56.9.

new distinct tenure by fealty of this parcel, guided by the express tenure upon the manor; it is the probablest course of the three but yet if the former authorities, I have alleged, be well understood and marked, they shew the law plainly, that it cannot be; for you shall ever take the king's grant ad idem and not ad simile, or ad proximum: no more than in the case of the absque aliquo reddendo, or as free as the crown; who would not say that in those cases it should amount to a socage tenure? for minimum est nihilo proximum: and yet they are tenures by knight's service in capite. So if the king by one patent pass two acres, and a fealty reserved but upon the one of them, you shall not resort to this ut espressum servitium regat, vel declaret tacitum. No more shall you in your case imply that the express tenure reserved upon the manor shall govern, or declare the tenure of the tenancy, or control the intendment of the law concerning the same,

Now will I answer the cases, which give some shadow on the contrary side, and shew they have their particular reasons, and do not impugn our case.

First, if the king have land by attainder of treason, and grant the land to be held of himself, and of other lords, this is no new tenure per normam legis communis; but the old tenure per normam statuti, which taketh away the intendment of the common law; for the statute directeth it so, and otherwise the king shall do a wrong.

So if the king grant land parcel of the demesne of a manor tenendum de nobis, or reserving no tenure at all, this is the tenure of the manor or of the honour, and not in capite for here the more vehement presumption controlleth the less; for the law doth presume the king hath no intent to dismember it from the manor, and so to lose his court and the perquisites.

25 H. 6. f. So if the king grant land tenendum by a rose pro omnibus servitiis: this is not like the cases of the absque aliquo inde reddendo, or as free as the crown: for pro omnibus servitiis shall be intended for all express service whereas fealty is incident, and passeth tacit, and so it is no impossible or repugnant reservation.

moigne.

The case of the frankalmoinge, I mean the case This is no where the king grants lands of the Templers to J. S, frankalto hold as the Templers did, which cannot be frank. almoigne; and yet hath been ruled to be no tenure by knight's service in capite, but only a socage tenure, is Wood's easily answered; for that the frankalmoigne is but a species of a tenure in socage with a privilege, so the privilege ceaseth, and the tenure remains.

To conclude therefore, I sum up my arguments thus. My major is, where calamus legis doth write the tenure, it is knight's service in capite. My minor is, this tenure is left to the law; ergo this tenure is in capite.

For the second point, I will first speak of it according to the rules of the common law, and then upon statutes of the dutchy.

First I do grant, that where a seigniory and a ter nancy, or a rent and land, or trees and land, or the like primitive and secondary interest are conjoined in one person, yea though it be in autre droit; yet if it be of like perdurable estate, they are so extinct, as by act in law they may be revived, but by grant they cannot.

For if a man have a seigniory in his own right, and the land descend to his wife, and his wife dieth without issue, the seigniory is revived; but if he will make a feoffment in fee, saving his rent, he cannot do it. But there is a great difference, and let it be well observed, between autre capacitie and autre droit; for in case of autre capacitie the interests are contigua and not continua, conjoined, but not confounded. And therefore if the master of an hospital have a seigniory, and the mayor and commonalty of St. Albans have a tenancy, and the master of the hospital be made mayor, and the mayor grant away the tenancy under the seal of the mayor and commonalty, the seigniory of the hospital is revived.

So between natural capacity and politic, if a man have a seigniory to him and his heirs, and a bishop is tenant, and the lord is made bishop, and the bishop before the statute grants away the land under the chapter's seal, the seigniory is revived.

case.

The same reason is between the capacity of the crown and the capacity of the dutchy, which is in the king's natural capacity, though illustrated with some privileges of the crown; if the king have the seigniory in the right of his crown, and the tenancy in the right of the dutchy, as our case is, and make a feoffment of the tenancy, the tenure must be revived; and this is by the ground of the common law. But the case is the more strong by reason of the statute of 1 H. IV. 3 H. V. and 1 H. VII. of the dutchy, by which the dutchy-seal is enabled to pass lands of the. dutchy, but no ways to touch the crown: and whether the king be in actual possession of the thing that should pass, or have only a right, or a condition, or a thing in suspense, as our case is, all is one; for that seal will not extinguish so much as a spark of that which is in the right of the crown; and so a plain revivor.

And if it be said that a mischief will follow; for that upon every dutchy patent men shall not know how to. hold, because men must go back to the ancient tenure, and not rest in the tenure limited: for this mischief there grows an easy remedy, which likewise is now in use, which is to take both seals, and then all is safe.

Secondly, as the king cannot under the dutchy-seal grant away his ancient seigniory in the right of his crown; so he cannot make any new reservation by that seal, and so of necessity it falleth to the law to make the tenure: for every reservation must be of the nature of that that passeth, as a dean and chapter cannot grant land of the chapter, and reserve a rent to the dean and his heirs, nor e converso: nor no more can the king grant land of the dutchy under that seal and reserve a tenure to the crown: and therefore it is warily put in the end of the case of the dutchy in the commentaries, where it is said, if the king make a feoffment of the dutchy land, the feoffee thall hold in capite; but not a word of that it should be by way of express reservation, but upon a feoffment simply, the law shall work it and supply it.

4

To conclude, there is direct authority in the point, but that it is via versa; and it was the bishop of Sa-

lisbury's case: The king had in the right of the dutchy a rent issuing out of land, which was monastery land, which he had in the right of the crown, and granted away the land under the great seal to the bishop; and yet nevertheless the rent continued to the dutchy, and so upon great and grave advice it was in the dutchy decreed: so as your lordship seeth, whether you take the tenure of the tenancy, or the tenure of the manor, this land must be held in capite. And therefore, etc.

THE

CASE

OF

REVOCATION OF USES.

IN THE KING'S BENCH.

The Case shortly put, without names or dates more than of necessity, is this.

SIR John Stanhope conveys the manor of Burroughash to his lady for part of her jointure, and intending, as is manifest, not to restrain himself, nor his son, from disposing some proportion of that land according to their occasions, so as my lady were at no loss by the exchange, inserteth into the conveyance a power of revocation and alteration in this manner: provided that it shall be lawful for himself and his son successively to alter and make void the uses, and to limit and appoint new uses, so it exceed not the value of 20%. to be computed after the rents then answered: and that immediately after such declaration, or making void, the feoffees shall stand seised to such new uses: Ita quod he or his son, within six months after such declaration, or making void, shall assure, within the same town, tantum terrarum et tenementorum, et similis valoris, as were so revoked, to the uses expressed in the first conveyance.

Sir John Stanhope his son revokes the land in Burrough-ash, and other parcels not exceeding the value of 20%. and within six month assures to my lady and to the former uses Burton-joice and other lands; and the jury have found that the lands revoked contain twice so much in number of acres, and twice so much in yearly value, as the new lands, but yet that the new lands are rented at 217. and find the lands of Burrough