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sale of part of the settled estates; and therefore the said Sir T. Biddulph and all persons claiming under the will of the said Simon, were desirous and had agreed that certain parts of the estate should be sold for that purpose, freed and discharged from the said incumbrances; and that the surplus of the money,
after payment of the incumbrances, should be laid out in the purchase of other lands, more contiguous to the estate, to be settled to the uses of the will of Simon Biddulph. It was therefore enacted, that the said estates should be vested in trustees, their heirs and assigns, free from the trusts therein mentioned, in trust, with the consent of Sir T. Biddulph, to sell the same, and to apply the money in payment of the incumbrances, and all interest which should be then due and owing for the same ; and also in payment of the said sum of 2,8191. 4s. due to Sir T. Biddulph, together with all interest that should have accrued due for the same to the time of the payment thereof; and to lay out the remainder of the money in the purchase of lands, to be settled to the uses of Simon Biddulph's will.
The trustees who were named in the act of parliament did not act, and new trustees were appointed. Sir T. Biddulph himself sold the estates, and paid off the incumbrances, and also paid or took credit to himself for what was due on account of interest; and laid out the residue in the purchase of lands, which he'settled to the old uses.
Theophilus Biddulph, the eldest son of Sir T. Biddulph, filed his bill in Chancery against his father, and the trustees, stating the above facts, and that there remained a balance in the hands of the trustees of 7,2071., which had not been invested in the purchase of lands, according to the directions in the act; and the plaintiff being entitled to an estate tail, expectant on the estate for life of his father, in the land to be purchased, he prayed that the said sum of 7,2071. might be laid out in the purchase of lands, to be settled to the old uses. .
Sir T. Biddulph by his answer admitted that he, acting for the trustees in the act, did, out of the money arising from the sale of the estates which were sold under the act, pay and apply not only so much as was necessary to discharge the incumbrances affecting the estates, but also all such interest as was due and owing on the said incumbrances at the respective times when the same were paid off; namely, as well such interest as was due and owing on the said incumbrances at the time when the defendant came into possession of the estates, as what afterwards accrued ; the same being directed by the act. And submitted that such payments of interest were respectively made, as being directed by the act; and that there being such directions in the act for
payment of all interest, the defendant, as tenant for life, was not bound to keep down the interest of the incumbrances, from the time he came into possession of the estates; and that the act of parliament was not a fraud upon the plaintiff and the persons interested in the estates; and that the defendant ought not to make a compensation for such interest, as required by the plaintiff's bill. But admitted that the rents and profits of the estates which were charged with the said incumbrances were more than sufficient to answer the interest of the incumbrances; and said he did not, in suing for and obtaining the act of parliament, intend any fraud on any of the persons who were to become interested in the said estates after him; and said that the interest which accrued, after he came into possession of the said estates, amounted to 7,2071.; and stated the sums
of money paid and laid out in lands; and said there did not remain any money to be invested in land, all the money having been fully and properly applied, pursuant to the directions of the act; and submitted that he was not compellable to make any compensation for such trust monies.
Upon hearing counsel, and it being admitted that the said sum of 7,2071. was received by the said Sir T. Biddulph for rents and profits of the estates in question, of which he was tenant for life, and which ought to have been applied in keeping down the interest of the incumbrançes affecting the said estates ; and it being admitted, that all the expences of the act, and all the expences anterior to the money being laid out in land, had been paid; it was ordered and decreed, that the defendant, Sir T. Biddulph, should pay the sum of 7,207 1. into the Bank, in the name of the accountant-general, in trust, in the cause, to be laid out in the purchase of lands agreeable to the act of parliament.
1. Nature of 7. Grants of Franchises., 9. Of Offices. 10. Of Crown Lands. 22. Of the King's private Pro.
24. Of Lands acquired by Escheat
record, is a grant from the King to a subject : for it is a rule of the common law, that the King can Bro. Ab. Tit. only give by matter of record: therefore the King's Prerog. pl.
71. grants are contained in charters, or letters. patent under the great seal, enrolled; and usually directed or addressed by the King to all his subjects.
2. Lord Coke says, where the King's grants, con- 2 Inst. 78. cluded with the words hiis testibus, they were called chartæ, or charters; and where they concluded with the words teste me ipso, they were called letters: patent, being so named in the clause--In cujus rei. testimonium has literas nostras fieri fecimus patentes.
3. The King's letters patent under the great seal of England need no delivery, nor his grants under the great seal of the Duchy of Lancaster, for they, are sufficiently authenticated and completed by the annexing of the respective seals to them.
4. By the statute 13 Eliz. c. 6. it is enacted, that an exemplification of the enrolment of any letters patent, granted from the 4th February, 27 Hen. VIII.
or thereafter to be granted, shall be of as good force,
to be shown and pleaded in behoof of the patentees, Page's Case, their heirs and assigns, and every other person 5 Rep. 52.
having any estates from them, as if the letters patent
themselves were produced. 2 Comm.340. 5. There are a variety of offices, communicating in
a regular subordination, one with another, through which all the King's grants must pass, and be transscribed and enrolled ; that the same may be narrowly inspected by his officers, who will inform him if any thing contained therein is improper, or unlawful to be granted.
6. It will only be necessary here to treat of those grants by which the Crown gives something that falls within the description of real property, such as franchises, offices, and lands.
7. It has been stated in a former Title, that all Franchises, Tit. 27. 83.
franchises in the hands of private persons are derived from grants by the Crown: but that ancient grants of franchises are not sufficient without an allowance of them before justices in eyre.
8. The Crown may still grant fairs, markets, parks, warrens, &c. ; though no grants of parks, warrens,
and free chase, have been made for some centuries. Of Offices. 9. There are a variety of offices held immediately
under the Crown, which can only be granted by Tit. 25. letters patent. And it has been stated, that each of
these offices must be granted with all its ancient rights and privileges, and every thing incident to it.
10. It is somewhat doubtful whether our Kings were formerly enabled 10 alien the Crown lands; for although the Conqueror and his sons granted away great esuates to their subjects, yet these were forfeitures. In process of time, however, our Kings certainly exercised the right of granting the Crown