the whole grant both for the land and tenure was the point wherein they did differ 4. And for the clearing of that they did enquire what the reservation of a tenure is to the grant Whither it be a part of the grant And Modus Concessionis or vvhither it be a distinct thing and Aliud from the grant as this Case is For if as they that argued for the Letters Patents held the reservation of the tenure and the grant of the land bee Aliud Aliud two distinct things in the Consideration of the vvhole grant made and the authoritie given by the said Commission for the making thereof then peradventure the patent may be voyde as to the tenure and yet good for the grant of the land But if the reservation of the tenure be incident unto the authoritie and included vvithin it and the reservation of the tenure and the grant of the land make up but one entire grant so that the one is a part of the other and the Reservation of the tenure bee Modus Concessionis Then the granting of the land reserving a diverse or contrary tenure to that vvhich their Authority did warrant them to reserve is a doing of Idem alio modo And so the whole act is voyde They held that the Reservation of the tenure is Modus Concessionis and that it is not Aliud S. a thing distinct and separate from the authority of the grant of the land but implyedly included within it and incident to it Although a grant may be vvithout Habendum expresse Tenendum Reddendum or Condition yet when they or any of them are added they are de modo Concessionis and doe direct and rule the grant 1. For the Habendum The proper office of the Habendum is to limit the estate yet sometimes it may 1. Alter the estate in the premises 2. Diminish or enlarge 3. Give to a stranger 4. Make the grant voyde 1. It may alter the estate in the premises As where land is given to two in the premises Habendum the one moytie to the one and the other moytie to the other by the premises they have a joynt estate the Habendum makes them tenants in Common Litt. 66. So where land is given to two Habendum to the one for life the remainder to the other By the premises they should have a joynt estate in possession But the Habendum doth alter that and maketh the one sole tenant of the freehold for life and the other sole tenant of the Remainder 8. E. 3. 320. feoffments faits 73. 2. It enlarges or diminishes the estate that would passe by implication in the premises and so destroyes the implication This is common in every grant 3. It gives to a stranger not named in the premises of the grant As if a man gives lands to I.S. Habendum with A. his daughter in Frank-marriage there the wife not named in the premises by the Habendum takes a joynt estate with her husband this Case is vouched in Pl. Com. 158. to be in 4. E. 3. which being not found in that yeare it is there so left without any further reference but you shall finde it in 5. E. 17. so Cokes Instit sect 17. yet vid. 4. E. 3. 4. So likevvise where a lease is made to A. Habendum for twentie yeares the Remainder to B. and his heires here B. gaineth an immediate freehold by the Habendum and yet he is not named in the premises of the deede Plowd Com. 158. 4. It will make the grant voyde As if I have a Rent in Fee and I grant it to another if I stay there the grant shall be for life But if I say further Habendum after the death of I.S. there all shall be voyde Plowd Com. 152. 156. So if the King grants lands by letters patents Habendum from a day to come there the whole grant is made voyd by the Habendum 5. Coke 93. Barwicks Case He in the Reversion for life grants his estate Habendum after Michaelmas and after Michaelmas the tenant atturnes yet Resolved that the grant is voyde though if there had beene no Habendum it had beene good by the premises of the deed Bucklers Case 2. Coke 55. In all these Cases the Habendum being voyde makes voyde the grants which would have beene good without it As the Habendum hath these severall operations in the grant so hath 2. the Reddendum As an estate by implication shall be controlled by an expresse limitation so an implyed Reservation shall be controlled by an expresse Reservation A man makes a lease rendring rent and does not say to whom the rent shall be paid this by implication shall be to the Lessor and his heires But if the words be to the Lessor the heire shall not have it 31. H. 8. Dyer 45. 12. E. 3. Ass 86. Plowd Com. 171. in Hill and Granges Case 10. E. 4. 18. 21. H. 7. 25. The Reservation of a Rent in some Cases shall make severance of the grant and make severall grants and severall reversions As if a man makes a lease of three Mannors reserving twenty shillings for one five pound for another and twenty pound for the third there are severall Reversions and there shall be severall Avowries 14. Eliz. Dyer 308. VVinters Case 9. E. 3. 12. 5. Coke 55. Knights Case 3. For the Tenendum The proper office of the Tenendum is to reserve the tenure and to toll the tenure by implication Before the statute of Quia Emptores terrarum If a man made a feoffment the feoffee held of the feoffor by such services as the feoffor held over But if other services were Reserved then the feoffee held by such services as were reserved That the Donee in tayle shall hold of the donor as the donor held over is Regularly true if the donor make no speciall Reservation for then the speciall Reservation excludes the tenure which the Law would create Cokes Instit sect 19. vid. 34. H. 8. Dyer 52. 4. For the Condition That does likewise direct and rule the grant the Condition does change the qualitie of the grant and makes the estate Conditionall and defeasible which otherwise would be absolute and indefeasible So that all these viz. the Habendum the Reddendum the Tenendum and the Condition are de modo Concessionis and doe Rule and direct the grant the first limits and sets forth the quantity the other describe the quality of the estate And of all these the Tenendum is inseparably annexed to the estate the rest may bee determined and yet the estate continue but the tenure cannot be determined as long as the estate continues 1. The Condition may be released 2. The Rent may be released 3. The estate may be enlarged But the tenure cannot bee destroyed It may bee transferred from one to another in Case of Common persons But a Tenure in Capite cannot be transferred or extinct by any release or grant for it is an incident inseparably annexed to
vpon the same reason It vvas adjudged in B. R. Betweene one Hegge and Crosse 33 et 34. Eliz. vvhich you may see in Bucklers case 2. Coke 55. Where the Case vvas Tenant for life makes a lease for yeares and after grants the reversion to A. Habendum from a day to come for life after the day the lessee for yeares attorns in that Case the Habendum is voyde yet that voyde Habendum makes voyde the vvhole grant and excludes the implication of Lavv in the premisses and no estate shall passe by implication of Lavv in the premisses against the expresse limitation of the party in the Habendum see the Cases cited before p. 26. So our Tenendum although it be voyde yet the expresse reservation in the Tenendum shall exclude the implication of Lavv. For that opinion of Martyn in 4. H. 6. 22. that vvas Cited on the other part that if land be given in frank-marriage reserving a rent the reservation of the rent is voyde by reason of the implyed tenure in frankmarriage that opinion as vvas said may vvell be doubted of for vvee find as good Authority against it in the old Tenures fol. 211 That the Reservation of the rent is good and destroyes the frank-mariage and makes it a Common Estate tayle But the best opinion is that both of them shall stand togither S. the gift in frankmarriage and also the Reservation of the rent S. that the donce in frankmarriage shall hold quitt of the rent untill the fourth degree be past and then the rent shall take effect and so vvas the opinion of the Iudges in VVebb and Potters Case in 24. Eliz. and so are the bookes to be understood 13. E. 1. formedon 63. 31. E. 1. tayle 31. 26. E. 3. grants 75. et 26. Ass 66. For the Case of Littleton 140. A man seised of certaine tenements vvhich he held of his Lord by Knights service at this day grants by license the same tenements to an Abbot in frankalmoigne the Abbot shall hold immediately by Knights service of the same Lord of vvhom his grantor held and shall not hold of his grantor in frankalmoigne In that Case they say the expresse tenure being voyde a tenure by implication of Law does arise It vvas Answered there is a difference betvveene the Kings Case vvhich it the Case in question and the Case of a Common person For the grants of a Common person the rule of Law is that the grant shall be taken most strongly against the grantor For the Kings grants the rule is that they shall be taken most beneficially for the King and most strong against the patentees And vvee have another rule that the grant of the King shall not be extended to passe any thing contrary to the intent of the King expressed in his grant And if the grant cannot take effect according to his intent expressed in his grant the grant is voyde And therefore for the rules put by them that argued on the other side that the patents of the King shall be taken in such sence and to such intent that they shall be good c. It may be Answered that there is another ground in our Lavv that when the King is deceived in his grant so that it cannot take effect according to his intent expressed in his grant the grant is voyde so the best a exposition is to make all these rules to agree together And therefore the rules put on the other side are true vvith this limitation S. Except the King be deceived so that his grant cannot take such effect as he intends by his expresse grant In the Lord Lovells Case 18. H. 8. B. Pat. 104. The King excerta scientia et mero motu grants lands to one and to his heires males if a Common person had made such a grant the Lavv vvould say that the vvord males vvere voyde and the fee simple should passe But vvill the Lavv make such a construction in the Kings grant No there the grant shall be voyde for he vvas deceived in his grant in that it cannot take effect according to his intent expressed in his letters patents And so in the Case of 7. H. 4. 42. 21. E. 3. 47. The Earle of Kents Case If the King hath a vvard of land or a lease of land for yeares and by his letters patents grants the land to another and his heires the grant is voyde and it shall not amount by construction to a grant of his estate or interest vid. 21. Ass 15. And the other bookes Cited in the Case of Alton VVoods upon this ground 29 Eliz. in the Exchecquer the Case vvas King H. 7. was seised of tvvo mannors S. de Ryton et condor he grants ex certa scientia et mero motu totum illud manerium de Ryton et condor adjudged that the grant vvas voyde The like Case vvas resolved 39. Eliz. vvhere the queene vvas seised of the Mannors of Millborne and Saperton in the County of Lincolne and the queene grants ex certa scientia mero motu totum illud Manerium de Millborne cum Saperton in Com Linc and it vvas held that neither of the Mannors did passe And yet if a Common person had made such grants the grantee in both the said Cases should have had both the Mannors So in our Case the King is deceived in his grant in that his grant cannot take effect according to his intention therein expressed For the Kings intention is to make a grant agreeable in all things to the Authority given to the Commissioners by the sayd Commission And that appeares plainely by the very vvords of the letters patents for the vvordes are Sciatis quod nos c. virtute ac secundum intentionem et effectum of the said Commission Dedimus et Concessimus c. as in the patent and he conceived that the vvarrant made by the Commissioners for passing the patent which here vvee call the fiant had bene according to the intent and effect of the said Commission And upon that warrant vvhich exceeded the Authority given to the Commissioners this patent vvas past yet still vvith a reference to the intention and effect of the Commission Now this grant cannot by any possibility take effect according to the Kings intention therein expressed for the Kings intention in the beginning of the grant is that it shall be according to the intention and effect of the Commission vvhich must be a tenure by Knights service in capite either by expresse Reservation or by implication and operation of Lavv. And the tenure reserved in the patent is a tenure by Common Knights service as of the Castle of Dublyn differing altogether from the intention and effect of the Commission so as it is not possible that this tenure expressely reserved can be according to the intention and effect of the Commission or that the intent and effect of the Commission can any vvayes acoord with the tenure expressely reserved in the patent So as it
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
times it is probable the Lavves of both nations did not much differ As for the times after it appeares they did not by comparing their Regiam Majestatem and our Glanvill Neither is the bare Conjecture of Sir Henry Spelman sufficient to take avvay the force of those Lavves vid. Spelman Glossar verbo Feudum Vpon all this they did Conclude That upon consideration of the Authority given and grant thereupon made the reservation of the tenure cannot bee said to bee Aliud S. a separate and distinct thing from the Authority of granting the land but rather included within it And that the Reservation of the tenure though it bee not ipsa concessio the grant it selfe yet it is Modus concessionis and a part of the grant And that therefore the Authority being not pursued in that the whole grant is voyde 5. And so it was Resolved for these reasons and upon these Authorities 1. The Maine and principall reason vvhy they did Resolve that the Letters patents vvere voyde in the vvhole was because that here the Commissioners had but an Authoritie and that Authoritie they have not pursued By the Commission they were to grant the lands and to reserve a tenure in Capite or to leave the Reservation to the lavv Now there is a tenure by common Knights service reserved so they have executed their Authority in another manner then the Commission vvarrants they have done Idem alio modo And therefore by the rule of the bookes before cited the vvhole grant is voyde It vvas agreed by all that if the Commissioners here had granted the land Reserving a tenure in Capite the Patent vvould have beene good and effectuall or if they had granted the land and reserved no tenure there because the Lavv in that Case vvould rayse a tenure in Capite such a grant vvould have beene good and well warranted by the Commission 2. This Commission is a Nude Authoritie for the interest is in the King and the Commissioners have onely a bare Authority to grant and therefore it ought to be pursued most strictly both in matter and manner and the execution of it is to be expounded strictly This Ansvveres all the Cases that have beene put on the other side where an Authoritie in some sort may be executed alio modo and yet good as the Case of Stanton and Barnes where by Custome the Lord might grant Copy-holds in fee and hee grants a Lesser estate simply or a lesser estate vvith a remainder over And the other Report that hath beene cited betweene Downes and Hopkins where the Custome was to grant Copies for two lives and he grants to the husband for life and after to the wife durante viduitate The Case of Hatt and Arrowsmyth where a Copy-holder for life was licensed to make a lease for yeares si tam diu vixerit and hee makes a lease absolutely without that limitation The Case of Baron Feme making a lease upon the Statute of 32. H. 8. The Case of 3. H. 7. where upon a licence to grant an Annuity he grants it with clause of distresse And yet for that Case see the Case of Suttons Hospitall 10. Coke The Case of Priddle and Napper and all the other Cases that have beene put upon this ground For in all those Cases there is an interest coupled with the Authority and therefore they are not to bee compared to this Case in which there is only a meere and a bare Authority 3. This Commission is a publique authority of Record to which the subjects may resort and of which they ought to take Notice to passe according the Commission at their perill And therefore if either through ignorance or Carelesnesse or otherwise they neglect to have their patents drawne pursuant to the Commission the fault is their owne they cannot transferre the blame of this to the King as in like Case it is resolved upon the Commission of Bankrupts 2. Coke 26. So at the common Law a patent without recitall of a lease for yeares of Record is voyde for the subject may resort to the publique Record The King intends Ardua Regni This answeres the objection touching even that honour of the King that hath beene spoken of and cleares his performance of his part in this Case For the King in favour of his Subjects of this Realme hath granted a good and gracious and effectuall Commission upon which many legall and good and effectuall Letters Patents have beene made that have beene allovved and approved for good But if upon this Commission so good and gratious for the subject the subject shall contrary to the authoritie given by the Commission obtaine Letters patents in fraud and deceit of the Crowne to defeat the King of his tenures in Capite a principall flowre of his Crowne if these Letters patents bee voide where 's the fault certainely in the subject that contrary to the Authoritie of the Commission obtaines this grant in deceit of the King to defeat him of his tenure which vvas but an ill returne for so great and gratious a bountie And that Objection of the operation of law Answeres not the intention of the partie in this case for plainely and apparently the meaning of the Patentee vvas to suppresse the King's tenure in Capite and to hold by a meane and inferiour tenure which was contrary to the authoritie of the Commission and in deceit and prejudice of the King Now that Patents obtained in deceit and prejudice of the King are clearely and wholly and utterly voyde to all intents and purposes is a ground so obvious so positive and infallibly true that they would not cite any booke or authoritie to prove it for it is marvellous cleare and granted of all sides that patents obtayned in deceit and prejudice of the King are altogither voyde If any desire an Authoritie he may have a Cloud of Authorities in the Case of Alton VVoods Coke 1. Report 4. This is an Authoritie appearing within the body of the Record of the Letters Patents themselves for the Letters Patents are ex Assensu of such and such Commissioners virtute secundum intentionem Commissionis c. Now the tenure in Capite being as strongly implied in the Commission as if it had beene expressed as it hath beene confessed of the other part for it is upon this implication that they say the Patent is voyde for the tenure it is as much as if the King had given Commission to grant the land to hold in capite and not otherwise Now in so much as the Commissioners have granted the lands in other Manner and all this appeares within the body of the Record of the letters patents themselves the patent is voyde in the whole for Construction is to bee made upon the whole patent and not upon any part of it distinct as it is Resolved in Bucklers Case 2 Coke 55. And this hitherto hath beene alwayes the constant Resolution of all the Iudges of Ireland our Predecessors That if
upon Letters of warrant or Commission Letters Patents be made varying in any point materiall from the warrant or Commission and all this appeares within the body of the Letters patents themselves that the Letters patents are all utterly voyde And this hath beene ever agreed upon by reason of the difference betweene the manner of passing of Letters patents in England and Ireland But where the warrant or Commission and the variance doe not appeare within the Letters patents how it shall be ayded for the King by Averment or otherwise hath beene some doubt and Question 5. Although that it be true that this commission is of a vast and large extent yet it is not boundlesse for the law alwayes bounds and circumscribes these ample Authorities with reasonable and equall constructions without prejudice to others as it was resolved upon the Commission of Sewers upon which we have the Reported Cases in 5. Coke 99. Rookes Case 10. Coke 138. This Commission of Sewers gives power and Authoritie to the Commissioners To proceede according to their wisedomes and discretions which is a most ample power yet the law does bound and circumscribe it with an equall Construction S. that their proceedings ought to bee bounded with the rules of Reason Law and Iustice and that their taxes be equall and that all persons that bee subject to the danger or receive benefit by the Reparation be contributary to a ratable and equall contribution of the charge And if they doe otherwise their ordinances are voyde and they cannot make new inventions as Artificiall Mils for casting out of water c. For these generall Commissions are all accompanied in law with an equall and reasonable construction for the execution of them So this Commission is a most ample and large Commission for the securing of the estates of the subjects in their lands but yet it ought to bee so executed according to lavv reason and justice that they doe not prejudice the King in his tenures contrary to their warrant 6. Because that this Reservation of a meane tenure is in other manner than the Authority warrants and to the dammage and prejudice of the King If the Commission were to grant an estate for life and they grant an estate tayle or if the Commission vvere to grant in tayle and they grant in Fee All the patent is voyde because they doe it in other manner then the authoritie warrants for the Habendum is Modus Concessionis If they reserve another Rent then is vvarranted by the Commission or parcell an entire rent where the rent in charge ought to bee reserved although that it bee severall upon the survey yet the whole patent is voide because that they doe it in other manner then the Authoritie vvarrants for the Reddendum is Modus Concessionis Why then shall it not bee the same reason in this Case for here they reserve another tenure then that vvhich is vvarranted by the Commission and therefore they have executed their authority in other manner then their Authoritie warrants for the Tenendum also is Modus Concessionis It was granted by them that argued on the other side that if it bee prejudiciall to the King the whole Patent shall be voyde Novv it is most apparant that this implyed tenure if it be admitted will bee greatly prejudiciall to the King for the King shall loose his tenure and the fruite of his tenure in most Cases for ever and in all Cases for a long time and neither the Master nor the Atturney of the Court of VVards can helpe it And for that the course of Patents here in Ireland was observed First the Commissioners give warrant for drawing of the Patent and the reservation of this meane tenure the Kings Councell draw the Patent accordingly and so it passes the signature of the Lord Deputy the privy signet and the great seale then it is enrolled in the Chauncery All this vvhyle it is taken according to the tenure expressed in the patent vvhen it is enrolled it is transcribed into the Exchecquer and the transcript delivered into the Exchecquer by the master of the Rolls the Lord Chiefe Baron receives it and delivers it to the second Remembrancer and he puts it in charge according to the tenure expressed the Escheator and Feodary informe themselves of the Kings tenures there vvhere if they make enquiry the patent is produced in vvhich an expresse tenure is reserved they cannot judge the contrary and so it passes according to the expresse tenure And so have the Letters patents novv in question passed and the King by colour of them hath lost the profits of the Land and the benefit of the tenure 7. The expresse reservation in the Letters patents excludes the reservation and implication of Law Although as in the case in question it tend to make voyde the whole grant it is a sure rule in Law expressum facit cessare tacitum If the King vpon his Letters patents reserve no tenure it shall be a capite tenure but if another tenure be expressed that shall prevayle 33. H. 6. 7. per prisot In VVheelers Case 6. Coke 6. Where in a patent the vvordes of the Tenendum vvere Tenendum de nobis per servitium unius Rosae pro omnibus servitijs It vvas objected that the tenure as it is expressed cannot stand for that no tenure can bee vvithout fealty and the vvordes are per servitium unius Rosae pro omnibus servitijs 2. It vvas objected that in Case vvhere no tenure is Reserved or in Case vvhere it is expressed to be absque aliquo inde Reddendo the tenure shall be Knights service in Capite And therefore it vvas urged that the tenure in the principall Case must needes be a Capite tenure by Knights service and that the tenure expressed should be voyde and give place to the better tenure for the King These are strong objections yet Resolved in respect of that favour that is given to expresse Reservations that in the said Case fealty that is an incident to all services shall be admitted to stand vvith the vvordes and then the tenure expresly reserved vvas so compleate that it might vvell exclude the Knights service tenure vvhich othervvise the Lavv vvould have implyed Hereby may appeare the favour that is given to expresse Reservations and tenures that thereby a tenure in Capite by Knights service shall be excluded a tenure vvhich shall arise vvhere nothing is Reserved vvhich shall arise though the vvordes bee absque aliquo inde reddendo vid. Sr Iohn Molins case 6. Coke 5. It is agreed on the other side that vvhere the expresse tenure is good there it controlls the implyed tenure but in our Case it is voyd And vvhere a tenure expressed is voyde a tenure by implication of Lavv may arise But it vvas Resolved that although the expresse tenure bee voyde yet no tenure by Implication of Law shall arise against the expresse Reservation And so in the Case of a voyde Habendum vvhich stands
is very plaine and manifest that the King is deceived in this grant and that it cannot take effect according to his intention therein expressed For the Authorities on vvhich their Resolution vvas grounded The principall Case vvas that of 12. Ass 24. vvhich as it vvas sayd vvas a Iudgement in effect in the point A Iudgement in a tyme vvhen the Law vvas as flourishing and the Iudges as learned as in any tyme either before or since A Iudgement approoved in all ages subsequent 26. Ass 39. 11. H. 43. c. And no Authority in all our bookes against it for the materiall Cases that have bene put on the other side are of Authorities accoupled vvith an Interest and by Consequence doe not come to the point in question And vvee see that the Authority of this Iudgement is so great and cleare that it is confessed by them that argued on the other part But the reason of the Iudgement given by the Iudge that gives the Iudgement is denyed S. pur ceo que il fait ceo en auter manner and a nevv reason is invented S. because he does not pursue his Authority Heere vvee finde them put to a straight S. to Confesse the Iudgement and denye the reason for vvho better knevv the reason of the Iudgement then the Iudge that gave it This nevv reason S. That he hath not pursued his Authority if it be examined vvill come to the first reason for if it be demaunded why he hath not pursued his authority it must be Answered-pur ceo que il ad fait ceo en auter manner que le authority soy garrant vvhich is the reason of 12. Ass But vvee have other Authorities in the point upon the same reason that of 10. H. 7. 15. vvhich hath bene remembred per Keble the most Learned Lawyer of that tyme quant home ad authority de faire ascun fait a un auter il doit pursuer son authority en matter et en forme there is Modus concessionis and by the Case that he there puts if he does it in other forme alio modo it is voyde If I enfeoffe a man to enfeoffe another and hee leavies a fine this is voyde yet the matter in substance is the same for a fyne is but a feoffment of Record but because that hee hath done it in other manner all is voyde 11. H. 7. 13. A letter of Atturney to make liverie to I.S. or I. N. and the Atturney makes livery to both the livery is voyde in all and it is not good as to the one and voyde as to the other but voyde in the vvhole because that he hath done it in other manner then the authority warrants 8. Cooke 85. In Sir Richard Pexhalls Case If the King licenses his Tenant to alien tvvo parts of his Mannor of Dale vvhich is held in Capite and he aliens all the mannor it is voyde in the vvhole and it is not good for tvvo parts and voyde for the third And the reason is because he doth it in other manner then the license warrants vid. 10. H. 7. 13. 38. H. 8. Dyer 62. 40. Ass 38. 10. H. 7. 15. There vvas a Report cited by the Chiefe Iustice of the Common pleas and the Chiefe Baron the Case vvas in C.B. in England T.M. 2. Caroli Betvveene George Bishop of Chichester plaintiffe and Iohn Freeman defendant Intr. Pasch 1. Caroli Rot. 207. And the Case vvas this The Bishop of Chichester vvas seised in fee in the right of his Bishoprick of Allingburne parke in the County of Sussex and he and his predecessors have anciently granted the office of Keeper of this parke for life vvith the fee of five markes Anthony Bishop of Chichester 2. February 44. Eliz. by his deede granted the Office of Keeper of the parke to one Freeman for life Et ulterius concessit pro executione officij predicti the ancient fee of five markes una cum a livery Coate or thirteene shillings foure pence for it Nec non pasturam pro duobus equis una cum the vvindfalls vvhich grant vvas confirmed by the Deane and Chapter And whither this grant vvas good against the successor or voyde upon the statute of Anno 1. Eliz. Cap. 25. vvas the question In vvhich the doubt vvas vvhither this Addition of a livery Coate pasturage and vvindfalls vvill make the vvhole grant utterly voyde or if the Lavv shall make such a construction that for this addition it shall be onely voyde and shall stand good for the other vvhich vvas the ancient fee and vvell granted And by Iustice Crooke and Harvy against Yelverton the grant is voyde in the whole because that the Bishop hath not pursued the Authority given him by the statute by reason of this expresse and nevv addition and yet they professe that they had rather have given opinion for the defendant for that he vvas a poore man and an ancient servant to the Bishop and yet in this Case the Addition and nevv Augmentation is a severall and distinct clause in the grant and the things added de novo are also severall and distinct in specie from the ancient Fee of five Markes And in the argument of this Case Iustice Crooke cited a farre stronger Case to be adjudged in the case of the Archbishop of Canterbury 43. Eliz. And the Case was this Parker Archbishop of Canterbury granted the office of surveyorship with the ancient fee to one Parker Et ulterius he granted unto him pasturam pro duobus equis in the parke and the whole grant was adjudged voyde and yet here vvas a severall grant by a severall and distinct clause and of another thing severall and distinct in specie Aliud et Aliud And these Cases are farre stronger then the Case in question for here there is not a bare Authority but an interest accoupled vvith an authority And in this Case Iustice Crooke cited Scamblers Case 41. Eliz. to be adjudged that the vvhole grant vvas voyde and not good as to the man of full age and voyde as to the Infant as it hath bene cited by some that argued on the other side And so upon the whole matter they did resolve 1. That the Commissioners by this Commission have a good and legall and sufficient power and authority to grant 2. That all Letters Patents made upon this Commission in which they have pursued their authority are good and effectuall in Lavv. S. where they have either reserved an expresse tenure by Knights service in Capite or no tenure for there the Lavv implyes a tenure in Capite 3. But where the Commissioners reserve a meane tenure the whole patent is voyde 1. Because that the Commissioners have but an Authority 2. Because that this is but a Nude Authority and not accoupled with any Interest 3. Because it is a publique Authority of Record whereof the subjects ought to take notice to passe according at their perill otherwise the patent shall be in deceipt of the King 4.