theroof by William the Conqueror was devided into Mannors So that al lands every Land was put within one Mannor or other therefore the Law was so satisfied in that as there was an end of making of Mannors when the cause ceased 2ly This word Mannor implieth in it selfe A being time out of memory which we call prescription and this appeareth to be so by the said books of 33. H. 35. H. 8. which are That a Mannor must be De tempore cuius memoria hominum non existit in contrarium So that for these two reasons I am of opinion That neither a Subject nor the King can make a new Mannor at this day Also for the absurdity It were unfitting that every petty Free-holder by giving severall parcells of his Grounds to diverse severall persons should make himselfe Lord of a Mannor at this day But the question and point in my case is not whether one might make a Mannor de novo at this day But whether of one old and perfect Mannor two Mannors may be made and whether one Mannor may be devided into two or not It is true that our Law loves entierties and rejects fraction Quar union fait unity fraction fist division Come garranty per le Ley est entter pur ceo le party que ad ceo ne puit ceo pur son act demesne devider as appeareth by Morices case in the 6. Rep of the Lord Cooke and by Mr. Litleton If one have a Rent charge and purchase parcell of the tennancy or graunt part of the Rent to another All the Rent is extinct in the one case and the distresse is lost in the other For as the Rent was an entire thing so was the distresse and Lex non patitur fractiones So in E. 4. The Office of the Chiefe Prothonotary could not be granted to two to make two severall Officers of them Quia sic centum but as Auditor Curles Case in the 11. Rep. Two Persons may be made one Officer Sed hoc per statutum So by 3. E. 4. and Dyer fol. Two Joyn-tennants cannot make partition without a Deed because it is contrary to the nature of Joyn-tennancy to have a division or partition So that we may collect that where the Law hath made an union it dislikes the contrary and so it may be well held in argumentt that one Mannor cannot be divided into two yet in 9. E. 4. fol. 17. If the Mannor of Dale be held of the Mannor of Sale and Escheat that is parcell of the Mannor of Sale So here is two Mannors made into one which proves the one derived out of the other in principio sed non licet arguere principia But that is by act in Law And so is 26. H. 8. fol. 4. that if a Mannor descend to two Coparceners and they do make partition so that either hath demesnes and services here either of them hath a Mannor Et cum hoc concordat 12. H. 4 For Coperceners are by Law compellable to make partition and then the Law which doth compell the doing of the act doth never work any injury to either party For that were torcious which cannot be presumed in the Law which in it selfe is right and justice And although that 9. E. 4. aforesaid seems to sway that two Mannors may be made one by act in Law yet by the act of the parties I find the Law contrary As in 2. E. 2. and Mr. Perkins where a man had two Mannors and he for ease of his tennants caused all his tennants to come to one Mannor to do their suit and service and that for along time yet that did not make the tennants of the other Mannor in right tennants to that Mannor they did their suit unto neither did it make both the said mannor one entire Mannor In 9. E. 4 fol. 17. It is said by Catesby that if I have a Mannor which lyeth in Dale and Sale and I grant my Mannor in Dale the Grauntee hath a Mannor and yet it shall extend but only into Dale And in Sir Moyle Finches case it is said for Law That if I have a Mannor and grant part of the demesnes and services to I. S. yet by this grant the Grauntee shall not have a Mannor Out of which two books I gather this conceit That if I have a Mannor which doth extend into Dale and Sale and there be demesnes and services in either Town and I grant my Mannor in Dale that the Grauntee hath a Mannor there and that which remaineth in Sale shall be but as things in grosse and no Mannor Sic eâ—converso If I grant all my Lands Tenements and Hereditaments in Sale the Grauntee shall not have a Mannor but the demesnes and services as things in grosse and the Mannor shall remaine with me in Dale So I may conclude that Sir Symon the Grauntee hath a Mannor in Wrangle and Jars passed unto him But now whether the Advowson doth passe to him in some question For things appendant or appurtenant are rather inclinable to remaine then to passe by grant Forin 33. H. 8. in Dyer fol. 48. and 44. E. 3. Fitzh quare imp plac 137. If one have an advowson appendant to a Mannour he may by expresse words make that appendant to one acre parcell of the mannour but not by these words cum pertinentiis but if these cases hereafter ensuingbe wel noted weighed they wil make he Law to appeare where these words Cum pertin. be requisite to be used to make the advowson passe and where not The first case is in 6. E. 3. 44. Fitz. h. title quare imp pla 40. which is that if the third part of a Mannour with th' appurtinances be assigned in dower to a Feme the third part of the Advowson will passe to her without naming of it in expressis verbis c. So is 9. E. 2. Fitzh. Title Breife pla 844. That if one bring a formedon of the moety of a mannour Cum pertin. he by that shal recover the moety of the Advowson and the reason thereof as I conceive is because the Feme in the first case comes in upon the best possession of her Husband and in her case and in the case of the Recoveror they both come in upon an ancient right which is as well to the advowson as to the Land And these be the reasons as I conceive wherefore the part of the Advowson was to come to them by vertue of the said words Cum pertineniiis but without the said words as I conceive by the said cases no part of the advowson had come to them There is one other pretty case in 17. E 3. Fol. 38. and in 2. H. 7. Fol. 4. and 5. If there be three Coparceners of a Mannour and of an Advowson appendant and they make partition of the Mannour and say nothing of the Advowson the
got never a one So I may apply this jeast to our case Here be twelve persons in the case pretend right to the avoydance of this Church and every one of the Gentlemen by great and strang chance have taken severall courses and also have held with a severall party so that now I am assured it is much expected which of the parties I shall hold to have right to the said avodyance whereupon with the merry host I do hold that never a one of the parties in the case hath right to the Church for this time but that there is a person no named in the cause hath right to the presentment whose name I mean to conceale till I grow towards the end of my argument and therefore now I meane to distinguish and divide my case into these severall points which be as followeth The points intended in my case be 1. What a Mannor is and whether a Mannor may be devided and that two Mannors may be made of one 2. Whether the advowson doth passe with the Mannor granted or doth remaine with the thing ungranted 3. Because the Advowson lieth in another Town then where the Mannor lay whether it did pass or not by words Cum Pertin. 4. When Monsieur Avidus did present dye whether the wiâ—e should not have her Clark advanced to the benefice the rather because the Clark presented was after refused by the Bishops elect 5. If after that Sir Monsieur Avidus became a recusant convict whether the presentment be transferred over to the Vniversity of Cambridg by the statute of 3 Jacobi so ought to be conferred upon their Clark Sir Ignoramus or that he must be put to seek out a benefice in some other place 6. Whether the Jure Patronatus be well awarded by the Bishop elect or not and whether the verdict of the Jury nas according to Law or no 7. If the refusall of the Clarkes was done upon a iust ground or no and whether notice was necessary or not 8. If it be such a Simony committed by and between Sir Simon and his Clark as that thereby the Clark lost his benefice and Sir Simon his presentment hac vice and whether the King may present by the statute XXXI Eliz or not 9. Whether the levesque eslie might present by laps 10. What is the preson to whom the presentment doth belong if none of the parties aforesaid have right according as I hold And for the Argument of the first point what a Mannor is Mr. Bracton saith quod est Capitale mesuagium ad quod possint diversa pertinere Master Plowden in Hill and Graunges case defineth a Mannor to be quoddam Compositum of demesnes and services and I doe hold that a Mannor iss a little Common-Wealth and is compounded of necessity as things and causes without the which it cannot be nor have perfect essence which three things be 1. Scitum pro habitatione Domini pourson delite demesnes for his profit 2. Services to be done by the Tennants testifying obedience 3. And a Court Baron for the execution of justice amongst the Tennants And these be all the things which be of necessity required in the essence of a perfect Mannor For if any of these be wanting there is but an Nuncupative Mannor as it is tearmed in Sir Moyle Finches case in the Lord Cooks rep or rather as I may more fitly terme it And imaginary Mannor Nomini vulgari appellatione non in re in opinione Jurisperitorum There be divers things which be not required ex rei necessitate to the making of a Mannor yet for divers respects and considerations they be necessary to appertaine thereunto as warrens of Counyes Chases and Parkes for the Lord to use for his deletation villenes regardants to doe the Lords works piscaries for provision in his House and advowsons for the advancement of men skilfull in Religion and many other things of the like nature but all these be but instrumentall adjuvants and supplements and are nothing to the essence of a Mannor and yet they be necessary to be had therewithall either for the profit or pleasure they do bring in their severall kinds So that it is holden in our books that by the grant of a Mannor the Sâ—ite demesnes services and Court Baron do passe but the Warrens Parkes Chases Piscaries and things appendant do not passe to the Grauntee by the grant of the Mannor without the words cum pertin. as appeareth in 8. Hen. 7. sol 4. b. But whether or no an advowson appendant will passe without the words cum pertin. by the graunt of the Mannor hath been questioned in our bookes and Mr. Perkins title grants fol. and in 44. Edw. 3. fol. 40. and many other books be that will passe without the words cum pertin But 8. Hen. 7. aforesaid is to the contrary and surely I can see no perfect reason wherefore it should passe per-Nomen Manerii without the words cum pertin. more then other appendants and appurtenants will do considering it hath alwayes the word appendant with it supposing it to depend and belong to a Mannor and not to be parcell and it is also in pleading said Pertinere unlesse the old conceit hath wrought the opinion of men to be that it is parcell of the Mannor because Livery and seisin might have bene made of it but the Law in that case being altered I see no reason but that may stand in equipage and equall termes with a villeine regardant which will not passe without the words cum pertin. But generall opinion doth sway the other way and therefore I leave it where I found it and yet I intend to prove hereafter that as this case is these words cum pertin. must be materiall to passe the advowson or else the word Mannor will faile Sir Symon the wicked grauntee when he should stand most need of it It is fit in the handling of this point to dispute whether a Mannor may be made at this day or not I hold it cannot the reasons whereof are fit to be set forth and declared I confesse that the Law is taken in 33. H. 8. in Brookes Cases pl. 2 10. in 35. H. 8. plac 274. in the same Book and in Sir Moyle Finches Case That a Mannor cannot be made at this day Although a man gives divers parcells of Land Seperaliter in taile Tenandum of his chiefe Mansion-house and some men have been of opinion that Mannors might have been made untill the Statute of Westm. the third of Quia Emplores terrarum did take place because that Statute took away the Fesans of tenures Iator veray seigniour veray tenants which must be and concurre where there shall be a Mannor but I do hold for mine owne part that there be two materiall causes wherefore a Mannor cannot be made De novo at this day The first because all this Realme soon after the conquest
Advowson remaineth in common undivided as it did before and the reason as I conceive is this because it stands as a thing indifferent whether partition be made of it or not and there is neither profit nor prejudice comes by the not dividing of it more then if it had been divided in the intendment of the Law But Master Stamford in his prerogative Fol. 43. 8 hath the case thus That if I. S. be seised of a Mannour to the which there is an Advowson appendent and I. S. graunteth the moity of the said Mannour Cum pertinentijs that doth not passe the moity of the Advowson without expresse mentioning of it and the reason as I conceive the case is because by way of graunt the part of the Advowson will not passe being the only act of the party and it will rather remaine then passe in a case indifferent quia potest facilius remanere quam removeri Yet all these cases differ from my case in words for that the Mannour in Law is transferred to Sir Symon the grauntee and that which remained in Monsieur Avidus was but demesnes and services in grosse if the Law be as I have taken it to be and then I take the Law to be that the Advowson will rather passe with the Mannour as cum re digniori then stay with the rest of the Demesnes and Services in grosse being in gradu inferiori So that if the rest of the matter of the case ensuing doe not hinder it then in my opinion the said Advowson were wel transfered to the Grauntee But now the point will be whither the said Advowson wil pass to the Grauntee because it lyeth not in wrangle and Jars to the which the Graunt is stinted but in L. being another distinct Town per se And I doe think that notwithstanding the Advowson will passe to the Grauntee for that it is an hereditament as well where the Mannour is wherto it is appendent as also in the Town where the Church lyeth like to the case of 21. H. 7 Fol. 6. land in Sussex is heid of a Mannour in Essex it is an hereditament in either County and the distresse taken where the land lyeth may be driven into the County where the Mannour is as appeares by 1. H. 6. 3. and 1. Eliz. Dyer Fol. 168. And the Advowson is there more properly where the Mannour is then where the Church is because the Advowson is one thing and the Church another and it is moved for a question in 15. Eliz in Dyer Fol. 323. That if a man graunt his hereditaments in D. where the vicaridg is which was appendent to the Colledg at Westminster whither that passe the Advowson so that the doubt was rather held whither the Advowson was an hereditament where the Church lay then where the Colledg was to the which it was appendant yet it was there resolved that it did passe because the view in a writ of right of an Advowson was there to be had where the Church was And againe in Dyer 2. and 3. Eliz. fol. 194. The Bishop of Lincoln was patron of a prebend in the Cathedral Church of Lincoln and the body of the prebend lay in the County of Bedford and it was held that the quare impedit should be brought in the County where the Cathedrall Church was and not in the County of Bedford where the corps of the prebend lay because the Installation which is properly recovered in this action must be in the cathedral Church where the Clark is to have Locum Stallum in choro But in a graunt which soundeth in point of profit there it is properly an hereditament also where the profit lieth that is where the parsonage is So that I suppose the Advowson did passe to Sir Symon But to make the case more perspicuous it appeares by my case that although the graunt to Sr. Symon be stinted and tyed only to Wrangle Jars as to the Mannour yet the Advowson is at liberty because it is carried by the words Cum pertinentijs which come after the Town in the case and so is not stinted to the Town of Wrangle and Jars but is left at larg And so my conceit in the case appeareth concerning the graunt of the Mannour and the Advowson and therefore I will say no more thereof but will proceed to the other points of the case And now the next point of the case is when the Church did become void and the Husband presented a Clark thereunto and dyed before his Clark was received whether now the Wife whose inheritance it was and is shall or may present her Clark and have it from the Clark of her Husband as also from the Grauntee and the rather because that upon the refusall of the Husbands Clerk it stands in case now as if no presentment at all had been made thereto A Feme covert in four severall cases is in the life time of her husband reputed in the law as a Feme sole As in 2. H. 7. If she be an executrix she may pay debts and discharge Legacies And in 10. H. 7. 20. a. A man being Cestuy que use of Land devised the same to be sold by the Executrix and made his Wife Executrix and adjudged that she might sell the same to her other Husband after the death of her first Husband And in 31. E. 1 Fitz. Cui in vita Plac. 31. The Wife of a man abjured might make alienation of her Lands or bring her cui in vita Feme Covert Sole Merchant by the Custome of London But these cases extend to prove what a Feme covert may have or do in the life-time of her Husband But my my case tendeth to what a Feme shall have after the death of her Husband which in his life-time he had power of and is now the question In the which I doe observe a quadri partite Diversity 1. That some things the Wife after the death of her Husband without doubt shall have 2. Some things she cannot have 3. Other things she shall have Sub modo 4. Other things shall go to her or to the Husbands Executors which can first obtaine them 1. And as to the first of these a Woman after the death of her husband shall have such bonds and bills for debts as were made to her before coverture and which be not recovered or received by the husband in his life time and she shall have such debts and goods remaining unaltered as she brought with her as Executrix to any person And by 7. H. 6. 1. and 9. H. 6. 52. If she brought a Lease for yeares with her and the husband dyeth without altering the property of it it shall remaine to the wife yet in the life time of the Husband he had potestatem alienandi relaxandi vel aliter disponendi of and over all the said matters 2dly It is clear that all Chattells personall as