  upon his life second it be say earl William intend to preserve the honour  which descend to earl Henry and to prefer he before his daughter and therefore  it be reasonable he shall have as large power as Edward Lord Fitzwarren have  to this I answer the case be not the same for though Edward Lord Fitzwarren  have a power to make those portionary land in jointure yet it be but a power  he may settle only part in jointure and he be a son and may very well be trust  between his wife and his son and daughtersa mother and her child but the case  be not so with earl Henry he be a far remote cousin to the child of the Lord  Fitzwarren who be in the six or seven degree from he be be but a cousingerman  to their grandfather as appear in the deed and therefore it be more than  probable and the event prove it that he will execute his power to the utmost  for a wife or in make lease rather than preserve it for they in remainder who  be in so remote a distance my brother brown make a good quaere whether it can  be prudential imagine that earl William if be be ask the question whether if  earl Henry his collateral kinsman die without issue male his lady who be a  stranger to earl William shall go away with these land in question have in  effect the rest of the whole earldom from his own grandchild for her life he  will answer it affirmative No certain when it be to be consider that there be  a fair estate beside leave to make a jointure and that this can not take  effect till his grandchild portion raise and so uncertain and not fit for a  jointure and that this very estate be limit by he for want of earl Henry issue  male to those grandchild and that if this be only limit in jointure earl Henry  own issue male who will have be earl must have depend for all his maintenance  upon this jointress it be say that these land be the seat of the family but  Bridgman oh that do not appear in the record but if so it be the strong  argument that earl William intend they for the heir male and so except out of  earl Henry power to limit they in jointure and whereas it be say that the rest  of the estate be not considerable that be gratis dictum for it appear to be  very considerable by the many name and number of acre mention in the fine as  all the land in Cornwall Gloucestershire and many manor in Devonshire c but  this objection needs no answer it rise no high than to a bare conjecture at  most of earl William think and we be not to judge of they further than they be  legible in the deed another reason which move I against this construction of  the word except as be before except that they shall be take to except only the  portionary land till the l for the portion raise and no long be this By the  indenture the l be to be raise out of the rend issue fine casualty or profit  of these Bridgman oh er p land and it be not to be raise by sale and it appear  by the power reserve for make lease that this estate consist much of old rend  and so it be agree by the defendant counsel who make this objection upon it  and it appear by the jointure deed make to the countess rakehell by earl Henry  find in this verdict that the l be raise as well out of the fine and casualty  as the rend and revenue the fine which shall raise the l by reasonable  intendment must be fine for lease and it be reasonable to be presume that the  l which be find to be raise be raise by lease make by the trustee and that  earl William intend they may make such lease if such lease be make by the Lord  Russell and other the trustee if afterward earl Henry may limit these land in  jointure this jointure must take place and precede the lease and avoid they  during the jointure for the lease make by the Lord Russell and other trustee  be make not by virtue of a power but out of the estate limit to they and their  lessee come under they but the jointress claim under earl William by the fine  and in construction of law it be as if the jointure be original limit to her  upon the fine as appear by the case cite before if it be say that the power  shall be understand so as that her jointure shall take effect charge with the  estate make by the trustee I say that be to make a far addition or supply to  the word of the power videlicet to add these word this power to be subject to  the lease make by the trustee and Bridgman oh so by admit three such addition  as in this exposition you do there may be make quidlibet ex whithersoever you  please but second I answer that in such case where power be to be put in  execution to take effect subsequent and to stand charge with estate make by  those who claim under the limitation of the use in the conveyance there ought  to be express word for it and so have be in all conveyance that I ever see for  otherwise it be contrary to the nature of the power which be understand to  have its essence from he who create it and in construction of law to precede  the limitation of use and this be prove by Whitlocks case and fox and  Brickwoods case which I cite before so thatQuery case omit in the manuscript e  as the defendant will construe the word of the power earl Henry may limit  these portionary land in jointure or make lease of they as soon as earl  William or his son die without issue male and then in all probability there be  a jointure and possessionary and reversionary lease intervene the portion can  not be raise in any convenient time to marry the daughter or if lease be make  bythe Lord Russell and the other trustee the paragraph from this passage to p  fine make in grant estate seem to be omit in carter report of the case e and  so the portion raise then earl Henry and so his countess here come in  paramount may avoid these lease for it much differ from the case Elizabeth and  Dutton and Ingrams case Cr where the case in effect was a man devise land to  his son John and the heir of his body upon condition that he shall grant a  rend of to Stephen his second son and his heir which grant be make accord it  be resolve that by the limitation of the will John be to make the grant of  this rend which be by the appointment of the donor stand with the gift and  shall bind the issue in tail second that this rend in feesimple shall continue  though the estate of John be determine for it be a good grant of the rend in  fee issue out of all the estate and not out of the estate tail only and be  guide by the direction of the will it shall take effect the word effect be  here supply f accord to the limitation thereof and charge all the inheritance  the case eiz which be also Cr is A recovery be suffer in London to the use of  the reversioners till they have make a lease by indenture for forty year and  after to the use of the baron and feme and the heir of the feme it be her land  the wife can avoid this lease Bridgman oh in those case the grant of the rend  and the lease for year be raise by a commonlaw estate and not by virtue of a  power and by the express word as well as by the intent of the deed be to take  effect from the time of the make and the estate of the freehold and reversion  be to be clog with they but the estate raise here by Henry earl of bath by  virtue of the power be in law to precede the estate limit to Henry himself as  if they have be precedaneously limit by Henry Bridgman oh er p himself and  also by the express word of the deed the power be to take place from the death  of Edward without issue the force of this objection one of my brother of the  contrary opinion will avoid by deny that the Lord Russell and other the  trustee have any power to make lease and affirm that the clause whereby they  be to raise the portion for daughter out of the rend fine issue casualty and  profit of the land be to be expound not of fine by make lease but of fine of  copyhold or fine in court but this construction I take it be contrary to the  bend of the former argument wherein it be insist upon that the manor consist  most of old rend it must be a very great yearly present revenue which will  raise timely portion of apiece to the three daughter in all l and if there  have be many more daughter as then there may more to every other daughter  which old rend will not well pay unless by fine upon lease the word fine can  reasonable be take for fine of copyhold for first it do not appear neither for  aught I have hear be there any such copyhold and unless the contrary appear it  shall be presume that all land be of the nature of and disposable accord to  the commonlaw second the great care which be take to limit a power to earl  William Edward and Henry be tenant for life to make lease argue that the land  be leasehold not copyhold for there need no reservation of power upon copyhold  dominus pro tempore may grant they accord to custom see taunt Sugden on power  g and the word fine can be take for fine in court in nature of amerciament for  such fine be to be impose only in court of record and for offence these be  only court of manor and which have no such power if there be any other court  of record they shall have be find in the verdict which find the seize of earl  William beside such kind of fine make little towards raise such portion as  these and the subject matter be the raise portion out of estate Bridgman oh by  fine it be a violence offer to the word to construe they otherwise than accord  to common and vulgar speech and intendment videlicet to raise they by fine  make in grant estate and last if the intendment of the deed be total dubious  as to I it seem otherwise then I ought to construe it in favour to the heir of  earl William who make the settlement and to who the same be limit in remainder  and give these land to they rather than to give the whole estate to a  jointress who be a stranger to the estate and familyof earl William and who be  or may by the power be provide for sufficient out of the rest of the estate I  shall in the next place give a answer to some objection which have be make and  not yet answer one main objection be make by my brother who argue for the  defendant to this effect that it be frequent to have a transposition of word  to make all part of a deed to agree when otherwise there may seem a repugnancy  and therefore if the word of the limitation of use have be and for default of  issue mate of Edward then of all the premise other than or except for under my  brother pardon who make a difference other than be only a perfect word of  exception the somersetshire land to the use of the trustee and their heir  until what time the l raise and after of those somersetshire land as also of  the rest after the death of Edward without issue male to Henry for life and so  to his first son c it be say this will have make all clear that the intention  of the exception be only till the portion raise and as it be it ought to be so  construe it be but a transposition suitable to the word in the other  limitation of the somersetshire land the vary it and divide the sentence be as  be say only to avoid confusion in the deed to this I answer first that if the  word have be so pen it have be no exception proper but a neglect of the  somersetshire land in the limitation to earl Henry but if you make a case  wherein you shall insert word of exception as except the somersetshire land  till the l portion raise in the word of limitation of the estate which will be  distinct I will not determine how in such a case the word in the proviso of  power for earl Henry may extend for still there be a unsuitableness Bridgman  oh er p of it to the estate of earl Henry the power be by the lessor  exerciseable while the portion be raise but I answer that case be clean differ  from we for there the exception in the body of the limitation be but a partial  exception and the whole land be not except but in our case the whole  somersetshire land be except Bridgman oh out of the body of that limitation  and it be true that land be not except out of the deed but out of that  limitation but the exception be a total and absolute and not a partial  exception it absolute except the land riot only part of the estate of the land  out of that limitation if I grant my manor of a except the jointure of my  mother for life the reversion be not except but if I except the land which she  have in jointure for life it be except and this be not like the case which one  of my brother put of a exception of Blackacre for year with a limitation after  of all the premise except before except for then the whole land or the whole  estate in the land be not except but I return this objection thus that by make  two distinct limitation in the use to earl Henry whereas he may more facile  and easy have limit the somersetshire land until what time among the other  limitation of the estate it rather argue that he intend to distinguish they in  the power from the rest since he distinguish they in the limitation and so  when he have these word in the power except as be before except the exception  be absolute in the limitation it must be so in the power one other objection  be make and much rely on in the argument on the defendant part at the bar upon  the last clause of the indenture after the limit the power to earl Henry for  jointure and lease it follow and that the say fine shall be and the conusees  shall stand and be seize of and for so much of the say premise as shall be so  limit in jointure as aforesaid or as shall be by he lease as aforesaid to the  use of such wife and also for the use of such lessee for and during their  several estate so to they to be grant and accord to the effect of the same  several lease which very word be also boundary to set bounds at the close of  the power to earl William and at the close of the power to the Lord Fitzwarren  and neither enlarge or diminish or explain the matter of the power but be  relative to the power be they what they will be but then it be subjoin as  follow and as well of the reversion and reversion of all and singular the  premise which shall be so assign for jointure or lease by the say earl Lord  Fitzwarren and Henry bouchier or by any of they respective in manner and form  aforesaid as also of all other the say premise before except except the say  premise in high Holborn and in the county of Stafford to the use limitation  interest and purpose hereinbefore declare and express and to or for no other  use intent or purpose whatsoever I confess I understand not the force of the  argument from Bridgman oh hence I think the inference is because only high  Holborn and the land in Staffordshire be except here that therefore  somersetshire and the portionary land be to the use before declare No doubt of  it they be to the use before declare of they in the limitation and proviso  themselves this clause be but the wind up clause which though unnecessary yet  be usual in all conveyance where after a limitation of use there be a  interposition of estate by virtue of power to add that after the estate by  virtue of these power end the land shall be to the use before declare but this  declaratory clause add riot nor alter any thing touch the use or the power  before declare but contrariwise be tie up to they by several relative word as  the word so respective and in manner and form aforesaid so that I know not how  it can be more significant express than as it be that after the several estate  by virtue of the several and respective power determine the premise shall be  to the former use respective I have do with this objection also and in regard  the intention appear not clear that earl Henry shall have any power at all  over these portionary land but bare a estate for life after the l raise that  the construction be to be make as of a deed and not of a will that the word of  earl Henry power be literal fulfil by the other land and these be not bring in  to the same power but by a violent construction and enforce addition of many  word not express in the need and to the prejudice of the heir at law to who  the same be also limit in remainder I therefore hold that earl Henry power of  make a jointure extend not to obese portionary land limit to the Lord Russell  Bridgman oh er p or other the trustee for raise of portion but that judgement  ought to be give for the plaintiff