Page images

Per Prisol

3. b.

f. 13.

1 E. 3. f. 4.

no law.

branches: first, I say, where there is no tenure So if land be given to hold by impossible service, reserved, the law createth a tenure in capile; se- as by performing the office of the sheriff of Yorkcondly, where the tenure is uncertain ; thirdly, shire, which no man can do but the sheriff, and where the tenure reserved is impossible or repug- fealty for all service, this is a tenure in capite. nant to law; and lastly, where a tenure once created For the fourth branch, which cometh nearest to is afterwards extinct.

our case; let us see where a seigniory was once, For the first, if the king give lands and is after extinguished; this may be in two manin fine 33 H. 6. and say nothing of the tenure; this is ners, by release in fact, or by unity of possession, 17.8 H. 7. f.

a tenure in capite ; nay, if the king which is a release or discharge in law.
give whiteacre, and blackacre, and re- And therefore let the case be, that

Vide 30 H. 8. serves a tenure only of whiteacre, and that a tenure the king releaseth to his tenant that Dyer. 8 H. 7. expressed to be in socage ; yet you shall not for holds of him in socage ; this release is fellowship’ sake, because they are in one patent, in- good, and the tenant shall hold now in capite, for tend the like tenure of blackacre; but that shall be the former tenure being discharged, the tenure in held in capite.

law ariseth. So if the king grant land, held as of a manor, with So the case, which is in 1 E. III. a warranty, and a special clause of recompence, and fine is levied to J. S. in tail, the re

fine accept. the tenant be impleaded, and recover in value, this mainder ouster to the king, the state tail land shall be held in capite, and not of the manor. shall be held in capite, and the first tenancy, if it

So if the king exchange the manor of Dale for were in socage, by the unity of the tenancy, shall the manor of Sale, which is held in socage, although be discharged, and a new raised thereupon: and it be by the word excambium; yet that goeth to therefore the opinion, or rather the query in Dyer equality of the state, not of the tenure, and the manor of Dale, if no tenure be expressed, shall be held Thus much for my major proposi

4 et 5 P. M. in capite. So much for silence of tenure.

tion; now for the minor, or the assumpFor the second branch, which is incertainty of tion, it is this: first, that the land in question is distenure; first, where an ignoramus is found by office, charged of tenure by the purchase of the manor ; this by the common law is a tenure in capite, which then that the reservation of the service upon the is most for the king's benefit; and the presumption manor cannot possibly inure to the tenancy; and of law is so strong, that it amounts to a direct finding then if a corruption be of the first tenure, and no 5 Mar. Dyer.

or affirmative, and the party shall have generation of the new; then cometh in the tenure 14 Eliz. Dyer. a negative or traverse, which is some- per normam legis, which is in capite.

what strange to a thing indefinite. And the course of my proof shall be ab enumeraSo if in ancient time, one held of the king, as oftione partium, which is one of the clearest and most a manor by knight's service, and the land return to forcible kinds of argument. the king by attainder, and then the king granteth it If this parcel of land be held by fealty and rent “ tenend' per fidelitatem tantum,” and it returneth tantum, either it is the old fealty before the purchase

the second time to the king, and the of the manor, or it is the new fealty reserved and Austin's office.

king granteth it “per servitia antehac expressed upon the grant of the manor; or it is a consueta ;” now because of the incertainty neither new fealty raised by intendment of law in conformity service shall take place, and the tenure shall be in and congruity of the fealty reserved upon the macapite, as was the opinion of you, my lord chief nor; but none of these, ergo, &c. justice, where you were commissioner to find an That it should be the old fealty, is void of sense ; office after Austin's death.

for it is not ad eosdem terminos. The first fealty So if the king grant land“ tenend' de manerio de was between the tenancy and the manor, that tenure East Greenwich vel de honore de Hampton;" this is by the unity extinct. Secondly, that was a tenure is void for the non-certainty, and shall be held of of a manor, this is a tenure in gross. Thirdly, the the king in capite.

rent of 261. 10s. must needs be new, and will you For the third branch, if the king have a new rent with an old fealty ? These things 33 H. 9. 1.7.

limit land to be discharged of tenure, are portenta in lege; nay I demand, if the tenure as "absque aliquo inde reddendo," this is a tenure of the tenancy, Low's tenure, had been by knight's in capite; and yet if one should go to the next, ad service, would you have said that had remained ? proximum, it should be a socage, for the least is next No, but that it was altered by the new reservation ; to none at all: but you may not take the king's grant ergo, no colour of the old fealty. by argument; but where they cannot take place effec- That it cannot be the new fealty is also manifest; tually and punctually, as they are expressed, there for the new reservation is upon the manor, and this you shall resort wholly to the judgment of the law. is no part of the manor : for if it had escheated to

So if the king grant land “tenend' si the king in an ordinary escheat, or come to him 14 H. 6. f. 12.

frankment come il en son corone,” this upon a mortmain, in these cases it had come in lieu is a tenure in capite.

of the seigniory, and been parcel of the manor, and If land be given to be held of a lord- so within the reservation, but clearly not upon a Mereseild's

ship not capable, as of Salisbury plain, purchase in fact.

or a corporation not in esse, or of the Again, the reservation cannot inure, but upon that manor of a subject, this is a tenure in capite. which is granted ; and this tenancy was never granta


[ocr errors]



2 s


Lib. 3. f. 30.

ed, but was in the tenant before ; and therefore no and unaltered, save that it is drawn a degree nearer colour it should come under the reservation. But to the land, so as there is no question in the world if it be said, that nevertheless the seigniory of that of a new tenure ; but in our case there was no lord tenancy was parcel of the manor, and is also granted; paramount, for the manor itself was in the crown, and although it be extinct in substance, yet it may and not held at all, nor no seigniory of the manor in

be in esse 9 Eliz. Coke,

as to the king's service: esse ; so as the question is wholly upon the creation this deserveth answer : for this asser- of a new seigniory, and not upon the continuance of

tion may be colourably inferred out of an old. Carr's case.

For the third course, that the law should create a King Edw. VI. grants a manor, rendering 941. new distinct tenure by fealty of this parcel, guided rent in fee farm tenendum de East Greenwich in by the express tenure upon the manor; it is the socage; and after, queen Mary granteth these rents probablest course of the three : but yet if the former amongst other things tenendum in capite, and the authorities I have alleged be well understood and grantee released to the heir of the tenant ; yet the marked, they show the law plainly, that it cannot rent shall be in esse, as to the king, but the land, be ; for you shall ever take the king's grant ad idem, saith the book, shall be deviseable by the statute for and not ad simile, or ad proximum ; no more than the whole, as not held in capite.

in the case of the absque aliquo reddendo, or as free And so the case of the honour of as the crown: who would not say that in those cases 25 Ass. pl. 60.

Pickeringe, where the king granted the it should amount to a socage tenure ? for minimum bailywick rendering rent: and after granted the est nihilo proximum; and yet they are tenures by honour, and the bailywick became forfeited, and the knight's service in capite. So if the king by one grantee took forfeiture thereof, whereby it was ex- patent pass two acres, and a fealty reserved but upon tinct; yet the rent remaineth as to the king out of the one of them, you shall not resort to this " ut the bailywick extinct.

expressum servitium regat, vel declaret tacitum." These two cases partly make not against us, and No more shall you in our case imply that the espartly make for us : there be two differences that press tenure reserved upon the manor shall govern avoid them. First, there the tenures or rents are in or declare the tenure of the tenancy, or control the esse in those cases for the king's benefit, and here intendment of law concerning the same. they should be in esse to the king's prejudice, who Now will I answer the cases, which give some should otherwise have a more beneficial tenure. shadow on the contrary side, and show they have Again, in these cases the first reservation was of a their particular reasons, and do not impugn our case. thing in esse, at the time of the reservation ; and First, if the king have land by attainder of treathen there is no reason the act subsequent of the son, and grant the land to be held of himself, and king's tenant should prejudice the king's interest of other lords, this is no new tenure per norman once vested and settled: but here the reservation legis communis ; but the old tenure per normam siawas never good, because it is out of a thing extinct tuti, which taketh away the intendment of the comin the instant.

mon law; for the statute directeth it so, and othe:But the plain reason which turneth Carr's case wise the king shall do a wrong. mainly for us, is; for that where the tenure is of a So if the king grant land parcel of the demesne rent or seigniory, which is afterwards drowned or of a manor tenendum de nobis, or reserving do extinct in the land; yet the law judgeth the same tenure at all, this is a tenure of the manor or of the rent or seigniory to be in esse, as to support the honour, and not in capite : for here the more vehetenure : but of what? Only of the same rent or ment presumption controlleth the less; for the law seigniory, and never of the land itself; for the land doth presume the king hath no intent to dismember shall be held by the same tenure it was before. it from the manor, and so to lose his court and the And so is the rule of Carr's case, where it is ad- perquisites. judged, that though the rent be held in capite, yet So if the king grant land tenendum

25 H. 6. 1 569 the land was nevertheless deviseable for the whole, by a rose pro omnibus servitiis ; this is as no ways charged with that tenure.

not like the cases of the absque aliquo inde reddenda Why then, in our case, let the fealty be reserved or as free as the crown: for pro omnibus serritiis out of the seigniory extinct, yet that toucheth not at shall be intended for all express service: whereas all the land : and then of necessity the land must be fealty is incident, and passeth tacit, and so it is no also held; and therefore you must seek out a new impossible or repugnant reservation. tenure for the land, and that must be in capite. The case of the frankalmoigne, I mean

And let this be noted once for all, that our case the case where the king grants lands is not like the common cases of a menalty extinct, of the Templers to J. S. to hold as the where the tenant shall hold of the lord, as the mean Templers did, which cannot be frankalmoigne ; anul held before ; as where the menalty is granted to the yet hath en ruled to be no tenure

Wood's case. tenant, or where the tenancy is granted to the mean, by knight's service in capite, but only or where the menalty descendeth to the tenant, or a socage tenure, is easily answered; for that the where the menalty is forejudged. In all these cases | frankalmoigne is but a species of a tenure in socage the tenancy, I grant, is held as the menalty was held with a privilege, so the privilege ceaseth, and the before, and the difference is because there was an tenure remains. old seigniory in being; which remaineth untouched To conclude therefore, I sum up my arguments

'This is no frankal. moi nie

[ocr errors]


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 For the second point, I will first speak of it ac-right, or a condition, or a thing in suspense, as our cording to the rules of the common law, and then case is, all is one; for that seal will not extinguish upon the statutes of the duchy.

so much as a spark of that which is in the right of First I do grant, that where a seigniory and a the crown; and so a plain revivor. tenancy, or a rent and land, or trees and land, or And if it be said that a mischief will follow; for the like primitive and secondary interest, are con- that upon every duchy patent men shall not know joined in one person, yea though it be in autre droit ; how to hold, because men must go back to the anyet if it be of like perdurable estate, they are so cient tenure, and not rest in the tenure limited: for extinct, as by act in law they may be revived, but this mischief there grows an easy remedy, which by grant they cannot.

likewise is now in use, which is to take both seals, For if a man have a seigniory in his own right, and then all is safe. and the land descend to his wife, and his wife dieth Secondly, as the king cannot under the duchywithout issue, the seigniory is revived; but if he seal grant away his ancient seigniory in the right will make a feoffment in fee, saving his rent, he of his crown; so he cannot make any new reservcannot do it. But there is a great difference, andation by that seal, and so of necessity it falleth to let it be well observed, between autre capacitie, and the law to make the tenure: for every reservation autre droit; for in case of autre capacitie the inte must be of the nature of that that passeth, as a dean rests are contigua, and not continua, conjoined, but and chapter cannot grant land of the chapter, and not confounded. And therefore if the master of an reserve a rent to the dean and his heirs, nor e conhospital have a seigniory, and the mayor and com- verso: nor no more can the king grant land of the monalty of St. Alban's have a tenancy, and the duchy under that seal, and reserve a tenure to the master of the hospital be made mayor, and the crown: and therefore it is warily put in the end of mayor grant away the tenancy under the seal of the the case of the duchy in the commentaries, where it mayor and commonalty, the seigniory of the hospital is said, if the king make a feoffment of the duchy is revived.

land, the fcoffee shall hold in capite ; but not a So between natural capacity and politic, if a man word of that it should be by way of express reservhave a seigniory to him and his heirs, and a bishop ation, but upon a feoffment simply, the law shall is tenant, and the lord is made bishop, and the work it and supply it. bishop before the statute grants away the land un- To conclude, there is direct authority in the point, der the chapter's seal, the seigniory is revived. but that it is via versa ; and it was the bishop of

The same reason is between the capacity of the Salisbury's case: The king had in the right of the crown and the capacity of the duchy, which is in duchy a rent issuing out of land, which was monasthe king's natural capacity, though illustrated with tеry land, which he had in the right of the crown, some privileges of the crown; if the king have the and granted away the land under the great seal to seigniory in the right of his crown, and the tenancy the bishop; and yet nevertheless the rent continued in the right of the duchy, as our case is, and make to the duchy, and so upon great and grave advice it a feoffment of the tenancy, the tenure must be re- was in the duchy decreed: so as your lordship seeth, vived ; and this is by the ground of the common whether you take the tenure of the tenancy, or the law. But the case is the more strong by reason of tenure of the manor, this land must be held in cathe statute of 1 H. IV. 3 H. V. and i H. VII. of pite. And therefore, &c.






The Case shortly put, without names or dates more

according to their occasions, so as my lady were at than of necessity, is this.

no loss by the exchange, inserteth into the convey

ance a power of revocation and alteration in this Sir John Stanhope conveys the manor of Bur- manner; provided that it shall be lawful for himself rough-ash to his lady for part of her jointure, and and his son successively to alter and make void the intending, as is manifest, not to restrain himself, nor uses, and to limit and appoint new uses, so it cxceed his son, from disposing some proportion of that land not the value of 201. to be computed after the rents

case, com f. 171.

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 quiod he or his son, The first reason is, that the wisdom of the law within six months after such declaration, or making useth to transpose words according to the sense; and void, shall assure, within the same town, “ tantum not so much to respect how the words do take place, terrarum, et tenementorum, et similis valoris," as but how the acts, which are guided by those words, were revoked, to the uses expressed in the first may take place. conveyance.

Hill and Graunger's case comment.

Hill and Sir John Stanhope his son revokes the land in 171. A man in August makes a lease

Graunger's Burrough-ash, and other parcels not exceeding the rendering 101. rent yearly to be paid value of 201, and within six months assures to my at the feast of Annunciation and Milady and to the former uses Burton-joice and other chaelmas; these words shall be inverted by law, as lands; and the jury have found that the lands re- if they had been set thus, at Michaelmas and the voked contain twice so much in number of acres, Annunciation: for else he cannot have a rent yearly; and twice so much in yearly value as the new lands, for there will be fourteen months to the first year. but yet that the new lands are rented at 211. and find Fitz-Williams's case, 2 Jac. Co. p. 6, Fitz. Williams the lands of Burrough-ash, now out of lease formerly f. 33, it was contained in an indenture case, 2 Jac

Co. p. 6. f 33 made : and that no notice of this new assurance was of uses, that Sir William Fitz-Williams given before the ejectment, but only that Sir John should have power to alter and change, revoke, deStanhope had by word told his mother, that such termine, and make void the uses limited : the words an assurance was made, not showing or delivering are placed disorderly; for it is in nature first to de the deed.

termine the uses, and after to change them by limitThe question is, Whether Burrough-ash be well ation of new. But the chief question being in the

revoked? Which question divides itself into book, whether it might be done by the same deed; three points.

it is admitted and thought not worth the speaking First, whether the ita quod be a void and idle to, that the law shall marshal the acts against the clause ? for if so, then there needs no new assurance, order of the words, that is, first to make void, then but the revocation is absolute per se.

to limit. The next is, if it be an effectual clause, whether So if I convey land and covenant with you to it be pursued or no? wherein the question will rest, make farther assurance, so that you require it of me, whether the value of the re-assured lands shall be there though the request be placed last, yet it must only computed by rents ?

be acted first. And the third is, if in other points it should be So if I let land to you for a term, and say farther, well pursued, yet whether the revocation can work it shall be lawful for you to take twenty timber-trees until a sufficient notice of the new assurance ? to erect a new tenement upon the land, so that my

And I shall prove plainly, that ita quod stands bailiff do assign you where you shall take them ; well with the power of revocation ; and if it should here the assignment, though last placed, must prefall to the ground, it draws all the rest of the clause cede. And therefore the grammarians do infer well with it, and makes the whole void, and cannot be upon the word period, which is a full and complete void alone by itself.

clause or sentence, that it is "complexus orationis I shall prove likewise that the value must needs circularis :" for as in a circle there is not prius nor be accounted not a tale value, or an arithmetical value posterius, so in one sentence you shall not respect by the rent, but a true value in quantity and quality. the placing of words ; but though the words lie in

And lastly, that a notice is of necessity, as this length, yet the sense is round, so as " prima erunt case is.

novissima, et novissima prima." For though you I will not deny, but it is a great power of wit cannot speak all at once so, yet you must construe to make clear things doubtful ; but it is the true use


and judge upon all at once. of wit to make doubtful things clear, or at least to To apply this; I say these words, so that, though maintain things that are clear, to be clear, as they “ loco et textu posteriora,” yet they be “ potestate et are. And in that kind I conceive my labour will be sensu priora :" as if they had been penned thus, that in this case, which I hold to be a case rather of it shall be lawful for Sir Thomas Stanhope, so that novelty than difficulty, and therefore may require he assure lands, &c. to revoke ; and what difference argument, but will not endure much argument: but between, so that he assure, he may revoke ; or, he to speak plainly to my understanding, as the case may revoke, so that he assure: for you must either hath no equity in it, I might say piety, so it hath make the so that to be precedent or void, as I shall no great doubt in law.

tell you anon. And therefore the law will rather First, therefore, this it is, that I affirm, that the invert the words, than pervert the sense. clause, so that, ita quod, containing the recom- But it will be said, that in the cases I put, it is pence governs the clause precedent of the power, left indefinite, when the act last limited shall be perand that it makes it wait and expect otherwise than formed ; and so the law may marshal it, as it may as by way of inception, but the effect and operation stand with possibility; and so if it had been in this is suspended, till that part also be performed: and case no more but, so that Sir Thomas or John should if otherwise, then I say plainly, you shall not con- assure new lands, and no time spoken of, the law strue by fractions; but the whole clause and power might have intended it precedent. But in this case

[ocr errors]

45 E. 3.


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 can- itself. not vary in the times.

The third reason is the justice of the law in taking To this I answer, that the new assurance must be words so, as no material part of the parties' intent in deed in time after the instrument or deed of the perish : for, as one saith, “præstat torquere verba declaration ; but on the other side, it must be time quam homines," better wrest words out of place, precedent to the operation of the law, by determin- than my lady Stanhope out of her jointure, that was ing the uses thereupon : so as it is not to be applied meant to her. And therefore it is elegantly said in so much to the declaration itself, but to the warrant Fitz-Williams's case, which I vouched before, though of the declaration. It shall be lawful, so that, &c. words be contradictory, and, to use the phrase of And this will appear more plainly by my second the book, "pugnant tanquam ex diametro;" yet the reason, to which now I come; for as for the cavil law delighteth to make atonement, as well between lation upon the word immediately, I will speak to words as between parties, and will reconcile them it after.

so as they may stand, and abhorreth a vacuum, as My second reason therefore is out of the use and well as nature abhorreth it; and as nature to avoid signification of this conjunction or bond of speech, a vacuum will draw substances contrary to their so that : for no man will make any great doubt of propriety, so will the law draw words. Therefore it, if the words had been si, if Sir Thomas shall saith Littleton, if I make a feoffment reddendo rent within six months of such declaration convey; but to a stranger, this is condition to the feoffor, that it must have been intended precedent ; yet if 'rather than it shall be void, which is quite cross; it you mark it well, these words ita quod and si, how sounds a rent, it works a condition, it is limited to a soever in propriety the ita quod may seem subse-third person, it inureth to the feoffor; and yet the quent, and the si precedent, yet they both bow to law favoureth not conditions, but to avoid a vacuum. the sense.

So in the case of 45 E. III. a man 4 E. 6. Pl. Com.

So we see in 4 Edw. VI. Colthurst's gives land in frank-marriage, the recase, a man leaseth to J. S. a house, mainder in fee. The frank-marriage is first put,

"si ipse vellet habitare, et residens and that can be but by tenure of the donor ; yet esse;" there the word si amounts to a condition rather than the remainder should be void, though it subsequent; for he could not be resident before he be last placed, the frank-marriage being but a pritook the state ; and so via versa may ila quod be vilege of estate shall be destroyed. precedent, for else it must be idle or void. But I So 33 H. VI. Tressham's case: the king granteth go farther, for I say ita quod, though it be good a wardship, before it fall; good, because it cannot words of condition, yet more properly it is neither inure by covenant, and if it should not be good by condition, precedent, nor subsequent, but rather a plea, as the book terms it, it were void ; so that, no, qualification, or form, or adherent to the acts, not in the king's case, the law will not admit words whereto it is joined, and made part of their essence, to be void. which will appear evidently by other cases. For So then the intent appears most plainly, that this allow it had been thus, so that the deed of declara- act of Sir John should be actus geminus, a kind of tion be enrolled within six months, this is all one, as twine to take back, and to give back, and to make by deed enrolled within six months, as it is said in an exchange, and not a resumption; and therefore Digg's case.

Digg's case 42 Eliz. f. 173, that by upon a conceit of repugnancy, to take the one part, 42 Eliz. Co. P. deed indented to be enrolled is all one which is the privation of my lady's jointure, and 1. f. 173.

with deed indented and enrolled. It is not the other, which is the restitution or compensbut a modus faciendi, a description, and of the same ation, were a thing utterly injurious in matter, and nature is the ita quod : so if it had been thus, it absurd in construction. shall be lawful for Sir Thomas to declare, so that The fourth reason is out of the nature of the conthe declaration be with the consent of my lord chief veyance, which is by way of use, and therefore justice, is it not all one with the more compendious ought to be construed more favourably according to form of penning, that Sir Thomas shall declare with the intent, and not literally or strictly : for although the consent of my lord chief justice ? And if it had it be said in Frene and Dillon's case, and in Fitzbeen thus, so that Sir John within six months after Williams's case, that it is safe so to construe the such declaration shall obtain the consent of my lord statute of 27 H. VIII. as that uses may be made chief justice, should not the uses have expected ? subject to the rules of the common law, which the But these you will say are forms and circumstances professors of the law do know, and not leave them annexed to the conveyance required: why surely to be extravagant and irregular; yet if the late any collateral matter coupled by the ita quod is as authorities be well marked, and the reason of them, strong? If the ita quod had been, that Sir John you shall find this difference, that uses in point of Stanhope within six months should have paid my operation are reduced to a kind of conformity with lady 10001. or entered into bond never more to dis- the rules of the common law, but that in point of turb her, or the like, all these make but one entire exposition of words, they retain somewhat of their idea or notion, how that his power should not be ancient nature, and are expounded more liberally categorical, or simple at pleasure, but hypothetical, according to the intent; for with that part the staand qualified, and restrained, that is to say, not the tute of 27 doth not meddle. And therefore if the one without the other, and they are parts incorpo- question be, whether a bargain and sale upon con

[ocr errors]
« PreviousContinue »