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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
the said Commandery and Rectory to Dr. Forth rendring rent without any reservation of Proxies And whether he shall be now charged with the said Proxies and with the arrerages of them incurred since the commencement of his Lease was the question and it was adjudged that he should be charged and three points were stirred and debated in the argument of that case 1. Whether the Proxies were utterly extinct by the suppression dissolution of the said Religious Houses of St. John of Jerusalem and Thomas-Court notwithstanding the Saving within the Act of Dissolution 2. Whether the Bishop can grant the Proxies to the King 3. Whether the Proxies were extinct in the hands of the King by the unity of possession For the first point it was objected by the Counsell of Sir Ambrose Forth that these Proxies were extinct by the suppression and dissolution of those Religious Houses for that the visitation of these Religious Houses was the sole cause of the payment of Proxies Et cessante causa cessat effectus For those Religious persons being deraigned and dispersed were not after that subject to Visitation and then when the Visitation ceased the Proxie being also an exhibition given to the Visitor for his travelling charges shall cease also For Procuratio as the Canonists define it est exhibitio sumptuum necessariorum facta praelatis qui dioeceses peragrando Ecclesias subjectas visitant Yet they agree that the Visitation ceaseth not immediately by the surrender or by the Act of Parliament which giveth those Religious Houses and their possessions to the Crown for by that their Corporations were not dissolved as 't is held in the Case of the Dean and Chapter of Norwich in the third part of the Lord Cokes Reports 15. Ass p. 8. 32 Hen. 8. Br. Corporations 78. But when those Religious persons were deraign'd and had relinquished their habit rule and order for which they were visitable then the Corporation was utterly dissolved and upon that the Visitation ceased And they resembled the Proxie due for Visitation to an Annuity pro consilio or pro servitio impendendo If the Counsel or Service be withdrawn the Annuity is determined So if a rent charge be granted for a high-way stop the way and the Rent-charge shall be also stopped 9 Edw. 4.19 15 Edw. 4.2 21 Ed. 3.7 45 Edw. 3.8 Dier 6. Hen. 8.2 6 Ed. 6.76 So also where a Corodie is granted for certain service to be done Omission of the service determines the Corodie 20 Edw. 4. fol. ultimo 'T was also said that this duty was not annuall but contingent and payable only at every visitation as Escuage for every journey Royall or as Aid for marrying of a Daughter or for making a Sonne a Knight In which last Cases if an Avowry be made for Aid 't is a good plea in barre thereof to say that the Avowant had not such sonne or Daughter alive at the time of the Aid levied N. N. Br. 82. g. And for the Saving they said that the same was a Flattering Saving which could not preserve the Proxies in being which the Law had extinguished as it was held 14 Eliz. Dier 313. That the Tenure of Obit or Chauntry Lands held of Subjects are extinct by the Act of 1 Ed. 6. notwithstanding the Saving in the said Act propter absurditatem So the Proxies in like manner shall also be extinguished proptor absavditatem For as it is absurd that the King should be subject to attendance in respect of Tenure so it is absurd that the King should be subject to Visitation or to any duty in respect thereof And of the same nature are many Savings put in Walsinghams Case Plow Com. 563. which are there called Flattering Savings For the second point it was objected That the Bishop could not grant the Proxies to the King for two Reasons The one deduced from the person of the King the other from the person of the Bishop First for the King admit that he were capable of such Spirituall Office as to be Visitor of Religious persons yet shall be not have Proxies in respect of Inconveniency and Indecency and also Impossibil●ty for it is not convenient or decent that these poor Religious persons should bear the charges of the King and it is also impossible for by the Canon Law Procuratio exhibenda●est secundùm qualitatem personae visitantis And the Majesty of the Kings person and the greatness of his Train is such that by praesumption of Law no private person can bear his necessary charges or make entertainment for him correspondent to the quality of his person And therefore 't is held 27 Henr. 8.10 b. That where Common sins number was granted to an Abbat and his Successors out of the Manor of Dale that after the Dissolution the King shall not have the Common sans number for it is there said that if the King have it he may surcharge the Land which the Law will not suffer As if a Villain purchase Common sans number the Lord shall not have it for the reason aforesaid for then the Ter-tenant may lose the profit of the Land For the Bishop though lie may grant his Temporall possessions with the assent of his Chapter or Clergie yet those duties that he hath by Prerogative of his Episcopall chair or as incident to his Spirituall function he cannot grant which according to the Rule of the Canon Law are of three kinds 1. Subisdium Cathedraticum which is a duty of Prerogative and Superiority 2. Quarta Episcopalis which is given to him for the Reparation of Churches 3. Procurationes for his visitation ut supra which is a perquisit or profit of his Spirituall Jurisdiction as Creation money given to a Duke or Earl for maintenance of his honour cannot be granted over 6 Hen. 8. Dier 2.2 For the third point they said that albeit the Proxie be a personall thing payable only in respect of the persons visitable yet admit that these Proxies are become reall and that the Commandery and Rectory be charged with the same Proxies then the unity of Possession extinguisheth them in the hands of the King As a Lordship Rent-charge Common and the like are extinguished by the purchase of the Tertenant if he hath equall estate in the Land and in the thing which chargeth the Land And to this purpose the Case of 2 H. 4.19 a. was put where 2 Prior had an Annuity out of a Parsonage by Prescription the Parsonage is appropriate to the Priory and the Annuity is extinguish'd for ever But on the other part it was answered by the Kings Councell and resolved by the Court. 1. THat the said Proxies were not extinguished by the Dissolution of the said Religious Houses but were well preserved and saved to the Bishop 2. That the Bishop had well granted them to the King 3. That the unitie of possession in the Kings hand did but suspend not extinguish the Proxies As to the first point it was observed First that Proxies