4 Ε. 3. 19. 9 Ε. 3. 1.

bet de dono Johannis de Bonville, tenendum de me et hæredibus meis in puram et perpetuam eleemosinam: and adjudged, that it was a good tenure in frankalmoign: which case proveth nothing that the lord paramount may by his co firmation to the tenant peravail extinct the mesnalty (as it is abridged by Master Fitzherbert in the title of Confirmation, pl, 21.), for the immediate lord did there make the said charter, and not any lord paramount. (And therefore it is ever good to rely upon the book at large, for many times compendia sunt dispendia, and melius est petere fontes, quàm sectari rivulos). And of this opinion was Master Plowden upon good advisement and consideration.

And here is the seventh case, wherein the release and 12 E. 4. 11. 16 E. 3. confirmation doth agree; for if there be lord and tenant

Fines 4. 6 Eliz.
Dier 230.

(Ante, 47 a.) (Plo. 563 b.)

(546)*

LITTLETΟΝ.

by fealty and twenty shillings rent, the lord may release all his right in the seignory or in the tenancy, saving fealty and ten shillings rent: but he cannot save a new kind of service, for he may as well abridge his services upon a release as upon a confirmation. And as there is required privity when the lord abridgeth the services of his tenant by his confirmation: so must there be also, when the lord by his release abridgeth the services of his tenant. And therefore the lord paramount cannot release to the tenant peravail saving to him part of his services (L1); but the saving in that case is void (M 1).

*BUT if the lord will by his deed of confirmation, Sect. 539.305 b.] that the enant in this case shall yield to him a hawk

*306 a.

(L1) That a saving in an act of parliament, which is repugnant to the body of the act, is void, see Plowd. Com. 563; as where the supposed attainder of the Duke of Norfolk was hy act of Parliament, 1 Mary, declared to be void and null ab initio, saving the estates and leases made by king Edw. 6. that saving was void; for when the attainder was declared to be void, the said saving was against the body of the act, and therefore void, 1 Co. 47 a. That a saving will serve for any thing that is implied in a judgment, but not against an express judgment; see 3 Inst. 47.[Ed.]

(M1) But in the case of lord, mesne, and tenant, if the lord confirmed the estate of the mesne to hold by less services, it was good, for he was in possession of the mesnalty, and there was a privity between them. Bro. Confirmation, pl. 8. 6 Vin. Abr. 399. Confirmation (Ea.)-[Ed.]

or a rose yearly at such a feast, &c. this (34) confirmation is void, because he reserveth to him a new thing which was not parcel of his services before the confirmation: and so the lord may well by such confirmation abridge the services (35) by which the tenant holdeth of him, but he cannot reserve to him new services (N 1).

This upon that which hath been said before in the next preceding section is evident, and needeth no further explication.

306.a.

LITTLETON.

ALSO, if there be lord, (36) mesne, and tenant, and the tenant is an abbot, that holdeth of the mesne by [Sect. 540.306 2.] certain services yearly, the which hath no cause (37) to have acquittance against his mesne, for to bring a writ of mesne, (38) &c. in this case, if the mesne confirm the estate that the abbot hath in the land, to have and to hold the land unto him and his successors in frankalmoign, or free alms, &c. in this case this confirmation is good, and then the abbot holdeth of the mesne in frankalmoign. And the cause is, for that no new service is reserved, for all the services specially specified be extinct, and no rent is reserved (39) to the mesne, but (40) the abbot shall hold the land of him as it (41) was before the *confirmation; for he

(34) Confirmation-reservacion,

L. and M. and Roh.

(35) per queux le tenant tient de luy, not in L. and M. nor Roh.

(36) mesne-mesme, L. and M. but not in Roh.

(37) per cas, added L. and M. and Roh.

(38) &c. not in L. and M. nor

Roh.

(39) al mesne, not in L. and M. nor Roh.

(40) que. not in L. and M.

(41) il-a luz, L. and M. and Roh.

(547)*

(N 1) The lord may abridge the services of his tenant by his confirmation, but he cannot enlarge them or create new services; for when he has confirmed the estate by lesser services, he has granted to the tenant the services that are over and above what was specified in the confirmation: because confirming the estate to hold by lesser services, is, by implication, a grant or release of the rest; for he could not hold by lesser services, unless the rest were released, see Doe, d. Reay v. Huntington, 4 East. 271; but if he confirms to hold by greater or new services, this is void, because this does not amount to a new grant from the lord. Gilb. Ten. 80.-[Ed.]

*306 b.

306 b.

that holdeth in frankalmoign ought to do no bodily service; so that (42) by such confirmation it appeareth, the mesne shall not reserve unto him any new service, but that the lands shall be holden of him as it was before. And in this case the abbot shall have a writ of mesne, if he be distrained in his default, by force of the said confirmation, where per case he might not have (43) such a writ before.

Here our author having seen the former books putteth 4 E 3.19. 22 Ε.3. his case, that the mesne maketh the confirmation to hold 15 b. the Lord Wake's case. 10 E 3.5. 15 E. 3. Confirmat. 8.

4 Ε. 3.-19, 20.

in frankalmoign, and not the lord paramount.

"And in this ease the abbot shall have a writ of

F. N. B. 136. h. & q. mesne." Here it is to be noted, that upon a confirma

4 Ε. 4. 35. 31 Ε. 1.

Mesne 55. 11 E. 3. tion to hold in freealmoign there lieth a writ of mesne, alAvowrie 100. 22 E. 3. beit the cause of acquittal begin after the seignor. And 16 H. 3. Avow. 243. so upon such a confirmation the the tenant shall have, (9 Rep. 130.)

18 b. 30 E. 3. 18.

LITTLETON.

void estate, is void.

contra formam feoffamenti.

ALSO, if I be seised of a villain, as of a villain in

[Sect. 541.306 b.] gross, and another taketh him out of my possession, 9. Confirmation of a claiming him to be his villain (4) there where he hath Where a person takes no right to have him as his villain, and after I conaway a villain in gross firm to him the estate which he hath in my villain, firmatian to him of his this confirmation seemeth to be void, for that none estate in the villain, is

from his owner, a con

void

306 b.

may have possession of a man as of a villain in gross, but he which hath right to have him as his villain in gross. And so inasmuch as he, to whom the confir mation was made, was not seised of him as of his villain at the time of the confirmation made, such confirmation is void.

Here is to be observed a diversity between the custody 45 Ε. 3. 10. 30 Η. 6. of the body of a ward within age, and a right of inheri tit. Barre 59. Regis-tance in the body of a villain in gross; for a man may trum 102. 1 H. 6. cap. 5.

(42) que, not in L. and M. nor

Roh.

(43) un-tiel, L. and M. and Rohs

(44) la ou il n'avort ascun droit d'aver luy come son vitteine, not in L. and M. nor Roh.

be put out of possession of the custody of his ward, but not of his villain in gross, no more than a man can be of his prisoner which he hath taken in war.

(Post, 323 a.) Brooke, tit. Propertie

Also of things that are in grant, as rents, commons, and the like, it is at the election of the party whether he 28. (Sect. 589, 590, will be disseised of them or no, as shall be said after in 591.) his proper place. But of a villain in gross, he cannot at (545)* all be disseised. (n) Non valet confirmatio nisi ille (n) Bracton, lib. 2. qui confirmat sit in possessione rei vel juris unde fieri Discont. 16. 42 E. 3. debet conrfimatio, & eodem modo nisi ille cui confirma-18. 40 E. 3. 17. tio fit, sit iu possessione.

59 b. 24 E. 3. tit.

43 Ε. 3. 4. 9 Ε. 4.38. Dier. 10 Eliz. Growche's case.

And materially doth Littleton put his case of a villain Diversity herein in the in gross; for of a villain regardant to a manor, the lord case of a villain regar

may be put out of possession; for by putting him out of possession of the manor, which is the principal, he may likewise be put out of possession of the villain regardant, which is but accessory. And by the recovery of the manor the villain is recovered. But if another doth take away my villain in gross or regardant, he gaineth no possession of him. And this doth well appear by the writ of nativo habendo, for that writ is not brought against any person in certain (because no man *can gain the possession of him). But the writ is to this effect: Rex vic' salutem. Præcipimus tibi, quòd justè et sine dilatione habere facias A. B. nativum et fugitivum suum, &c. ubicunque inventus fuerit, &c. et prohibemus super forisfacturam nostram ne quis eum injuste detineat; so as detain him one may, but to possess himself of him, and to dispossess the lord, he cannot.

And if a man might have been dispossessed of a villain in gross, or of a villain regardant (unless he be dispossessed of the manor also, as hath been sai), the law would have given a remedy against the wrong-doer, as the law doth in the case of a ward.

dant to a manor;

(Ante, 308 a.) *307 a.

Now, seeing it doth appear by our books (0), and by (0) Bracton, fol. 243. Littleton himself by implication, speaking only of a (5 Rep. 11 b. Ante.

(549)*

18 E 3.44.

villain in gross) that if a man be disseised of the manor whereunto the villain is regardant, he is out of possession of his villain, and so an advowson appendant, and the like. Hereby Littleton putting his case of a villain in gross) and by divers authorities a point controverted

(*) 9 Ε. 4. 38. 3 H. 4. in our books (*) is resolved, viz. that by the grant of the 15. manor without saying cum pertinentiis, the villain re16 E. 3. Quar Imp. 146. 19 R. 2 Tresp. gardant, advowson appendant, and the like, do "pass; for if the disseisor shall gain them as incidents to the manor, whose estate is wrongful, à multo fortiori the feoffee, who cometh to his estate by lawful conveyance, shall

255. 19 H. 6. 33. 21 H. 6. 9. 33 H.6.

33. 5 Η. 7.36 38.

33.9. 22 H. 6 33.

10 H. 7.9. F. N. B. per Moyle. 30 E. 3. have them as incidents. But where the entry of the dis31. 39 Ε. 3.21. 43 seisee is lawful, he may seise the villain regardant, or E. 3. 12. (Plowd. 258 a. Ante, 122 b. Post, present to the advowson, &c. before he enter into the. 349 b. 363 b.)

manor: otherwise it is where his entry is not lawful;

(p) Practon, fol. 242, and so are the ancient authors (p) to be intended (o 1).

243. Britton, fol. 126. Fleta, acc.

LITTLETΟΝ.

BUTin this case, if these words were in the deed (45), [Sect.542.307 a.] &c. Sciatis me dedisse et concessisse (46) tali, &c taor where the deed of lem villanum ineum, this is good; but this shall enure confirmation enures by way of grant.

307 a. 2H. 6. F. N. B. 7.. b.

by force and way of grant, and not by way of confir

mation, &c.

Here it is to be observed, that a man hath an inheritance in a villain, whereof the wife of the lord shall be endowed, as hath been said; for in him a man may have

24 E. 3. Discount. 16. an estate in fee or fee-tail for life or years. And therefore Littleton is here to be understood, tl at in the grant there were these words (his heirs) or else nothing passed but for life, as of other things that lie in grant.

LITTLETON.

AND (47) sometimes these verbs dedi et concessi shall [Sect. 543.307 a.] enure by way of extinguishment of the thing given

(45) &c. not in L. and M. nor
Roh.
(46) tali, not in L. and M. nor
Roh.

(47) Et-item, L. and M. and

Roh.

(01) See ante, 129 b. vol. 1. p. 232. [Ed.]