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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
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.
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 ffom 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 I have not found any Report of this case. So in MS.; but apparently the father is Thomas, and the son John, See further on.
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 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.
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 'tis that I affirm; that the clause “so that,” ita quod, containing the recompense, 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 these 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 place', but how the acts, which are guided by those words, may take place.
Hill and Graunger's case, Comment. 171. A man in August
1 The MS. has “take place," with the first word struck cut. retained it, but I think erroneously.
The editions have
makes a lease, rendering ten pounds rent yearly to be paid at Graunger's the feasts of Annunciation and Michaelmas. These words 1.171. 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.
Fitzwilliams's case, 2 Jac. Co. pa. 6. f. 33. It was contained Fitzwilin an indenture of uses, that Sir William Fitzwilliams should 6 Co. 33. 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, and 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 further 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