burrow sir John Trelawny bart versus bishop OF winchester Saturday that Feb  bishop may grant ancient office with the ancient fee SC burn Ec l d vol Edward  p hill g roll Lord commissioner Wilmot absent in chancery it be a action of  debt for for five year salary of several office videlicet great or chief  steward to the bishopric and all its castle lordship manor c and conductor of  the man and tenant of the bishop thereof with a salary of per annum and of  master keeper or preserver of the wile beast in all the forest park chase and  warren belong to the bishop and chief governor of all bird fish and beast of  warren c common call chief parker with a salary of per anu which office and  salary be grant to the plaintiff by sir Jonathan Trelawney Bart late bishop of  Winton by letter patent with clause of distress if unpay the bishop plead the  statute of Elizabeth c and also that the office aforesaid a the husband be  seize in right of his wife of customary land in fee and he and his wife by  licence of de lord make a lease for year by indenture have issue two daughter  and the husband die the wife take another husband and they have issue a son  and a daughter and die the son be admit to the reversion and die without issue  by manwood that reversion shall descend to all the daughter for the estate for  year which be make by indenture by licence of the lord be a demise accord to  the commonlaw and accord to the nature of the demise the possession shall be  adjudge which possession can be say possession of the copyholder for his  possession be customary and the other be mere contrary therefore there shall  be no possession brother but if one have be the guardian by custom or the  lease have be make by surrender there the sister of the half blood shall not  inherit and mead say the case of the guardian have be adjudge Le a vin pl see  the last clause of that statute which he plead verbatim as infra and see also  vin pl burrow er p be not ancient office of the bishopric nor be usual grant  for life and that the say fee be not the ancient fee and that the say office  be useless and mere nominal and no duty or service to be do for or in respect  of they and that the grant be grant of hereditament parcel of the possession  of the bishopric c the plaintiff re lie that they be ancient office and the  fee the ancient fee and that they have be usual grant for life without hoe  that they be useless and mere nominal the bishop rejoin that the office be  useless and mere nominal and without any duty or service to be do for or in  respect of they in manner and form as c and issue be join thereon the special  verdict find that the office of chief steward and of conductor of man and  tenant of the bishopric be ancient office of the bishop and have be ancient  and usual grant for life with a annuity and that the annuity of be the ancient  fee that the same be grant to the plaintiff by Jonathan late bishop of  Winchester on the that July queen whether which grant be approve by the dean  and chapter and confirm by they burrow that the plaintiff thereby become seize  and be still seize thereof and receive the annuity during the life of Jonathan  late bishop of Winton the grantor and of his successor Charles Trimnel and of  his successor Richard Willis and also during the first eleven year of the  present bishop time dr Benjamin Hoadly and that five year annuity end at  Michaelmas remain unpay then they find verbatim the private statute of  Elizabeth c see more be report and post by the last clause of which Act all  gift grant c make by any archbishop or bishop of any honour castle manor land  tenement or other hereditament be part of the possession of his archbishopric  or bishopric or unite appertain or belong to any of the same archbishoprics or  bishopric to any person or person body politic or incorporate other than to  the queen highness her heir and successor whereby any estate or estate shall  or may pass from the say archbishop or bishop or any of they other than for  the term of twentyone year or three life from such time as any such lease  grant oil assurance shall begin and whereupon the old accustom yearly rend or  more shall be reserve and Payable yearly during the say term of twentyone year  or three life shall be utter void and of none effect to all intent  construction and purpose any law custom or usage to the contrary in any wise  notwithstanding that these office at the time of the make of this Act and now  be mere nominal and no duty attendance or service to be do for or in respect  of they or either of they in manner and form as the bishop have allege but  whether c as to the other office of masterkeeper of all the beast in the park  or chief parker they find that that be not a ancient office and that the  bishop for the time be have not ancient and usual grant it nor the annuity for  the life of the grantee and that that office also be at the time of make the  Act and still be a office mere nominal and that no duty service work labour  attendance or business ever be or be c the question upon this special verdict  be whether sir John Trelawny the grantee be entitle to hold the two  firstmentioned office and to recover these arrear against the present bishop  as to the last burrow mention office of chief parker the fact find by the  special verdict make a end of any question concern it and the point be give up  this case be first argue upon Tuesday that of January by Mr salibury Brereton  for the plaintiff and Mr Pratt for the defendant NoteSir John Trelawny the  plaintiff die during the time of the first argument but as the demand be for  arrearage this event do not prevent the court from proceed to hear the  argument on Tuesday first February it be again very full argue by Mr Norton  for the plaintiff and Mr solicitor general York for the defendant it be No W c  S relate only to plaintiff or defendant die after interlocutory judgement and  before final burrow er p Lord Mansfield say he be ready to give his opinion  now but as Mr justice Wilmot have hear the first argument he choose to report  to he what have pass upon this and to know his sentiment before judgement  shall be give and therefore order it to stand aver till Saturday then next and  this day his lordship give the resolution of the whole court after have first  state the case to the effect as above c Lord MansfieldAt commonlaw a bishop  with the confirmation of his dean and chapter may exercise every act of  absolute ownership over the revenue of his see and bind his successor as much  as tenant in fee can bind his heir by the statute of Elizabeth c all gift  grant feoff fine and other conveyance or estate from the first day of that  parliament have make do or suffer or to be have make do or suffer by any  archbishop or bishop of any honour castle manor land tenement or other  hereditament be parcel of the possession of his archbishopric or bishopric or  unite appertain or belong to any of the same j to any person other than to the  queen her heir or successor whereby any estate shall or may pass from the  archbishop or bishop other than for the term of twentyone year or three life  from such time as any lease grant or assurance shall begin and whereupon the  old accustom yearly rend or snore shall be reserve Payable yearly during the  say term of twentyone year or three life shall be utter void any law custom c  notwithstanding patent or grant of office with fee salary or profit annex to  they be not mention in the Act there be burrow no general word adapt to the  case of office and yet there be not a single bishopric at that time without  some office grant have the legislature mean to restrain the regranting they as  they shall drop in it must have be do by a special provision with a exception  of some at least of judicial office as the general restraint be not extend to  the case there be no occasion to make exception continue ancient office with  the ancient fee in the usual manner be not a dilapidation of the revenue of  the bishopric every bishop leave this power to be exercise by his successor as  his predecessor leave it to be exercise by he such grant bring no new charge  upon the bishopric which only remain liable to the same fee or salary to which  it be liable before the Act have no retrospect as to any charge or encumbrance  whatsoever bring upon the revenue of the bishopric before the first day of  that session January so little be office think within it that the bishop of  Ely on the that of April make a new grant of the office of keep his house and  garden which be never grant before with a fee or salary of a year this come in  judgement in h Elizabeth Ro as cite in lie it be hold good because the office  be think to be a necessary office and the fee reasonable which be the proper  measure whereby to judge whether it be a indirect alienation under colour of a  new grant though it be extraordinary to hold this office necessary or the fee  reasonable or indeed to imagine that any office can be necessary which never  exist before a however that determination have be esteem good and acquiesce in  the next case be in Trinity and Hilary Elizabeth cite in   b and lie pound the  bishop of Chester grant five mark for life pro council c to Bolton and Bolton  aver that his predecessor have grant reasonable fee but do not aver this fee  ever to have be grant before the opinion of the court be against the plaintiff  so he never have judgement and the treason of the opinion be that this be a  voluntary thing and not a office at last in the d of Elizabeth the true  distinction seem to have be take in lie more p report this case though he call  the plaintiff house and the mansion Downham as of the same term Elizabeth  rotlo but in cro car it be cite as of h James ro and Brownlow report it as of  m James a these may be the reason but not mention to be so by more nor clear  so mention in lie the record of the case be bendl by the name of hawse and the  bishop of Ely lie burrow er p where the archbishop of Canterbury grant the  office of surveyorship with the ancient fee and more it be hold void on  account of the new addition that be a injury to the successor burrow in the  first year of the reign of king James the first the legislature have this Act  and the subject matter of it under consideration the James c extend to the  king that restraint which the first of Elizabeth lie upon grant make by a  bishop to a subject but though question have arise upon grant of office though  in fact during the whole long reign of queen Elizabeth the bishop have regrant  their ancient office as they fall in yet the legislature do not interpose and  therefore mean that this power shall continue they be satisfy with the  distinction of the archbishop of Canterbury case in the d of Elizabeth that no  new charge can be bring upon the see from the that of Elizabeth the time of  the bishop of ely case to this day no grant of a new office with a new fee  ever be hold to be good such a grant be within the meaning of the first of  Elizabeth by construction becauseit be a colourable alienation and under that  pretext the whole statute may be evade from the first of Elizabeth to this day  there be no case where the regrant of a office in be before the first of  Elizabeth n the usual manner with the ancient fee be adjudge to be within the  restraint of that statute if these grant be not within the statute but stand  as they do at commonlaw the utility or necessity of they can never be material  a bishop at commonlaw with the confirmation of his dean and chapter may bind  his successor by grant from which they can have no benefit there be no case  since the that of Elizabeth that have judicial turn upon the utility or  necessity of the office the only question have be whether the grant be  agreeable to the usage before the first of Eliz the bishop of Salisbury case    b t James come before the court upon a demurrer it be not allege in the plead  of either side I that the office be or be not necessary the plea in bar to the  avowry be single that the office never be grant before beyond one life and the  grant be hold good in the that resolution it be resolve that the grant of a  ancient office to one with the ancient fee by a bishop shall not bind he  successor unless it be confirm by the dean and chapter a for such grant be not  as appear before restrain by over statute of the first of Eliz b and therefore  remain at the commonlaw and by consequence ought to be confirm by the dean and  chapter if so the burrow utility or necessity of the office be not at all  material for by the commonlaw the utility or necessity of a office be no  requisite towards render the bishop grant of it confirm by his dean and  chapter good and valid the bishop of chichester case in cro car and lie car  year dom come before the court upon a demurrer too there be no allegation in  the plead on either side as to the office be necessary or not the question  turn sole upon the addition of a new fee the case of the t register of  Rochester in cro car hill c year   a a confirmation be necessary b this be but  half reason because if such grant be within the Henry c then if make with the  requisite of that Act they will be good without any confirmation if they be  not restrain by Eliz and therefore the statute of Henry remain in force as to  such office suppose they be make agreeable to it but queen why such office as  have be immemorially be not within Elizabeth c as they be resolve to be cro  Elizabeth and the judgement there be affirm in dom proc in may and the reason  give in cro car for the resolution appear there to have be that they be within  the word and the intent of the statute for they be hereditament and appertain  unto they and note the very word of Elizabeth c be manor land tenement or  hereditament part of the possession of or unite appertain or belong to any the  archbishoprics or bishopric gee bishop of Chichester v Freedland young v foul  cro car march Ro Abr pi pi see also sir William Jones young v Stowell Tr car  in a action upon the case for disturb the plaintiff in the same office S p  accord burrow er p domini come before the court upon a special verdict there  be not a word as to the office or reversionary grant be necessary but it be  find to have be usual grant in reversion and therefore the court adjudge such  a grant in reversion to be good against the successor thus stand the  construction of this statute upon the reason and word of the law practice and  judicial determination but it happen that beside the real ground of the  judgement in the bishop of Salisbury case they echo the reason of the bishop  of ely without distinguish the essential difference between the two case and  labour to prove that the office be necessary under the great authority of the  reporter the same reason be repeat in the subsequent case and where the grant  be good because it be warrant by the usage before the first of Elizabeth they  needs must ex abundant labour to show that the office be necessary by argument  so inconclusive and so contradictory that one be sorry to read or repeat they  it be necessary to grant for one life but not necessary to grant for two or in  reversion and then it be necessary to grant in reversion that when the first  life drop there may be another immediate to fill the office whereas in real  truth few of these patent office except the judicial be useful or necessary in  any sense few be necessary or even expedient to continue beyond the bishop own  time none necessary by any colour of argument to be grant in reversion or for  more than one life but if they exist before the first of Elizabeth they be not  within the statute they be govern by the commonlaw and therefore grant of they  bind the successor how useless soever they may happen to be burrow the next  case that be mention be the case of Ridley v Pownall lev c there the special  verdict find the office to be a necessary office which be the first instance  where it appear judicial to the court that the office be necessary and that it  have be separalibus time since the foundation of the bishopric grant for three  life my Lord hale who distinguish what he read and think and reason from  himself say before the first of Elizabeth there be no difference between the  grant of office of ancient and new bishopric both make their grant as owner  and if they usual grant for three life before the statute they may grant so  after but the verdict be defective because it do not find that it be usual so  do before the first of Eliz and on account of the incertainty there be a  venire de to make new otherwise judgement will have be give for the defendant  so that you see find the office to be necessary be total immaterial in the  case of Jones v beau in b r W m report in Mod the issue direct out of chancery  be whether the office of chancellor of llandaff have be usual grant to two  before the first of Eliz and the jury find that it have the court hold the  grant of the office to two to be good and no man alive will say that it be  necessary that the office of a bishop chancellor shall be grant to two the  office in question in this cause be find never to have be more useful or  necessary than it be now and yet all the bishop of Winchester from the first  of Elizabeth have think the grant of it valid and every succeed bishop have  submit to the grant make by his predecessor and t the great man of the kingdom  or the near relation to the bishop have successive hold the office the present  bishop think this grant good for eleven year but have conceive a doubt from  the misapplication and repetition of inconclusive and contradictory argument  about the office be necessary which be to be find in the report of the case I  have mention before the that of c d whereas we be all unanimous of opinion  that a office and fee which exist before the first of Elizabeth S not within  the statute but may be grant since precise v   a b this be a action upon the  case in b r for disturb the plaintiff in his office of register to the bishop  of Bristol a new bishopric find tempt h see Keble S c sir John grant be to  hold in tam opportunity modus as Richard earl of Portland Thomas caryi George  duke of Buckingham Charles earl of Nottingham Thomas duke of Norfolk Philip  earl of Pembroke and Montgomery James duke of Ormond or Henry earl of  Clarendon have hold burrow er p in the same manner in which it be grant before  and that the utility or necessity of such a office be no more material since  the first of Elizabeth than it be before and this opinion we think agreeable  to burrow the word and intent of the Act and every precedent since the statute  and in this be opinion my brother Wilmot concur with we and therefore there  must be judgement for the plaintiff which judgement be order at Mr Norton  request to be enter as of the term in which the postea be returnable because  sir John Trelawny be dead between that time and the present time of pronounce  the judgement