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 said 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 devisable 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 meanalty extinct, where the tenant shall hold of the lord as the mean held before; as where the meanalty is granted to the tenant, or where the tenancy is granted to the mean, or where the meanalty descendeth to the tenant, or where the meanalty is forejudged. In all these cases the tenancy (I grant) is held as the meanalty 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 in esse, so as the question is wholly upon the creation of a new seigniory, and not upon the continuance of an old.

25 H. 6. f. 56.

9.

This is no frankalmoigne.

For the third course, that the law should create a new distinct tenure by fealty of this parcel, guided by the express tenure uponthe 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-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 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 tacite, and so it is no impossible or repugnant

reservation.

The case of the frankalmoigne (I mean the case where the King grants lands of the Templers to J. S. to hold as the Templers did), which cannot be frankalmoigne, and yet hath

been ruled to be no tenure by knight-service in capite, Wood's case. but only a socage tenure, is 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 argument thus: my major is, where calamus legis doth write the tenure it is knightservice 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 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 interests 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 descends 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.

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 illustrate 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 statutes of 1 H. IV. 3 H. V. and

Plowd. 223.

1 H. VII. of the duchy, by which the Duchy seal is enabled to pass lands of the duchy, 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 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 duchy 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 è 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.

LADY STANHOPE'S CASE.1

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

SIR JOHN 2 STANHOPE conveys the manor of Burrowash 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, inserts 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 twenty pounds, 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 towns 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 Burrowash and other parcels, not exceeding the value of twenty pounds, and within six months assures to my lady and to the former uses Burton Joyce, 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 twenty-one pounds, and find the lands of Burrowash 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.

The question is, Whether Burrowash be well revoked: which question divides itself into three points.

I have not found any Report of this case.

2 So in MS.; but apparently the father is Thomas, and the son John. See further on.