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cause_n action_n bring_v case_n 1,979 5 6.5772 4 true
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A93865 An historical discourse, briefly setting forth the nature of procurations, and how they were anciently paid, with the reason of their payment; and somewhat also of synodals and pentecostals: with an appendix in answer to an opposer. By J.S. J. S. John Stephens. 1661 (1661) Wing S5448; Thomason E1057_9; ESTC R34604 60,663 159

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latco And where it was said that in respect of the greatness of the King and his Train competent Proxies could not be ministred to him and by consequence could not be granted to him This objection is taken away in that the Proxies at the time of this Grant were reduced to summes of money certain As also the Rule of the Canon Law is not plainly cited before for the Rule is Procurat●o exhibenda est secundum qualitatem personae visitantis substantiam visitatorum It was further resolved That the Bishop with the assent of his Clergie might well grant these Proxies to the King for that the Law hath qualified the person of the King to receive such Grant albeit the same be such a Prerogative of the Bishop that cannot be assigned to any other As the Creation money of a Duke or Earl may be granted and surrendred to the King though it cannot be granted to any Subject Also Proxies being now reduced to a certainty in money and so made parcel of the certain setled and perpetuall revenue of the Bishop might be as well granted by him as a portion of Tythes or an annuity or any of his Rents Services or other Hereditaments temporall 3. And as to the third point it was also resolved and adjudged That the unity of possession of Proxies with the Rectories impropriate and Religious Houses out of which Proxies were payable did not extinguish the Proxies in the hands of the King but suspend the payment of them only pro tempore quousque the King by his Grant should sever the one from the other For the finding of the Law in which point the nature of these things was considered which in any fort might be subject to drowning or extinguishment by unity of possession And they were said to be of three kinds as First Estates in Land Secondly Actions reall and Titles to Land Thirdly and lastly Things issuing or coming out of Land or taken and had upon Land Estates in land are properly drowned or confounded when a lesser estate concurs with a greater in the same person and in the same right as Terminus feodum non possunt constare simul in una eademque persona and a pregnant reason thereof is put in the Case of Bracebridge Piowd Com. 3 9 b. because Term is a time finite and Fee-simple is a time infinite of necessity then the finite must be drowned and confounded in the infinite Ob. But that 's confounding and not extinguishment for if a particular Tenant grant or surrender his Estate to another in Reversion the particular Estate is not extinct though it be drowned and confounded and if a particular Tenant hath charged the Land with rent or other incumbrance the Estate shall remain in being to this intent And in truth Estates in Land and right to Land are things of such substance which cannot be extinct or penitus interire And therefore Littleton saith that if a Disseisee when his entry is taken away releaseth to the Tertenant all his right that that shall not enure by way of Extinguishment for the right that he had passed to the Tenant by his Release And it were inconvenient that such ancient right should utterly be extinct For droit ne poet pas morier But things that issue out of the Land as Lordship Rent-charge c. are subject to extinguishment to all intents As if a Lord grant his Seigniory or Lordship to a Tertenant and a Stranger there shall be no joyntenancy or survivor between them for the moity of the Lordship is extinct to all intents and purposes Plowd Com. 4.9 a. And if a Lord release to a Tenant all his right in the Lordship or the Land such release passeth by way of extinguishment against all persons Littleton 112. b. Secondly Reall actions also and conditions are subject to extinguishment and that is quasi by unity of possession As in all cases of Remitter There he that hath right of action for Land hath also the possession of the Land it self so that there is not any person against whom he can bring his action and for that cause the action is extinguished for ever And upon the same reason Condition which gives title of reentry in Land is extinguished by purchase of the Land or part of it 8 H. 7.8 b. 33 H. 8. Br. Extinguishment 49. So warranty is extinguished by Reinfeoffment or Descent of Land to the same person that had the Warranty 40 E. 3.13 Thirdly Things issuing or comming out of Land or taken and had upon Land are of three kinds and from those different kinds of things these differences doe arise If things have their originall and commencement out of Land and no otherwise and are due in respect of Land only and are part of the profits of Land such things shall alwayes be extinguished by unity of possession if a man hath equall estate and right in both together Of this nature is Seigniory and reall services 3 H. 6.1 a. 40 E. 3.40 b. Littleton 49. a. 122. b. 34 Ass p. 15. Rent-charge Littleton 48. b. Dier 140. b. Common 11 H. 4.5 a. 24 E. 3.25 b. Chimin 21 Ed. 3. a. 11 Hen. 4.3 a. And two reasons of this rule were brought one For that the thing that 's extracted out of Land when it comes back again to the Land will be naturally extinct for there is Revolutio ad materiam primam from whence comes naturall extinguishment as well of man as of all other terrestriall things The other more legall reason is That he that hath all profits entirely shall not be said to have part of the profits for part is confounded in the whole and therefore a man cannot have Seigniory Rent Common or High way in his own land But on the other part things that are not issuing out of land as parcell of the profits of land but are otherwise derived and due upon other respect albeit they are taken and had within certain land yet unity of possession doth not extinguish such things Of this nature are all Franchises as if a man hath a Warren or Purlieu in the land of another and afterwards purchaseth the same land this unity of possession doth not extinguish the Franchises but he hath them in his own land 28 H. 8. Dier 30. b. 16 Eliz. Dier 327. a. 35 H. 6.56 a. So is it of Waif Stray Wreck Leet c. Also though the thing be part of the profits of the land and payable by such person only that hath the land yet if such thing had its commencement and originall upon any personall respect and not in respect of the land and so the person only is charged and not the land such thing shall not be subject to extinguishment by unity of possession and of this nature are Annuities Dismes Proxies If an Annuity be granted in fee by apt words to charge the Heir or Successor albeit the Heir or Successor shall not be charged without Assets of the land yet if the