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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, Austin's office. and the king granteth it per servilia antehac consueta; now, because of the uncertainty, 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.
For the third branch, if the king 3 H. 6, f. 7. limit land to be discharged of tenure, is 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 soccage, 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.
If land be given to be held of a lordship not capable, as of Salisbury Plain, or a corporation not in esse, or of the manor of a subject, this is a tenure in capite.
So if land be given to hold by impossible service, as by performing the office of the sheriff of Yorkshire, which no man can do but the sheriff, and fealty for all service, this is a tenure in capite.
For the fourth branch, which cometh nearest to our case; let us see where a seigniory was once, and is after extinguished; this may be in two manners, by release in fact, or by unity of profession, which is a release or discharge in law. And, therefore, let the case be, that the king releaseth to his tenant that holds of him in soccage; this release is good, and the tenant shall now hold in capite, for the former tenure being discharged, the tenure in law ariseth.
l'ide 30 H. 8. Dver 8. H. 7, 1. 13.
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 norman 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 twenty-six pounds ten shillings 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 i. 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 granted, but was in the tenant before; and therefore no colour it should come under the reservation. But if it be said, that nevertheless the seigniory of that tenancy was parcel of the manor, and is also granted; and although it be extinct in substance, yet it may be in esse as to the king's service: this deserveth answer: for this assertion may be colourably inferred out of Carr's case.
9 Eliz. Coke, Lib. 3, f. Su.
the grantee took forfeiture thereof, whereby it was extinct; yet the rent remaineth as to the king out of the bailiwick 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 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 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 in 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
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.
25 H. 6, f. 569
This is no
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. The case of the frankalmoigne, I mean the case where the king grants fraukaln.oigne. 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's service in capite, but only a soccage tenure, is easily answered; for that the frankalmoigne is but a species of a tenure in soccage 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 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. 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.
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 on the terms 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 The same reason is between the capacity of capite; but not a word of that it should be by way the crown and the capacity of the duchy, which of express reservation, but upon a feoffment simis in the king's natural capacity, though illus-ply, the law shall work it and supply it. trated 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 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
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 of 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.
CASE OF REVOCATION OF USES,
IN THE KING'S BENCH.
'The Case, shortly put, without Names or Dates more | lady were at no loss by the exchange, inserteth
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
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, her 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 twenty pounds, and within six months assures to my lady and to the former uses Burtonjoice 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 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.
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, wheher it be pursued or no? wherein the question will rest, whether the value of the reassured 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.
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 is void, not in tanto, but in toto. Of the first of them I will give four reasons.
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, comment. Hill and 171. A man in August makes a lease, Granger's rendering ten pounds rent yearly to be 171. paid at the feasts 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.
case, 2 Jac. Co.
Fitzwilliams's case, 2 Jac. Co. p. 6, Fitzwilliams's f. 33, it was contained in an indenture p. 6, t. 33. of uses, that Sir William Fitzwilliams shouldhave 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 I shall prove likewise that the value must needs timber trees to erect a new tenement upon the be accounted not a tale value, or an arithmetical land, so that my bailiff do assign you where you value by the rent, but a true value in quantity and shall take them, here the assignment, though last quality. placed, must precede. And, therefore, the gramAnd, lastly, that a notice is of necessity, as this marians do infer well upon the word period, which 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 recompense, VOL. III.-36
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
2 A 2
revoke; or, he may revoke, so that he assure; | Thomas shall declare with the consent of my lord
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 case it is precisely put to be at any time within six 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 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. Col.
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 Jolin Stanhope within six months should have paid my lady one thousand pounds, 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 incorporated into the nature and essence of the authority 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 Fitzwilliams'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.
45 E. 3
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.
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 ila quod be precedent, for else it must be idle and 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. For, 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 So then the intent appears most plainly, that one with deed indented and enrolled. this act of Sir John should be actus geminus, a It is but a modus faciendi, a description, kind of twine to take back and to give back, and und of the same nature is the ita quod; so, if it to make an exchange, and not a resumption; had been thus, it shall be lawful for Sir Thomas and, therefore, upon a conceit of repugnancy, to to declare, so that the declaration be with the con- take the one part, which is the privation of sent of my lord chief justice, is it not all one with my lady's jointure, and not the other, which is the more compendious form of penning, that Sir the restitution or compensation, were a thing
Digg's case, 42 Eliz Co. P. I. f. 173.
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.