LOW S CASES OF TENURES. 273 



difference between them and our case ; wherein I shall in 

 clude an answer to all that hath been said on the other 

 side. 



For my first proposition I will divide into four .branches; 

 first, I say, where there is no tenure reserved, the law 

 createth a tenure in capite ; secondly, where the tenure is 

 uncertain ; thirdly, where the tenure reserved is impossible 

 or repugnant to law ; and, lastly, where a tenure once created 

 is afterwards extinct. 



For the first, if the king give lands and say nothing of Per Prisot in 

 the tenure, this is a tenure in capite; nay, if the king give/ ne 33 H - 6 - 

 whiteacre and blackacre, and reserves a tenure only of 8 jj^ 7&amp;gt; f 3 b 

 whiteacre, and that a tenure expressed to be in soccage; yet 

 you shall not for fellowship-sake, because they are in one 

 patent, intend the like tenure of blackacre ; but that shall 

 be held in capite. 



So if the king grant land, held as of a manor, with war 

 ranty, and a special clause of recompense, and the tenant 

 be impleaded, and recover in value, this land shall be held 

 in capite, and not of the manor. 



So if the king exchange the manor of Dale for the manor 

 of Sale, which is held in soccage, although it be by the 

 word excambium, yet that goeth to equality of the state, 

 not of the tenure, and the manor of Dale, if no tenure be 

 expressed, shall be held in capite. So much for silence of 

 tenure. 



For the second branch, which is incertainty of tenure ; 

 first, where an ignoramus is found by office, this, by the 

 common law, is a tenure in capite, which is most for the 

 king s benefit ; and the presumption of law is so strong, 

 that it amounts to a direct finding or affirmative, and the 5 Mar. 

 party shall have a negative or traverse, which is somewhat ity er&amp;gt; 14&amp;gt; 

 strange to a thing indefinite. Ehz &quot; Dyer 300 



So if in ancient time one held of the king, as of a manor 

 by knight s service, and the land return to the king by 

 attainder, and then the king granteth it tenend per Jideli- 

 tatem tantum, and it returneth the second time to the king, Austin s office. 

 and the king granteth it per servitia antehac consueta ; now 

 because of the incertainty neither service shall take place, 

 and the tenure shall be in capite, as was the opinion of you, 

 my lord chief justice, where you were commissioner to find 

 an office after Austin s death. 



So if the king grant land tenend de manerio de East 

 Greenwich vet de honore de Hampton, this is void for the 

 non-certainty, and shall be held of the king in capite. 



VOL. xin. v 



