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branches: first, I say, where there is no tenure reserved, the law createth a tenure in capite; secondly, where the tenure is uncertain; thirdly, where the tenure reserved is impossible or repugnant to law; and lastly, where a tenure once created is afterwards extinct.

Per Prisot

f. 7. 8 H. 7. f. 3. b.

For the first, if the king give lands in fine 33 H. 6. and say nothing of the tenure; this is a tenure in capite; nay, if the king give whiteacre, and blackacre, and reserves a tenure only of whiteacre, and that a tenure expressed to be in socage; yet you shall not for fellowship' sake, because they are in one patent, intend the like tenure of blackacre; but that shall be held in capite.

So if the king grant land, held as of a manor, with warranty, and a special clause of recompence, and the tenant be impleaded, and recover in value, this land shall be held in capite, and not of the manor.

So if the king exchange the manor of Dale for the manor of Sale, which is held in socage, although it be by the word excambium; yet that goeth to equality of the state, not of the tenure, and the manor of Dale, if no tenure be expressed, shall be held in capite. So much for silence of tenure.

For the second branch, which is incertainty of tenure; first, where an ignoramus is found by office, this by the common law is a tenure in capite, which is most for the king's benefit; and the presumption of law is so strong, that it amounts to a direct finding 5 Mar. Dyer. or affirmative, and the party shall have 14 Eliz. Dyer. a negative or traverse, which is somewhat strange to a thing indefinite.

306.

So if in ancient time, one held of the king, as of a manor by knight's service, and the land return to the king by attainder, and then the king granteth it "tenend' per fidelitatem tantum," and it returneth the second time to the king, and the

Austin's office. king granteth it “ per servitia antehac

consueta ;" now because of the incertainty neither service shall take place, and the tenure shall be in capite, as was the opinion of you, my lord chief justice, where you were commissioner to find an office after Austin's death.

So if the king grant land“ tenend' de manerio de East Greenwich vel de honore de Hampton;" this is void for the non-certainty, and shall be held of the king in capite.

33 H. 9. f. 7.

For the third branch, if the king limit land to be discharged of tenure, as "absque aliquo inde reddendo," this is a tenure in capite; and yet if one should go to the next, ad proximum, it should be a socage, for the least is next to none at all: but you may not take the king's grant by argument; but where they cannot take place effectually and punctually, as they are expressed, there you shall resort wholly to the judgment of the law. So if the king grant land "tenend' si 14 H. 6. f. 12. frankment come il en son corone," this is a tenure in capite.

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4 et 5 P. M.

Thus much for my major proposition; now for the minor, or the assumption, it is this: first, that the land in question is discharged of tenure by the purchase of the manor; then that the reservation of the service upon the manor cannot possibly inure to the tenancy; and then if a corruption be of the first tenure, and no generation of the new; then cometh in the tenure per normam legis, which is in capite.

And the course of my proof shall be ab enumeratione partium, which is one of the clearest and most forcible kinds of argument.

If this parcel of land be held by fealty and rent tantum, either it is the old fealty before the purchase of the manor, or it is the new fealty reserved and expressed upon the grant of the manor; or it is a new fealty raised by intendment of law in conformity and congruity of the fealty reserved upon the manor; but none of these, ergo, &c.

That it should be the old fealty, is void of sense; for it is not ad eosdem terminos. The first fealty was between the tenancy and the manor, that tenure is by the unity extinct. Secondly, that was a tenure of a manor, this is a tenure in gross. Thirdly, the rent of 26. 10s. must needs be new, and will you have a new rent with an old fealty? These things are portenta in lege; nay I demand, if the tenure of the tenancy, Low's tenure, had been by knight's service, would you have said that had remained? No, but that it was altered by the new reservation; ergo, no colour of the old fealty.

That it cannot be the new fealty is also manifest; for the new reservation is upon the manor, and this is no part of the manor: for if it had escheated to the king in an ordinary escheat, or come to him upon a mortmain, in these cases it had come in lieu of the seigniory, and been parcel of the manor, and so within the reservation, but clearly not upon a purchase in fact.

Again, the reservation cannot inure, but upon that which is granted; and this tenancy was never grant

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King Edw. VI. grants a manor, rendering 947. rent in fee farm tenendum de East Greenwich in socage; and after, queen Mary granteth these rents amongst other things tenendum in capite, and the grantee released to the heir of the tenant; yet the rent shall be in esse, as to the king, but the land, saith the book, shall be deviseable by the statute for the whole, as not held in capite.

And so the case of the honour of 25 Ass. pl. 60. Pickeringe, where the king granted the bailywick rendering rent: and after granted the honour, and the bailywick became forfeited, and the grantee took forfeiture thereof, whereby it was extinct; yet the rent remaineth as to the king out of the baily wick extinct.

These two cases partly make not against us, and partly make for us there be two differences that avoid them. First, there the tenures or rents are in esse in those cases for the king's benefit, and here they should be in esse to the king's prejudice, who should otherwise have a more beneficial tenure. Again, in these cases the first reservation was of a thing in esse, at the time of the reservation; and then there is no reason the act subsequent of the king's tenant should prejudice the king's interest once vested and settled: but here the reservation was never good, because it is out of a thing extinct in the instant.

But the plain reason which turneth Carr's case mainly for us, is; for that where the tenure is of a rent or seigniory, which is afterwards drowned or extinct in the land; yet the law judgeth the same rent or seigniory to be in esse, as to support the tenure: but of what? Only of the same rent or seigniory, and never of the land itself; for the land shall be held by the same tenure it was before. And so is the rule of Carr's case, where it is adjudged, that though the rent be held in capite, yet the land was nevertheless deviseable for the whole, as no ways charged with that tenure.

Why then, in our case, let the fealty be reserved out of the seigniory extinct, yet that toucheth not at all the land: and then of necessity the land must be also held; and therefore you must seek out a new tenure for the land, and that must be in capite.

And let this be noted once for all, that our case is not like the common cases of a menalty extinct, where the tenant shall hold of the lord, as the mean held before; as where the menalty is granted to the tenant, or where the tenancy is granted to the mean, or where the menalty descendeth to the tenant, or where the menalty is forejudged. In all these cases the tenancy, I grant, is held as the menalty was held before, and the difference is because there was an old seigniory in being; which remaineth untouched

and unaltered, save that it is drawn a degree nearer to the land, so as there is no question in the world of a new tenure; but in our case there was no lord paramount, for the manor itself was in the crown, and not held at all, nor no seigniory of the manor ia esse; so as the question is wholly upon the creation of a new seigniory, and not upon the continuance of an old.

For the third course, that the law should create a 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 show 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 expressum servitium regat, vel declaret tacitum." No more shall you in our case imply that the express tenure reserved upon the manor shall govern or declare the tenure of the tenancy, or control the intendment of law concerning the same.

Now will I answer the cases, which give some shadow on the contrary side, and show 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 a 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.

So if the king grant land tenendum 25 H. 6. f. 56. 9 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.

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thus. My major is, where calamus legis doth write | the duchy, by which the duchy-seal is enabled to the tenure, it is knight's service in capite. My pass lands of the duchy, but no ways to touch the minor is, this tenure is left to the law; ergo this crown and whether the king be in actual possestenure is in capite. sion 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.

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

First I do grant, that where a seigniory and a tenancy, 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. Alban's 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.

The same reason is between the capacity of the crown and the capacity of the duchy, 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 duchy, 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

And if it be said that a mischief will follow; for that upon every duchy 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 duchyseal 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 duchy under that seal, and reserve a tenure to the crown and therefore it is warily put in the end of the case of the duchy in the commentaries, where it is said, if the king make a feoffment of the duchy land, the feoffee shall 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.

To conclude, there is direct authority in the point, but that it is via versa; and it was the bishop of Salisbury's case: The king had in the right of the duchy 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 duchy, and so upon great and grave advice it was in the duchy 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, &c.

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 Burrough-ash 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 201. to be computed after the rents

then answered: and that immediately after such de- | is void, not in tanto, but in toto. Of the first of claration, or making void, the feoffees shall stand them I will give four reasons. 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 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 months 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-ash, now out of lease formerly made and that no notice of this new assurance was given before the ejectment, but only that Sir John Stanhope had by word told his mother, that such an assurance was made, not showing or delivering the deed.

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The question is, Whether Burrough-ash be well revoked? Which question divides itself into three points.

First, whether the ita quod be a void and idle clause? for if so, then there needs no new assurance, but the revocation is absolute per se.

The next is, if it be an effectual clause, whether it be pursued or no? wherein the question will rest, whether the value of the re-assured lands shall be only computed by rents?

And the third is, if in other points it should be well pursued, yet whether the revocation can work until a sufficient notice of the new assurance ?

And I shall prove plainly, that ita quod stands well with the power of revocation; and if it should fall to the ground, it draws all the rest of the clause with it, and makes the whole void, and cannot be void alone by itself.

I shall prove likewise that the value must needs be accounted not a tale value, or an arithmetical value by the rent, but a true value in quantity and quality. And lastly, that a notice is of necessity, as this case is.

I will not deny, but it is a great power of wit to make clear things doubtful; but it is the true use of wit to make doubtful things clear, or at least to maintain things that are clear, to be clear, as they are. And in that kind I conceive my labour will be in this case, which I hold to be a case rather of novelty than difficulty, and therefore may require argument, but will not endure much argument: but to speak plainly to my understanding, as the case hath no equity in it, I might say piety, so it hath no great doubt in law.

First, therefore, this it is, that I affirm, that the clause, so that, ita quod, containing the recompence governs the clause precedent of the power, and that it makes it wait and expect otherwise than as by way of inception, but the effect and operation is suspended, till that part also be performed and if otherwise, then I say plainly, you shall not construe by fractions; but the whole clause and power

The first reason is, that the wisdom of the law useth to transpose words according to the sense; and not so much to respect how the words do take place, but how the acts, which are guided by those words, may take place.

Hill and Graunger's case, com f. 171.

Hill and Graunger's case comment. 171. A man in August makes a lease rendering 101. rent yearly to be paid at the feast of Annunciation and Michaelmas; these words shall be inverted by law, as if they had been set thus, at Michaelmas and the Annunciation: for else he cannot have a rent yearly; for there will be fourteen months to the first year. Fitz-Williams's case, 2 Jac. Co. p. 6,

Fitz-Williams*

case, 2 Jac Co. p. 6. f. 33.

f. 33, it was contained in an indenture of uses, that Sir William Fitz-Williams should have power to alter and change, revoke, determine, and make void the uses limited the words are placed disorderly; for it is in nature first to determine the uses, and after to change them by limitation of new. But the chief question being in the book, whether it might be done by the same deed; it is admitted and thought not worth the speaking to, that the law shall marshal the acts against the order of the words, that is, first to make void, then to limit.

So if I convey land and covenant with you to make farther assurance, so that you require it of me, there though the request be placed last, yet it must be acted first.

So if I let land to you for a term, and say farther, it shall be lawful for you to take twenty timber-trees to erect a new tenement upon the land, so that my bailiff do assign you where you shall take them; here the assignment, though last placed, must precede. And therefore the grammarians do infer well upon the word period, which is a full and complete clause or sentence, that it is "complexus orationis circularis:" for as in a circle there is not prius nor posterius, so in one sentence you shall not respect the placing of words; but though the words lie in length, yet the sense is round, so as "prima erunt novissima, et novissima prima." For though you cannot speak all at once so, yet you must construe and judge upon all at once.

To apply this; I say these words, so that, though "loco et textu posteriora," yet they be "potestate et sensu priora:" as if they had been penned thus, that it shall be lawful for Sir Thomas Stanhope, so that he assure lands, &c. to revoke; and what difference between, so that he assure, he may revoke; or, he may revoke, so that he assure: for you must either make the so that to be precedent or void, as I shall tell you anon. And therefore the law will rather invert the words, than pervert the sense.

But it will be said, that in the cases I put, it is left indefinite, when the act last limited shall be performed; and so the law may marshal it, as it may stand with possibility; and so if it had been in this case no more but, so that Sir Thomas or John should assure new lands, and no time spoken of, the law might have intended it precedent. But in this ease

it is precisely put to be at any time within six | rated into the nature and essence of the authority months after the declaration, and therefore you cannot vary in the times.

To this I answer, that the new assurance must be in deed in time after the instrument or deed of the declaration; but on the other side, it must be time precedent to the operation of the law, by determining the uses thereupon: so as it is not to be applied so much to the declaration itself, but to the warrant of the declaration. It shall be lawful, so that, &c. And this will appear more plainly by my second reason, to which now I come; for as for the cavillation upon the word immediately, I will speak to it after.

My second reason therefore is out of the use and signification of this conjunction or bond of speech, so that for no man will make any great doubt of it, if the words had been si, if Sir Thomas shall within six months of such declaration convey; but that it must have been intended precedent; yet if you mark it well, these words ita quod and si, howsoever in propriety the ita quod may seem subsequent, and the si precedent, yet they both bow to the sense.

4 E. 6. Pl. Com. Colthurst's case.

Digg's case. 42 Eliz. Co. P. 1. f. 173.

For

So we see in 4 Edw. VI. Colthurst's case, a man leaseth to J. S. a house, "si ipse vellet habitare, et residens esse;" there the word si amounts to a condition subsequent; for he could not be resident before he took the state; and so via versa may ita quod be precedent, for else it must be idle or void. But I go farther, for I say ita quod, though it be good words of condition, yet more properly it is neither condition, precedent, nor subsequent, but rather a qualification, or form, or adherent to the acts, whereto it is joined, and made part of their essence, which will appear evidently by other cases. allow it had been thus, so that the deed of declaration be enrolled within six months, this is all one, as by deed enrolled within six months, as it is said in Digg's case 42 Eliz. f. 173, that by deed indented to be enrolled is all one with deed indented and enrolled. It is but a modus faciendi, a description, and of the same nature is the ita quod: so if it had been thus, it shall be lawful for Sir Thomas to declare, so that the declaration be with the consent of my lord chief justice, is it not all one with the more compendious form of penning, that Sir Thomas shall declare with the consent of my lord chief justice? And if it had been thus, so that Sir John within six months after such declaration shall obtain the consent of my lord chief justice, should not the uses have expected? But these you will say are forms and circumstances annexed to the conveyance required: why surely any collateral matter coupled by the ita quod is as strong? If the ita quod had been, that Sir John Stanhope within six months should have paid my lady 1000. or entered into bond never more to disturb her, or the like, all these make but one entire idea or notion, how that his power should not be categorical, or simple at pleasure, but hypothetical, and qualified, and restrained, that is to say, not the one without the other, and they are parts incorpo

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itself.

The third reason is the justice of the law in taking words so, as no material part of the parties' intent perish: for, as one saith, "præstat torquere verba quam homines," better wrest words out of place, than my lady Stanhope out of her jointure, that was meant to her. And therefore it is elegantly said in | Fitz-Williams's case, which I vouched before, though words be contradictory, and, to use the phrase of the book, "pugnant tanquam ex diametro;" yet the law delighteth to make atonement, as well between words as between parties, and will reconcile them so as they may stand, and abhorreth a vacuum, as well as nature abhorreth it; and as nature to avoid a vacuum will draw substances contrary to their propriety, so will the law draw words. Therefore saith Littleton, if I make a feoffment reddendo rent to a stranger, this is a condition to the feoffor, rather than it shall be void, which is quite cross; it sounds a rent, it works a condition, it is limited to a third person, it inureth to the feoffor; and yet the law favoureth not conditions, but to avoid a vacuum. So in the case of 45 E. III. a man gives land in frank-marriage, the remainder in fee. The frank-marriage is first put, and that can be but by tenure of the donor; yet rather than the remainder should be void, though it be last placed, the frank-marriage being but a privilege of estate shall be destroyed.

45 E. 3.

So 33 H. VI. Tressham's case: the king granteth a wardship, before it fall; good, because it cannot inure by covenant, and if it should not be good by plea, as the book terms it, it were void; so that, no, not in the king's case, the law will not admit words to be void.

So then the intent appears most plainly, that this act of Sir John should be actus geminus, a kind of twine to take back, and to give back, and to make an exchange, and not a resumption; and therefore upon a conceit of repugnancy, to take the one part, which is the privation of my lady's jointure, and not the other, which is the restitution or compensation, were a thing utterly injurious in matter, and absurd in construction.

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The fourth reason is out of the nature of the conveyance, which is by way of use, and therefore ought to be construed more favourably according to the intent, and not literally or strictly for although it be said in Frene and Dillon's case, and in FitzWilliams's case, that it is safe so to construe the statute of 27 H. VIII. as that uses may be made subject to the rules of the common law, which the professors of the law do know, and not leave them to be extravagant and irregular; yet if the late authorities be well marked, and the reason of them, you shall find this difference, that uses in point of operation are reduced to a kind of conformity with the rules of the common law, but that in point of exposition of words, they retain somewhat of their ancient nature, and are expounded more liberally according to the intent; for with that part the statute of 27 doth not meddle. And therefore if the question be, whether a bargain and sale upon con

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