Record, against both the Averment in the Count, and the Confession in the Plea. 'Tis in general Words, una cum Advocationibus, &c. nor does it pass by the Letters Patent of Car. 1. because it did not pass to the Earl, by those of Queen Eliz. this Grant is ushered in after all the Recitals, and those suppose the Advowson to have passed by the first Igitur; wherefore it must be upon Consideration of what is before alledged. This is at least an illative Word, and cannot begin an independent Substantive Clause of it self: So is Ulterius, 2 Brow. 132. If this Granting Part should be taken to be Substantive, and to have no Reference to what is precedent, all those Recitals would be vain and insignificant; and the King might as well have begun with the Words of the Grant. The King's Grants are to be taken according to his Intentions; and those are to be expounded by the Recitals. Then were quoted many Cases, as 5 Rep. 93. Hob. 120, 203. Hutt. 7. 2 Roll's Abr. 189. 11 Rep. 93. and it was said, That here are many false Recitals. Sir Will. Theckston claims, that must be intended a lawful Claim, whereas he could not lawfully challenge any Right to this Advowson; That the King presented Wilson by lapse; the King was deceived in thinking that this passed to the Earl; the Agreement between Dr. Wickham and Sir W. Theckston, was only to deceive the King. Here's no Notice taken of the Advowson's being in Gross; the Quality and Nature of the Advowson is totally concealed from the King; the Words notwithstanding any Defect help only want of Form. [224] Here was a plain Artifice in the Matter. In Queen Elizabeth's Grant, it was Advowsons in General, &c. but when Car. 1. is to confirm that Grant, 'tis of that Church by Name. All the intermediate Recitals between that of the first Grant and the Words of this new Grant, are dependent on that first. The King's Intention, That Theckston should have it, is not absolutely, but secund' Tenorem & Intentionem of the former Patent; the King meant only to restore to him his old Right which he had by that Patent, notwithstanding the Presentations. 10 Rep. 110. All Facts recited in the King's Grant shall be intended to be of the Suggestion of the Patentee. If there be several Considerations, and one false, and the King deceived thereby, it shall vitiate the Grant. 3 Leon. 249. Voer's Case cited in Legate's Case; Fitz. Tit. Grant, 58. 3 Leon. 119. If the Granting Words had stood alone, the Case had been more doubtful: But here they are all coupled. In all the King's Grants there must be some Considerations for his Favour: And Abundance of Cases were quoted concerning the King's Grants, Misrecitals, false Recitals, and Deceit, &c. Then it was strenuously insisted upon, That the Recitals and the Granting Clause must be considered and judged of together; that the contrary Opinion, is to make the Granting Part to be without any Consideration; 'tis to have a Conclusion without Premisses, an igitur without a Cause; That eadem servitia can never be intended new ones; That secundum tenorem must refer to the Appendant Advowson, and therefore the Advowson in Gross here declared upon and pleaded to, can never pass by this Grant; and upon the whole it was prayed, That the Judgment might be affirmed.
Reply for the Plaintiff in Error. Judgment reversed.—It was replied, on Behalf of the Plaintiff in Error, That as to the Variance in the Title of Knight, no Answer had been given to the reasonable Distinction between the Case of Grants and that of Writs and Indictments; That here was no Proof or Appearance of a Diversity of Persons; That as to the Grant it self, secund' tenorem could mean only a Reference to the Interest or Estate granted by them; not to the Thing or the Nature of it; That such Words signified only, as fully and largely; they had no express Relation to the Quality of the Advowson, whether in Gross or Appendant; That by such Niceties, any or most Patents might be avoided; That Grants of Honours as well as of Interests, if questioned, must be under the same Rule; and the Considerations, upon which they are grounded, may be subject to Inquiry, if true or false, &c. That the Patent of it self, without Reference to the Pleading, was good; that the Judgment desired, was to condemn a Patent as void, because another Patent recited in it was so, which perhaps was not fully recited; and if it were, was not in Judgment before the Court; and the Substance of what was urged before, was in short repeated; and prayed, That the Judgment might be revers'd. And it was accordingly revers'd; and Mr. Pierse (Scroop being dead) presented Francis Pemberton his Clerk, who was admitted, instituted and inducted, &c.
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