MS. D. D. Ch. Ch. MM. 24

Good Mr. Deane , least I should seeme forgetfulle of my good frends to whom I ame for many causes undeservedly behoulden, I have at the last sent you myne opinion of the lease of Churche-Cowley whereof you delivered mee a coppie. ‘In which I note three things fitt to be considered. First, what the case is: Secondly, what the lawe is: and thirdly, what manour of proceedings are fittest to be used against the tennaunt. 1. What the case is. For the firste I finde it as harde to searche out the truth of the case, as beinge searched oute to determine the points of lawe, but consideringe the coppye of the lease with other Writings which I have receaved sithence of my Cosin, Mr. Doctor Thornton , I finde your case to be this. Hen 8. an° 27. R. K. Abbott by reccomendacion, but not by election of the Monastery of O⟨seney⟩ : in the Countie of Oxon’ by Indenture bearinge date 15 Martii an°. 27°. H. 8. with the assent of the Covent demiseth unto H. R. and L. his wife the mannour of Church-Cowley in the said countie of Oxon’, and divers other lands. Habend to the said H., K. his wyfe, F. and L. theire daughters and to the longest liver of them immediately after and as soone as a certaine lease graunted to Jo: of … and Isa: his wyfe of Cowley aforesaid is fully ended and expyred, by death, forfaiture surrender or otherwise, unto the ende and terme of 31 yeares. An°. 29°. In December an° 29° H. 8. a Conge deslier or licence to elect an Abbot to the saied Monastery is graunted, the said R. L. is elected, the Kinge in Januarie followinge assenteth to the election, and in Februarye the temporalities are restored. R. K. now Abbot by election by Indenture bearinge date 14 Aprilis eodem an° H. 8. viz: 29° with the assent of the Covent recitinge the former lease confirmeth the same, and doeth farther by the same Indenture geive, demise and graunte unto the saied H. and K. his wyfe, F. and L. theire daughters (but sheweth not what hee doth geive or demise) habend’ to them and every of them for the terme of the saied [sic] yeeres (with a space) after the forme and effecte in the saied former Indentures specified and declared. The said Abbot and Covent doe further by the same Indenture demise graunt and to ferme let unto the saied H. R. the saied Mannour of Church Cowley and the saied other lands Habend’ to him the saied H. and his assignes immediately and as soone as the said lease made unto the saied H. and K. his wife for the terme of 31 yeeres dated 15 Martii an° 27 H. 8. shall happen to expire and ende, unto the ende and terme of 68 yeeres yeildinge rent. an°. 31°. The saied Abbot in an° 31. H. 8. by the name of R. K. Reoven Episcopi commendatorie of the Abbey of our blessed Ladye of O. in the countie of Oxon’ with the assent of the Covent by deede under theire common scale doth surrender the Abbey and all the lands there unto belonginge unto the Kinge; which is confirmed by statute of 31 H. 8. ⟨f. 1d.⟩ After, the Kinge by his letters patent graunteth the Mannour of Church-Cowley inter alia to the Deane and Chapter of the Cathedral Churche of Christ in Oxon’ and to theire successors. Thus far goethe your Case. 2. what the lawe is. The pointe where you desire to be resolved is, whether this Lease of the 14th of Aprille an° 29°. H. 8. bee a good lease against the Deane and Chapter or not. To which I answere shortly, that it is a voyed Lease in all: or not good for any more then Seaven yeares to come in Apriell next. Whether it bee voied in all or no, I stand doubtfulle, but that it can not bee good for any more then Seaven yeeres in Aprille next, I ame resolute. For the pointe which hath carried awaye your conceipt, I take yt it will not helpe you, or I finde that at the makinge of the lease in 29° he was an Abbot by election and not by commendacion: as ys conceaved: and whether he weare then Episco: Reoven’ (Whether it be materiall in common law, to make him onelie a commandatorie Abbot, though he were elect, because he was at that tyme also Episc. Revens’.) or not, I thinck in our Law it will not be greately materialle. But the pointe whereupon I finde helpe for you is this. The first Lease made by R. K. in Marche an° 27°. H. 8. for 31 yeeres in revercion: was a meere voyed Lease bycause hee was then but a Commendatory and had no power to make such a Lease. And when hee after in 29°. H. 8. beinge a perfitt Abbot doeth confirme this Lease, that confirmacion is likewise voied for that a voyed Lease can never bee made good by confirmation. And when hee goeth on and saieth that he doeth geive demise and graunt, these bee good Woords to have made a new demise, yf he had expressed, what he did geive, demise, and graunte. And when he saieth Habendum for the terme of the said … Yeeres (with a space) after the forme and effect in the saied former Indenture specified and declared: I thinke that the terme should have beene expressed in certaine, and that the reference to the former Indenture is cleerely nought. Then the Lease for 31 yeeres beinge voyed, this is your Case. A Lease is made for 68 yeeres to beginne uppon the expiracion of a voied lease: when this shall beginne that is your pointe. The grounde of Lawe is, that yf a lease for … yeeres have not a certaine tyme when it shall beginne and when it shall ende, then it is voyed. The meaning was that this Lease should beginne, when the voyed Lease by effluxion of tyme shoulde have ended, but by Law this can not bee, for that a voyed Lease hath no tyme to beginne nor no tyme to ende. Then the second Lease must either bee voied, or else the Lawe must appoint a tyme when it shall beginne. Also the Lawe then, when it shall beginne, and the answere is plaine: yf it shall beginne at all, it must beginne from the makinge. And then from the 14 of Apriell an° 29° H. 8. which was in the yeare 1537 to the 14th of Apriell an° 39 Eliz. in the yeere 1597, are iuste three-score yeeres and so of this Lease in Apriell next are seaven yeeres to come. 3. What maner of proceeding is fittest to be used against the tenent. Now for your proceedinge against the Tennaunt, yf you shall resolve to attempt suite, then I have formerly directed a course yf you thinke good to deale with the tennaunt by waye of mediatis, then you can better advise yourselfe, then I can direct: if you would have mee to confer with any other, I can like verie well of it. The coppie of the lease which I receaved of you togeather with the other writings which I received of my cosin Thornton I have sent you by this bearer. I have likewise sent you the court Rolle of Daventree: which I wishe should bee kept amongst your evidences of Daventree, that you maye have recourse to your Rolles as you shall have occasion. 4. Whither our leete at Daventrie be loste by non use, or no. For the court Leete at Daventree I would bee glad to keepe it when I maye bee assisted by your selfe or by somme of the Chapter. You see how much wee have beene resisted when we have doen no more than we have good authoritie in Lawe to doe: what shall I looke for them, yf I goe alone to doe that which I knowe I can not instefie; I doubt that in extremitie of Lawe, you have lost your Leete by not usinge it, and therefore I would wishe that Mr. Attorney weare first made acquainted with it, and that at Easter you should keepe bothe a leete and a courte Baron. And thus havinge troubled you over longe, I hartely wishe you all comfortable happinesse in Christ Jesus. Grayes Inne this of October 1597°. Your Wor’ assuredly in what he can.