Per Prisot in fine, 33 H. 6. f. 7.

8 H. 7. f. 3.

5 Mar.

Dver, f. 161, 162. [14 Fliz.

Dyer, 306.

Austin's office.

33 H. 6. f. 7.

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.

For the first, if the King give lands 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 recompense, 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 or affirmative, and the party shall have a negative, or traverse, which is somewhat strange to a thing indefinite.

So if in ancient time one held of the King, as of a manor by knight-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 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.

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 law.

So if the King grant land tenend si franchment come il est en 14 H. 6. f. 12. son corone, this is a tenure in capite.

case.

If land be given to be held of a lord' not capable, as of Merefeild's 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 seigniory was once and is after extinguished. This may be in two manners, by release in fact, or by unity of possession 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 socage; this release is good, and the tenant shall now hold in capite, for the former tenure being discharged, the tenure in law ariseth.

So the case which is in 1 E. III. A fine is levied to J. S. in tail, the remainder ouster to the King, the state tail shall be held in capite, and the first tenancy, if it were in socage, by the unity of the tenancy shall be discharged, and a new raised thereupon: and therefore the opinion, or rather the quaere, in Dyer, no law.

Vide 30 H. 8.

Dyer, 44, 45

H. 7. f. 13.

1 E. 3. f. 4.

fine accept;

unde collect.

Thus much for my major proposition: now for the minor, or 4 et 5 P. M. 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 argu

ment.

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 MS. has only L.: The Editions have it, "lordships."
So in MS. I cannot interpret it.

3 Co. 30.

Ass. pl. 60.

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 (Lowe's tenure) had been by knight-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 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.

King Edward VI. grants a manor, rendering ninety-four pounds rent in fee farm tenendum de East Greenwich in socage; and after, Queen Mary grants 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 devisable by the statute for the whole, as not held in capite.

And so the case of the honour of Pickering, where the King granted the bailiwick, rendering rent, and after granted the honour, and the bailiwick became forfeited, and 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 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 frankal moigne.

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