case, f. 495. b. And that in such case the appropriation ought to be made in such special manner appears in Grendon's case, and in 8 Eliz. Dyer 244. pl. 60. The 2d reason was, that the appropriation in the case at bar was made to take effect in possession, and not in such special manner after the death of the incumbent, as it appears before it ought by the law. 1612. Priddle V. Napier. But it was resolved, that the appropriation was sufficient in law; for it is true, that the licence is general, and therefore it shall be taken in such sense, that it may take effect, and that is, to be appriated after the death of the incumbent: and when the letters patent may be taken to two intents good, in many cases they shall be taken to such intent as is most beneficial for the king; but if the letters patent may be taken to one intent good, and to another intent void; then for the king's honour, and for the benefit of the subject, they shall be taken in such manner that the king's grant shall take effect; for it was not the king's intention to make a void grant, and therewith agree 21 E. 4. 44. b. and Roger earl of Rutland's case, in the eighth part of my Reports, fol. 56. a., which is proper to be perused, and in the lord Stafford's case, in the same part, fol. 77. a., and the case of sir J. Molins, in the sixth part of my Reports, 6. a., and the lord Chandos' case, in the same part, fol. [242] 55. b., and the earl of Cumberland's case, in the eighth part of my Reports, fol. 167. a. And so it was resolved in the principal case, that the licence shall be taken to this intent, to make the appropriation to take effect after the death of the present incumbent; and eo potius, because the letters patent were ex certa scientia et mero motu. And therewith agrees a record in the book of entries, tit quare impedit, division' appropriation, where the licence of appropriation was general, and the appropriation after the death of the incumbent in these words, volens et concedens ut cedente vel decedente ipsius ecclesiæ nunc rectore, quod prædictus abbas et conventus ejusdem ecclesia corporalem possessionem apprehenderent, ac fructus, proventus et obventiones perciperent et libere haberent. And vide in eodem libro, tit. Droit 1. As to the second reason, that is mistaken; for it appears by the instrument of appropriation found within the record, that it was by express words to take effect after the death of the then incumbent, ita quod cedente vel decedente rectore dictæ ecclesiæ qui nunc est, &c. Another reason was added, that inasmuch as always the king's licence of appropriation is made to the body spiritual, to which the church shall be appropriated, and not to the bishop, &c. therefore it shall be presumed, that they would obtain it in such form that it should avail them. Also the licence of appropriation is always general, and so are all the precedents; for although the rector be alive at the time of the making of the licence, he may die, or resign, &c. before the appropriation. 1612. Priddle V. Napier. As to the second point, admitting the said appropriation had been void, it was objected, that the said act of 35 Eliz. has made it good; for thereby it is enacted and declared, "That all manors, “lands, tenements, and hereditaments, which at any time hereto"fore were the possessions of any abbey, monastery, priory, &c. "which after the said fourth day of February, in the 27th year of "H. 8. were granted or conveyed, or mentioned to be granted or conveyed, in or by any letters patent whatsoever, made by the “said late king H. 8. to any person, &c. were and shall be re"puted, taken, and adjudged to have been lawfully and perfectly "in the actual and real possession of the said late king, and of his ❝heirs and successors, at such time as the same were granted by "the said late king." And where it was answered by the plaintiff's counsel, that the said act of 35 Eliz. extended only to letters patent made by king H. 8. and the letters patent in the case at bar, were made by queen Elizabeth, and so out of the said act of 35 Eliz. [243] it was resolved, that in truth the said act of 35 Eliz. did not extend to this case, but not for the cause alleged by the plaintiff's counsel; for although it is true, that queen Elizabeth granted the inheritance of the said rectory, yet it appears by the special verdict, that king H. 8. by his letters patent indented had demised the said rectory to William Petre, doctor of law, for 21 years: and the act of 35 Eliz. enacts, "That all manors, lands, tenements, and here"ditaments, mentioned to be granted or conveyed in or by any "letters patent whatsoever, made by king H. 8. to any person or persons, bodies politick or corporate, shall be reputed, taken, "and adjudged to have been lawfully and perfectly in the actual "and real possession of the said late king, and his heirs and suc"cessors;" in which purview four things were observed: 1. The favourable penning thereof, sc. mentioned to be granted, although in effect nothing passed by the grant. 2. The generality of the words. First concerning the quality of the letters patent, sc. in or by any letters patent whatsoever, be they under the great seal, the exchequer seal, the court of augmentation seal, the dutchy seal, &c. Secondly, concerning the estate or interest which is mentioned to pass by the letters patent, which is left at large, and not restrained to any in certain; and therefore if the letters patent purport a grant for life, or for years, the statute hath as great operation, as to the purview of the act, as if the letters patent had purported a grant of an estate tail, or a fee. 3. The generality of the purview, for it extends not only to make the grant good, but to vest the manors, lands, tenements, and hereditaments of the late abbots, &c. in the actual and real possession of king H. 8. 4. And not only in king H. 8. but in him, his heirs and successors, so that the lands 66 3. Or 1612. Priddle V. Napier. shall be as well vested in the king, his heirs and successors, when the king grants the land for life or years, as where he grants it in fee-tail or fee-simple: and so the purview extends to three other cases. 1. Where any such lands, tenements, or hereditaments, "came to the hands or possession of the said late king H. 8. 2. Or which were put in charge to or for his highness in his court of exchequer, or any other courts of his majesty's revenue. by any auditor, or other officer of the said late king;" and in every of these cases the purview hath so great operation, as in cases of letters patent to vest such lands, tenements, or hereditaments, in the king, his heirs and successors. But yet it was resolved, that the said act of 35 Eliz. c. 3. did not extend to this case; for the purview has a qualification or restraint which has not been mentioned before at the bar; and that is, that in the said four cases, [244] such lands, tenements, and hereditaments," shall be reputed, taken, and adjudged, in the actual and real possession of the said late king, his heirs and successors, at such time as the same did so come to his majesty's hands or possession, or were so put in charge or granted, or conveyed by the said late king H. 8. as aforesaid; (then comes the qualification or restraint,) notwithstanding, 1. any defect, want, or insufficiency of or in any surrender, grant, or conveyance of the said manors, lands, tenements, or hereditaments, or any part thereof, to the said late king H. 8. 2. Or any other matter or cause whatsoever, by which his highness was or might have been entitled to the same:" so that the scope and purpose of the act was to vest in king H. 8. all the lands, tenements, and hereditaments which the abbots, &c. had, notwithstanding the defects aforesaid. But, if the said appropriation was void, and was not given the king by the statute of monasteries, then the prior of Montacute, in the case at bar, had nothing in the said rectory, but the advowson only, and jus præsentandi: but yet the said act of 35 Eliz. is of great use and effect, for inasmuch as the statute of 31 H. 8. gave not the king any monasteries, priories, &c. but only such as had been surrendered, granted to the king, &c. or were dissolved; or as should be surrendered, granted, &c. or dissolved; this act, in the said four cases, has supplied the defect or want of a surrender, grant, or conveyance, also of an insufficient surrender, grant, or conveyance, so that be there any conveyance to the king, or not, and if any be, although it be insufficient, the said lands, tenements, and hereditaments, are actually vested in the king, his heirs and successors. 2. If the abbot, prior, &c. had been disseised, or in any other case, where an office, scire facias, seizure, &c. was requisite to vest the possession in the king; there the latter words, viz." or any other matter or cause whatsoever, by which his highness was or might have been entitled to the same," supply all such 1612. Priddle V. means by which the king might have been lawfully entitled, and put in actual possession. Vide 33 H. 8. Brook, tit. Chose in Action 14. the question there made, where an abbot, &c. was disseised, Napier. well explained and resolved. But although there be defect in the appropriation, yet (if the rectory be in reputation appropriate, and so has been used) it is given the king by the statute of 27 H. 8. c. 38. or 31 H. 8. c. 13., and therefore in 19 Eliz., in the dean of Paul's case, it was adjudged in the king's bench, that a chantry or college, in reputation and not in law, was given to king E. 6. by the statute of 1 E. 6. within these words, "all and all manner of chan[245]teries, colleges," &c. On 27 Junii, anno 29 Eliz. in cancellar' upon an aid prier of the king, by the course of the common law, the case was between the lord St. John plaintiff, and the dean and chapter of Gloucester defendant, for the parsonage impropriate of Penmark in the county of Glamorgan; because the patron (who before the appropriation had granted the advowson to the body ecclesiastical, to which the appropriation was made) in anno 18 R. 2. was but tenant in tail, and yet it always continued as a church appropriate: and it was resolved by sir Thomas Bromley, lord chancellour of England, Gilbert Gerrard, master of the rolls, Shute and Windham justices, (whom the lord chancellour in that case associated unto him,) that this rectory in reputation was given to the king by the statute Supra 158. of monasteries. Another case was, Tr. 30 El. in camera scacc' inter T. Grimes and H. Smith, for the parsonage of Bulbenham, in the county of Leicester, which, anno 22 E. 4. was appropriated to the abbey of Sulby, and no vicar endowed there, &c. according to the purview of the acts of 4 H. 4. 12. 15 R. 2. 6. But there had continued a vicar in reputation, and the rectory had continued also as appropriated; and it was resolved, that that rectory was given to the king by the statute of monasteries. Hill. 4 Jac. reg. in canInfra 332. cellar' inter Bedel and Bear, for the church of Kumbalton, which was appropriated in anno 40 E. 3. and the defect was, that Humphrey de Bohun earl of Hereford (who granted the advowson of the said church to the body ecclesiastical, to which the appropriation was made,) was but tenant in tail; and resolved clearly, that it was given to king H. 8. by the statute of monasteries. Nota reader, In the statute of monasteries there is a saving of rights, &c. but the founders, donors, &c. are excepted out of the saving; so they are bound by the body of the act. As to third point upon the verdict, it was resolved, that forasmuch as the special matter found by the jury was not parcel of their charge, nor pertinent to the issue, (admitting that the special matter had been sufficient to have barred the plaintiff of the tithes,) it should not be regarded; for the party grieved thereby cannot have attaint, nor the witnesses punished for perjury by the statute 1612. Priddle V. Napier. of 5 El. because neither the saving of the jury, nor the testimony of the witnesses, was material to the issue; so that inasmuch as the issue is joined upon prescription in the prior and his predecessors, to hold the said 22 acres discharged of tithes a tempore cujus, they cannot give in evidence a unity of the rectory and land for 10 years only; that if any colour should be, that the same should be a discharge, it is not a discharge by prescription a tempore cujus, &c. [246] by the common law, but by the statute of 31 H. 8. So that for the insufficiency and impertinency of the points and parts of this prolix record, the other justices did not speak to the fourth point of the verdict. But the chief justice (for the better direction of this and such other cases) did declare, that the point had been resolved before, and the causes and reasons of the resolution thereof. It was a long time, in all the courts at Westminster, a great question upon the said branch of the statute of 31 H. 8. and the cause of the doubt thereof stood upon two considerations: 1. Upon consideration of the nature and quality of tithes before the said act. 2. Upon the words and purview of the said branch of 31 H. 8. And as to the first, quota pars, i. decima pars, which we call tithes, is an ecclesiastical inheritance collateral to the estate of the land, and of their proper nature, due only to an ecclesiastical person by the ecclesiastical law, and therefore no unity of possession can either extinguish or suspend them; but they, notwithstanding any unity, remain in esse, so that they may be demised or granted to any spiritual man, notwithstanding any such suspension. Tithes are more collateral to land than a warren, which the owner of the land has in it; for, by feoffment of the land, without excepting the warren, the warren is extinct, as it is held in 35 H. 6. 56. a. But, if a prior, who has a parsonage impropriate, enfeoffs another part of the glebe, yet he shall have tithes, against his own feoffment, as it is held in 42 E. 3. 13. a., and they are not like a leet; and yet if the lord of a leet purchases land within it, his leet is not suspended, nor (if he makes a feoffment of the said land) is his leet in it extinct, as it is held in 7 E. 2. tit. Avowry 211. and 8 Ed. 2. ibid. 212. But he has an inheritance by the common law in the leet, which is descendible, and which he may grant over to whom he pleases: but such inheritance a layman cannot have in tithes by the common law, neither shall they pass by such words as temporal inheritances shall pass, and therefore Mich. 31 & 32 El. in a prohibition betwixt John Parkins and Thomas Hinde parson of Babington in the county of Somerset, the case was, that the said par- Supra 161, son by deed indented leased his glebe cum proficuis et commoditatib' eidem spectantib' for 95 years, rendering rent pro omnibus exactionib' et demandis quibuscunque dicta rectoriæ pro clauso prædicto spectantibus; and the question was, if the lessee should have the said close |