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CHAPTER X.

LETTERS PATENT.

1

Lowe v. Govett, 3 B. &

Ad. 863.

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Plowd. 243. 5 Pri. 260.

CROWN grants are usually made by letters patent, and like any other assurance, they may be explained by recital1. They are, however, in general, construed upon very different principles from those which are applied to conveyances between private subjects. Being matter of record, the same attribute of conclusiveness, which is ascribed to records in general, is of course applicable to them; and being, for the most part, emanations from the bounty of the Crown, they have always, contrary to the rule which applies to all other assurances, been construed most for the Crown, and against the grantee 2. "It has been argued," observes Richards, C. B., in the King v. Capper3, "that the words ex mero motu et certa scientia reduce a royal grant to the same standard of construction as the grant of a subject, and bring it within the principle, that it is to be taken most strongly against the grantor. I am, however, not of that opinion; and although cases to that effect may be found, yet they will not bear minute investigation, when the principles on which they proceed are examined." Thus, if the King grant And see Att.lands, or a rent issuing out of them, to A. B., without any limitation of estate, the grantee takes only an estate at will, on ac- shire, 5 Pri. 269. count of the uncertainty, though, under an assurance between subjects, an estate, for the life of A. B. would have passed. On the same principle, that everything shall be taken in favour of the Crown, a grant of lands from Hen. 8 to Lord Lovell, and to his heirs male, was adjudged to be void; for the King could not grant an estate of inheritance in fee-simple to the exclusion of heirs female 5; although, in the case of a private person, such a 1 Rep. 43 b. grant would have passed an estate in fee-simple. On the same principle of indulgence to the Crown, the King's grant shall not be taken to a double intent; and therefore, if the King grant lands and the mines therein contained, it will only pass common mines,

Gen. v. Marquess of Down

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1 Case of Mines, Plowd. 336; 1 Rep. 46 b, 52 a.

2 Whistler's ca.
10 Rep. 63 a;
and see Rex v.
Bp. Rochester,
1 Mod. 195,
S. C. 2 Mod. 1;
Holland v.
Fisher, Or.
Bridg. 213.

• The King v.
Capper, 5 Pri.

217; Att.-Gen. v. Downshire,

id. 269; Ca. of

and not mines of silver and gold; for the grant is satisfied by the passing of mines of coal, lead, &c. 1.

When the grant of the King refers in general terms to a certainty, it is the same as if the certainty had been expressed in the grant; although such certainty be not of record, but lie in averment, by matter in païs or in fait. Queen Elizabeth being seised in fee, jure uxoris, of the Manor of Whitchurch, to which an advowson was appendant, granted the manor with the appurtenances (excepting the advowson) for twenty-one years; and afterwards, reciting the said demise and exception, made another grant to the same grantee with the like exception. James I., in consideration of service ac ex certa scientia et mero motu granted the manor cum suis juribus, &c. to G. H., (exceptis quæ in eisdem literis patentibus excipiuntur-mentioning the lease in reversion, and the like exception therein); and then follows this clause: et ulterius de uberiori gratia nostra et ex certa scientia et mero motu damus omnia et singula tenementa prædicto manerio quoque modo spect. &c. et uberius damus, &c., to the said G. H., and his heirs, the said manor ac cætera omnia et singula præmissa cum eorum pertin' universis adeo plene, ac integre et tam amplis modo et forma, prout ea omnia et singula præmissa aut aliqua inde parcella ad manus nostras &c. devenerunt, ac in manibus nostris jam existunt;" and if the advowson appurtenant to the said manor should pass by these letters patent, or not, was the question. It was resolved, 1st, that the advowson passed because it was clearly referred to in the grant; 2ndly, that if the words 'adeo plene ac integre' had been omitted, then it would not have passed by the first clause; but by the addition of the last clause, all the parts of the patent taking effect at one and the same time, the advowson should pass as appendant; and 3rd, though the first clause of the grant refers to the demise in which the advowson was excepted; yet by the middle clause, all tenements &c. appertaining to the said manor were granted; and the last clause granted the manor with the appurtenances &c., adeo plene, &c.2

But where general words only are used, or words which do not refer to any certainty, the Crown is not bound; for, in all cases of royal grants, express words are necessary to confer a franchise3.

By the statute, 19 Ed. 2, c. 15, commonly called the Statute the Fishery of de Prerogativa Regis, it is declared, "That when the King giveth the Bann, Davies, 55. "or granteth land or a manor, with the appurtenances, without

"he makes express mention in his deed, or writing, of knights' "fees, advowsons of churches, and deaneries when they fall, belonging to such manor or land, then at this day the King re"serveth to himself such fees, advowsons, and dowers, albeit that

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amongst other persons it hath been observed otherwise." Upon

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this it has been held1, that the act extends only to the three cases 10 Rep. 64 b. specified. Thus, a leet shall pass without express words or words equipollent, or a forest appendant to an honor. The words of this statute being "quando dominus rex dat vel concedit," and therefore, in case of restitution, advowsons and knights' service shall pass without express mention of them, or words equivalent 2. Ib. Whenever the King is misinformed in the nature of his estate, so that his grant cannot take effect according to his intent,—or where in the King's grant, there is such a misrecital, false surmise, or false consideration, as to shew that the Crown was deceived, the grant will be void. And hence, if a lease from the King be enrolled, a subsequent grant of the same estate, not reciting the lease, is void3. It seems, however, that this applies only to a lease enrolled, and where consequently the subject, having the means of knowing of its existence, is bound to communicate that fact to the King. In the case of the Earl of Rutland, it was decided, that where one is an officer for life, if the 8 Rep. 57 a. King, without reciting that such a one was an officer for life,

grants the office to another for life, the second grant is void for

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Alcock v. Cooke, 5 Bing.

4

351.

want of such recital. In the case of Alton Woods 5, Hen. 8 being * 1 Id. 26 b. tenant in tail of the Manor of Abbottesley, with reversion to him,

his heirs, and successors, granted the said manor to W. W. and to the heirs male of his body: this grant was held to be void.

If the King grant the manor of D., with the appurtenants, and all other lands, pastures, woods, et hereditamenta antehac cognita, usitata, accepta, vel reputata, ut membranum vel parcella manerii prædicti,—a wood, which was not parcel of the manor truly and in right, that is, facto et jure, shall not pass, though it be averred that the said wood, adhunc antea fuit reputat' et parcel' manerii prædicti, without saying that it had been reputed parcel time out of mind. If it had been averred, that the wood was reputed parcel of the manor time out of mind, &c., though in the case of a common person, proof of such issue might be by vulgar and diffused reputation of people of the same vill, or of other manors or vills adjoining, &c., or of the body of the county; yet, in the case of the king in such issues, as to the word

Rex v. Imber, 2 Ro. Ab. 186.

2 Alcock v. Cooke, 5 Bing. 340.

"reputation," the evidence or proof shall not be by such vulgar and diffused reputation of the people, but the proofs ought to be by some matter of record or writing 1.

There is no distinction between the privileges of the king as Duke of Lancaster, and the prerogative of the king as King of England; and therefore, an immediate grant to A., in fee, under the duchy seal, of property which was in the possession of B., under an unexpired lease from the Duchy, (such lease not being recited in the grant), has been held to be void, notwithstanding there had been an user under the grant of upwards of a century from the date of it2.

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Estates Tail, 384 0.

8. Courts of Equity, 384 p.

1. Estates in Possession.]-By the 3 & 4 Will. 4, c. 27, s. 2, it is enacted, That no person shall make an entry or distress, "or bring an action to recover any land or rent*, but within

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twenty years next after the time at which the right to make "such entry or distress, or to bring such action, shall have first "accrued to some person through whom he claims; or, if such

right shall not have accrued to any person through whom he "claims, then within twenty years next after the time at which

* The word "land" extends to every species of corporeal hereditaments, (except tithes belonging to a spiritual or eleemosynary corporation sole), and to any share, estate, or interest therein, and whether the same shall be freehold or chattel interest, and whether freehold or copyhold, or held according to any other tenure; and the word "rent" extends to "all heriots, and to all services and suits for which a distress may be made, and to all periodical sums of money charged upon or made payable out of any estate,

VOL. II.

(except moduses or compositions belonging to a spiritual or eleemosynary corporation sole)," and includes, therefore, every species of incorporeal hereditament, except tithes, advowsons, rights of common, and easements; "the person through whom" another person is said to claim, includes every mode of devolution recognised by the law, except "forfeiture;" and the word "person" extends to a body politic, corporate, or collegiate, and to a class of creditors or other persons as well as to an individual.

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