Because that the Authority appeares within the letters patents themselves and exposition shall be made upon the whole patent 5. Although it be a most ample and large Commission yet it is bounded and circumscribed by the Law with an equall Construction S. that nothing shall bee done in other manner then the Authority warrants in prejudice of the King 6. Because that this reservation of a meane tenure is in other manner then the authority warrants and is in damage and prejudice of the King 7. And lastly because that this expresse reservation controlls the implication of Law and for that the King was deceived in his grant in that it cannot take effect according to his intention therein expressed For these Reasons they did resolve That this expresse Reservation of a meane tenure tends to the destruction of the whole patent and makes it voyde in Law both to the lands and to the tenure The Order of the Councell Board upon this Resolution of the Iudges By the Lord Deputy and Councell WENTWORTH WHereas there was an Act of Councell made at this Board and dated at the Abbey of Boyle the Eleaventh day of Iuly 1635. ordayning and establishing that the Lords Knights Gentlemen and Inhabitants their heires and assignes holding any Castle Mannors Lands Tenements or other haereditaments in the County of Roscoman by or under any effectuall letters patents from his Majesty or any of his Royall predecessors Kings or Queenes of England should have hold possesse and enjoy all the said Castles Mannors Lands Tenements and hereditaments of what kinde or nature soever they be to them and to every of them and to those who hold any estates under them against his Majesty his heires and successors in as full large ample free and beneficiall manner to all intents purposes and constructions as if the truth of their severall Cases and their severall letters patents passed thereupon had bene specially found in the great office then to be taken for finding his Majesties title to the said County and their letters patents accordingly entred in haec verba in the said office so that they did produce their said severall letters patents or the enrollments thereof before us the Lord Deputy and Councell at this Board before the first day of the then next Easter Tearme and that no possession should be taken from any such patentees or their assignes or tenants whose patents should be at this Board allowed to be good and effectuall in Law And whereas the like Acts of Councell were made at this Board for the severall Counties of Slygo Mayo and Gallway and the County of the towne of Gallway And whereas severall letters patents past under his Majestyes great seale of divers lands tenements and hereditaments in the said severall Counties by colour of a Commission under the greate Seale dated the second day of March in the fourth yeare of the Raigne of his Majestyes Royall Father King Iames of blessed memory were presented unto us at this Board which being taken into consideration by us we thought fit for our better Information of the validity of the said letters patents to call before us some of those who claymed by those letters patents as namely our very good Lord the Viscount Dillon of Costillogallen whom wee appointed to attend us with his learned Councell therein which he did accordingly Whereupon his Majestyes learned Councell and the Councell learned of the said Lord Dillon agreed upon a Case drawen up by them to be argued by them on both sides before us which Case followeth in haec verba King Iames by Commission under the greate Seale dated the second day of March in the fourth yeare of his Raigne did authorize certaine Commissioners to grant the mannor of Dale by letters patents under the greate Seale of this Kingdome to A. and his heires and there is no direction given in the said Commission touching the tenure to be reserved There are letters patents by colour of the said Commission passed unto A. and his heires to hold by Knights service that is to say by the twentieth parte of c. as of his Majestyes Castle of Dublyn the question is whither the said letters patents be voyde in the whole or onely to the tenure upon which case his Majesties learned Councell and the learned Councell on the part of the said Viscount Dillon argued before us severall dayes and wee desirous to take such a Resolution in the matter as might be equall and just held fit to advise therein withall his Majestyes Iudges who not agreeing unanimously in opinion wee adjudged it fit that every of them should argue it and deliver his Iudgement and opinion therein before us which they did accordingly Wherein five of them viz. the Lord Chiefe Iustice of his Majesties Court of Kings Bench the Lord Chiefe Iustice of his Majestyes Court of common pleas the Lo Chiefe Baron of his Majestyes Court of Exchequer Baron Barry and Iustice Rives concurred in opinion clearely that the letters patents were voyde in the whole and two onely viz. Iustice Mayart and Iustice Cressy differed from those five in opinion holding that the letters patents were onely voyde as to the tenure we thereupon taking the same into consideration at this Board doe hereby adjudge order and declare that the said letters patents are wholly voyde in Law and consequently that all such letters patents passed under colour of the said Commission and that mention the parcells granted to be held by Knights service as of his Majestyes Castle of Dublyn or by any tenure other then by Knights service in Capite generally are not good effectuall or valid in Law but voyde in the whole And therefore we doe at this Board disallowe all such letters patents soe granted as aforesaid of any lands tenements or hereditaments in any of the said Counties of Roscoman Slygo Mayo Gallway or the county of the towne of Gallway Given at his Majestyes Castle of Dublyn 13. Iuly 1637. R. Dillon Ad. Loftus W. Parsons Gerr. Lowther R. Bolton Chr. VVandesford Ph. Mainwaring Cha. Coote Geo. Radcliffe THE END
and delivers seisin secundum formam Cartae this livery and seisin is good albeit hee did not enter into both nor into one in the name of both and yet this is done in another manner then his authoritie warrants for his authority was to enter into both and to deliver seisin of both neyther of which hee doth no not so much as enter into one in the name of both So vvhen the Feoffment is made to two or more and a letter of Atturncy to make Livery to both and the Atturney makes Livery of seisin to one of the feoffees secundum formam effectum Cartae this is good to both and yet in that Case hee that is absent may vvayve the Livery Surely this is done by the Atturney in another manner then the authority warrants for his warrant was to make Livery to both and the intention of the Feoffor was that both should take and the estate bee setled in both and yet hee makes Livery to one onely and so that the estate may bee setled onely in him and yet hee hath well executed his authority for in substance hee hath done that which is commanded and though it differs in the manner it is not materiall both those Cases are put in Cokes instit sect 66. But in the Case in Question the Commissioners have done in substance that which was commanded them therefore their authority is vvell executed and the act they have done is good That they have done in substance that which vvas commanded them appeares in it selfe for their authority was to grant the Mannor of Dale to A. and his heyres this they have done And if they have added any thing to the grant whereby it may bee sayd to bee done in another manner yet the act being done in substance it shall bee good 3. That wherein they have exceeded their authority scilicet the Reservation of the tenure it is not of the essence of the grant Of the essence of a grant are onely Grantor Grantee and the thing to bee granted and apt words in an Instrument or Patent Besides of the essence of a grant it cannot bee for grants were at Common-law tenures were introduced by the Conquest Selden in his Not. to Eadmer 194. Bracton libr. 2. de acquir rerum domin The tenure is another distinct thing aliud from the Land in that they cannot consist in one person the Land is the thing granted that belongs to the Patentee the tenure is Reserved to the King that belongs to him the Reservation is aliud or supra or praeter the grant not alio modo And therefore the Letters patents may bee voyde for the tenure and yet good for the grant of the Land 4. Although it were admitted that the Reservation of the tenure bee not a distinct thing or aliud from that which they had authority to doe but is rather a doing of the same thing for which they had warrant in another manner then their authority does warrant yet it will not follow that the whole act is voyde For an authority given may bee executed in another manner alio modo then the Commission doth Warrant and yet stand good for that which is done according to the authority And that may be in these Cases 1. Where the authority is cloathed with an interest for there in many Cases he that hath the authority may vary from the authority And the act though it bee done in another manner shall bee good As where the custome of a Mannor is that the Lord may grant Landes by Copy of Court-roll in Fee if the grant bee in tayle or but for life this is good Stanton and Barnes his Case Hill 36. Eliz. Roc. 492. in B. R. Cokes instit sect 66. So where the custome was to grant Copyes for two lives and hee grants to the Husband for life and after to the Wife Durante viduitate This is good Downes and Hopkins Case P. 36. Eliz. B. R. The Statute of 32. Henr. 8. doth enable tenant in tayle to make a Lease for one and twenty yeares if he makes a Lease for twenty yeares onely or to one for tenne yeares and after makes a Lease to another for eleven yeares more this is good and so it hath beene Resolved in Tompson and Traffords Case Hill 35. Eliz. B. R. 2. Where the varying from the authority given is in letter or circumstance and not in a point materiall or in substance for that see the Cases cited before Cokes instit sect 66. Litt. 434. 3. Where the varyance from the authority although it bee in matter of substance is supplyed by operation of law As if a licence bee granted to a Copy-holder for life to make a Lease for tenne yeares if hee shall so long live the Copy-holder makes a Lease for tenne yeares absolutely without the limitation videlicet if hee shall so long live yet adjudged good and the Licence well pursued It was Hatt and Arrowsmiths Case Hillar 38. Elizabeth B. R. And in the Case in question where all agree that the Kings meaning in this Commission was that a tenure in Capite should bee Reserved albeit it bee not expressed in words or if it had beene in expresse termes that a tenure in Capite should bee reserved and they had onely granted the Mannor without reservation of any tenure yet the Law supplying this defect and raysing a tenure in Capite this shall make the grant good 4. VVhere the varyance from the authority is cured by the party himselfe by some other act As if Tenant in tayle Husband and Wife a Bishop c. who are authorized by the Statute of 32. Henr. 8. to make leases for one twenty yeares or three lives of Landes usually lett make a lease of Landes usually lett and of Landes not usually lett reserving one entire Rent all is voyde Shepheards Case But if Tenant in tayle will make such a lease and reserve the accustomed Rent for the Landes usually lett and another Rent for the Landes not usually lett heere the lease shall bee good for the Landes usually lett and voydeable onely for the other for by these severall reservations the varyance from the authority is Cured Tanfeild and Rogers Case Trin. 36. Eliz. B.R. 5. VVhere the varyance from the authority how materiall soever it bee is notwithstanding made voyde eyther by the Common-law or act of Parliament As where the King does licence I. S. to grant twenty Markes annuity in Mortmaine and hee grants the Annuity with clause of distresse by Hussey and Bryan chiefe Iustices and Starky chiefe Baron and Iustice Faierfax the addition of distresse is without warrant and voyde yet all admit the grant of the Rent good notwithstanding 2. 3. H. 7. grants 36. By the Statute of 1. Elizabeth a grant by a Bishop of an ancient Office of Seneschall-ship to two that had never before beene granted but to one is adjudged voyde 10. Coke 61. the Bishop of Salisburyes Case Put case then that such a
the Crowne Obj. It was Obj. that the tenure is Aliud frō the land for the land is the subjects the tenure belongs to the King Resp To that 1. it was Answ that the questiō is not whither the tenure be Aliud from the land for t is cleare the land is one thing and the tenure another but the questiō is whither the reservation of the tenure be Aliud frō the authority of granting the land or included in it as modus concessionis S. they shal grant grant in this māner 2 It was answered both are the Kings But the tenure was asleepe by the possession in the King and it is now to bee awakened by this Commission in which it appeares that the intent and plaine meaning of the King vvas to grant the land to the subject and to reserve the tenure for himselfe And that the Tenure is not such a stranger to the land it is proved by our books in Mary Blages Case 1. H. 4. 2. It is said that land lies naturally in tenure 2. that land lies alwayes in tenure And therefore the tenure is of the nature of the land it arises out of the land and hath existence in the land it is inherent in it and inseparable from it it is upon the matter of the essence of the grant of the land for no grant of land in Feesimple to a common person either from the King or a Common person can be without a tenure either expressed or implyed We have not in our lavv properly Allodium that is any land in the hands of a subject that is not holden Cokes Instit sect 1. The lands onely that are in the Kings possession are free from tenure for a tenant is hee that holdeth of some superior Lord by some service And therefore the King cannot be a tenant because hee hath no superior but God praedium domini Regis est directum dominium cujus nullus est Author nisi Deus And as Bracton saith lib. 1. cap. 8. omnis quidem sub eo ipse sub nullo nisi tantum sub Deo vid. lestatute 16. R. 2. cap. 5. 14. Eliz. Dyer 313. 1. Coke 47. vid. 8. Coke 118. where it is said that it would bee against Common right and reason that the King should hold of any or doe service to any of his Subjects and therefore some have thought it not so proper in the Kings Case to say that he is scised in dominico suo ut de feodo Cowell Interpret verb. feudum institut p. 66. As if feodum or fendum were taken in our law as it is in the feudall law onely for lands held by services But with us it hath another signification Littleton tels us feudum idem est quod haereditas and so it was defined long before Littleton by Bracton and Briton and Fleta And in truth it hath two significations in our bookes In the first it is taken to be the same with an inheritance and so it is proper enough in the Kings Case In the other it is taken for lands held as in that of Hors de son fee. We finde both in Bracton lib. 4. cap. 9. fol. 263. feudum est quod quis tenet ex quacunque causa sibi haeredibus suis c. alio modo dicitur feudum quod quis tenet ab alio sicut dicitur talis tenet de tali tot feuda per servicium militare And agreeing with him is Fleta which for the most part is transcribed out of Bracton lib. 5. cap. 5. And here just occasion might bee taken to cleare our Master Littleton from that imputation which is cast upon him by the Author of the Common wealth of England pag. 127. where hee layes ignorance to his charge for laying that Feodum idem est quod haereditas which saies he it doth not signifie in any language It were easie to make it manifest how proper that sence is But because it hath partly appeared by that which hath beene sayd and for that the Author of that Booke is not knowne for some have doubted whither Sir Thomas Smyth be the Author of it or no Sir Iohn Fernes generositie pag. 99. And so to argue with him would be to fight with a shadow therefore they did abstaine So that it is cleare that onely lands in the Kings possession are free from tenure But if they once come into the hands of a Common person there if the feoffor doe not reserve a tenure the law will Before the statute of Quia Emptores Terrarum if a man made a feoffment in fee and reserved no tenure the law did imply a tenure and the feoffee held of the feoffor by such services as the feoffor held over Vpon a feoffment made after that statute if no tenure were expressed the law will imply a tenure de Capitalibus dominis And as it is in the Case of Common persons so in the Kings Case In every grant wherein feesimple passes there must bee a tenure either expressed or implied Of such Necessity is the Reservation of a tenure in the Kings grant that although the King should grant land without any Reservation of tenure or by expresse words absque aliquo inde Reddendo yet the law would create a tenure in Capite 33. H. 6. 7. 6. Coke 7 VVheelers Case 9. Coke 123. Anthony Lowes Case 14. H. 6. 12. The Abbot of St. Bartholomewes Case The King grants lands in fee Tenendum cy frankement come le Roy esten son Corone yet the patentee shall hold in Capite for it is vested in the King by his prerogative and cannot be extinct It is so inseparable it cannot bee released In Anthony Lowes Case The King grants or releases the Services to his tenant and his heires this release cannot extinguish the tenure in all though where the tenure is by Common Knights service or socage it extinguishes all the services but that onely vvhich is an incident inseparable to every tenure viz. fealty And all for this reason Because there is a necessitie of a tenure and the Kings Charter doth not alter the law the tenure and services are part and parcell of the Mannor and shall goe with the Mannor and discend as the Mannor to the heire of the part of the mother although it bee newly created 5. E. 2. Avowry 207. Besides consider the tenure in the Commencement and fruits of it it is ever inherent in and Relative to the land The Commencement of the tenure S. the forme of doing homage and fealty is that hee shall be faithfull and true for the land that he holds The fruits of the tenure what are they but the profits of the land wardship Livery primer seisin reliefe fine for Alienation and the rest And therefore where the land and signiory meete in an equall estate and right in the same person the signiory by unitie of possession is extinguished And there are tvvo reasons given of that extinguishment 1. Because the signiory that was