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nisi specialem inde habuerint concessionem per scriptum convertionis, mentionem faciens, quod hoc facere possint. This presseth not the question, for no man doubts but it will excuse in an action of waste; and again nisi habeant specialem concessionem may be meant of an absolute grant of the trees themselves. And otherwise the clause absque impetitione vasti taketh away the force of the statute and looseth what the statute bindeth, but it toucheth not the property at common law. .
For Littleton's case in his title of conditions, where it is Littleton. said that if a feoffment in fee be made upon condition, that the feoffee sball infeoff the husband and wife, and the heirs of their two bodies; and that the husband die; that now the feoffee ought to make a lease without impeachment of waste to the wife, the remainder to the right heirs of the body of her husband and her begotten; whereby it would be inferred, that such a lessee should have equal privileges with tenant in tail: the answer appears in Littleton's own words, which is that the feoffee ought to go as near the condition, and as near the intent of the condition, as he may, but to come near is not to reach, neither doth Littleton undertake for that.
As for Culpepper's case, 2 El. f 184., it is obscurely put, and Culpepper's concluded in division of opinion; but yet so as it rather makes Dyer, f. 184 for us. The case is 2 Eliz. Dyer, fol. 184. and is in effect this. A man makes a lease for years, excepting timber-trees, and afterwards makes a lease without impeachment of waste to John a Style, and then grants the land and trees to John a Down, and binds himself to warrant and save harmless John a Down against John a Style ; John a Style cuts down the trees. The question was, whether the bond were forfeited ? and that question resorts to the other question ; whether John a Style, by virtue of such lease could fell the trecs ? and held by Weston and Brown that he could not : which proves plainly for us, that he had no property by that clause in the tree; though it is true that, in that case, the exception of the trees turneth the case; and so in effect it proveth neither way.
For the practice: if it is so ancient and common, as is con- Practico. ceived ; yet since the authorities have not approved, but condemned it, it is no better than a popular crror: it is but pedum visa est via, not recta visa est viu. But I conceive it to be urither ancient nor common. It is true I find it first in 19 E.
II. (I mean such a clause), but 'tis one thing to say that the clause is ancient, and it is another thing to say, that this exposition, which they would now introduce, is ancient. And therefore you must note, that a practice doth then expound the law, when the act, which is practised, were merely tortious or void, if the law should not approve it; but that's not the case here, for we agree the clause to be lawful; nay, we say that it is in no sort inutile, but there is use of it, to avoid this severe penalty of treble damages. But to speak plainly, I will tell you this clause came in from 13 of E. I. till about 12 of E. IV. The state tail, though it had the qualities of an inheritance, yet it was without power to alien: but as soon as that was set at liberty by common recoveries, then there must be found some other device, that a man might be an absolute owner of the land for the time, and yet not enabled to alien, and for that purpose was this clause found out: for you shall not find in one amongst a hundred, that farmers had it in their leases ; but those that were once owners of the inheritance, and had put it over to their sons or next heirs, reserved such a beneficial state to themselves. And therefore the truth is, that the flood of this usage came in with perpetuities, save that the perpetuity was to make an inheritance like a state for life, and this was to make a state for life like an inheritance ; both concurring in in this, that they presume to create fantastical estates contrary to the ground of law. And therefore it is no matter though it went out with the perpetuities, as it came in; to the end that men that have not the inheritance should not have power to abuse the inheritance.
And for the mischief, and consideration of bonum publicum, certainly this clause with this exposition tendeth but to make houses ruinous, and to leave no timber upon the ground to build them up again. And therefore let men in God's name, when they establish their states, and plant their sons or kinsmen in the inheritance of some portions of their lanıls, with reservation of the freehold to themselves, use it, and enjoy it in such sort, iis may tend ad ædificationem, and not ad destructionem ; for that's good for posterity, and for the state in general.
And for the timber of this realm, 'tis vivus thesaurus regni; and 'tis the matter of our walls, walls not only of our houses, but of our i-land : so as 'tis a general disinherison to the kingdom to favour that exposition, which tends to the decay of it, being so great already; and to favour waste when the times thenselves are set upon waste and spoil. Therefore since the reason and authorities of law, and the policy of estate do meet, and
that those that have, or shall have such conveyances, may enjoy - the benefit of that clause to protect them in a moderate manner,
that is, from the penalty of the action, it is both good law and good policy for the kingdom, and nut injurious or inconvenient for particulars, to take this clause strictly, and therein to affirm the last report. And so I pray judgment for the plaintiff.
The manor of Alderwasley, parcel of the Duchy and lying out of the county Palatine, was (before the Duchy came to the Crown) held of the King by knight-service in capite. The land in question was held of the said manor in socuge. The Duchy and this manor parcel thereof descended to King Henry IV. King Henry VIII. by letters patent 19o of his reign, granted this manor to Anthony Lowe, grandfather of the ward, and then tenant of the land in question, reserving twenty-six pounds ten shillings rent and fealty tantum pro omnibus servitiis; and this patent is under the duchy seal only. The question is how this tenancy is held, whether in capite or in socage.
The case rests upon two points, unto which all the questions arising are to be reduced. The first is, whether this tenancy being, by the grant of the King of the manor to the tenant, grown to an unity of possession with the manor, be held as the manor is held, which is expressed in the patent to be in socage.
The second, whether the manor itself be held in socage according to the last reservation, or in capite by rerivor of the ancient seigniory, which was in capite before the Duchy came to the Crown.
Therefore my first proposition is, that this tenancy (which without all colour is no parcel of the manor) cannot be comprehended within the tenure reserved upon the manor, but that the law createth a several and distinct tenure thereupon ; and that not guided according to the express tenure of the
IS. C. in Court of Wards, 9 Co. 123., where the decision was adverse to this argument. I do not know whether there was any way in which the cause could be removed into the King's Bench.
hurt by a re
law, than by many suppressions or concealments.
manor, but merely secundum normam legis, by the intendment and rule of law, which must be a tenure by knight-service in capite.
And my second proposition is, that admitting that the tenure of the tenancy should ensue the tenure of the manor, yet nevertheless, the manor itself, which was first held of the Crown in capite, and the tenure suspended by the conquest of the Duchy to the Crown, being now conveyed out of the Crown under the duchy seal only ; (which hath no power to touch or carry any interest, whereof the King was vested in right of the Crown;) 'tis now so severed and disjoined from the ancient seigniory, which was in capite, as the same ancient seigniory is revived, and so the new reservation void, because the manor cannot be charged with two tenures.
This case concerneth one of the greatest and fairest flowers Theking's te. of the crown, which is the King's tenures, and that in their like more creation, which is more than their preservation : for if the rules for dentinin vin, and maxims of law in the first raising of tenures in .capite be weakened, this nips the flower in the bud, and may do more ments. hurt by a resolution in law, thin the losses which the King's tenures do daily receive by oblivion or suppression, or the neglect of officers, or the iniquity of jurors, or other like blasts, whereby they are continually shaken. And therefore it behoveth us of the King's council to have a special care of this case as much as in us is to give satisfaction to the court. Therefore before I come to argue these two points particularly, I will speak something of the fivour of law towards tenures in capite, as that which will give a force and edge to all that I shall speak afterwards.
The constitution of this Kingdom appeareth to be a free Noland in the Monarchy in nothing better than in this; that as there is no England land of the subject that is charged to the crown by way of tribute, or tax, or tallage, except it be set by parliament; so 1 on the other side, there is no land of the suliject but is charged " to the crown by tenure, mediate or immediate, and that by the grounds of the Common Law. This is the excellent temper and commixture of this estate, bearing marks of the sovereignty of the king, and of the freedom of the subject from tax, whose possessions are frodalia, not tributaria.
Tenures, according to the most general division, are of two matures, the one containing matter of protoction, and the other
buie, und all land charged by way of te liure.