The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.

Attorny General versus Sir Edward Turner, in Scaccario.

INformation. The Case was, Viz. The King by Letters Pa∣tents granted several Lands in Lincolnshire, by express words; and then this Clause is added, upon which the Question did arise, Nec non totum illud fundum & solum & terras suas contigue adjacen' to the Premisses, quae sunt aqua cooperta vel quae in posterum de aqua possunt recuperari; and afterwards a great quantity of Land was gained from the Sea; and whe∣ther the King or the Patentee was intituled to those Lands, was the Question.

Sawyer for the King argued, that he had a good Title, because the Grant was void, he having only a bare possibility in the thing granted at the time.

But Levins on the other side insisted, that the Grant of those Lands was good, because the King may Grant what he hath not in possession, but only a possibility to have it. But admitting that he could not make such a Grant; yet in this Case there is such a certainty as the thing it self is capable to have, and in which the King hath an Interest; and it is hard to say that he hath an Interest in a thing, and yet cannot by any means dispose of it.

If it should be objected, that nothing is to pass but what is contigue adjacen' to the Premisses granted, and therefore an Inch or some such small matter must pass and no more; certainly that was not the intention of the King, whose Grants are to be con∣strued favourably, and very bountifully for his Honour, and not to be taken by Inches.

If there are two Marshes adjoyning, which are the Kings, and he grants one of them by a particular name and descrip∣tion, and then he grants the other contigue adjacen' ex parte au∣strali, certainly the whole Marsh will pass; and 'tis very usual in pleading to say a Man is seised of a House or Close, and of another House, &c. contigue adjacen', that is to be intended of the whole House.

In this Case the King intended to pass something when he granted totum fundum, &c. but if such construction should be made as insisted on, then those words would be of no significa∣tion. 'Tis true, the word illud is a Relative, and restrains the general words, and implies that which may be shewn, as it were

with a Finger; and therefore in Doddington's Case, a Grant of omnia illa Mesuagia, scituate in Wells, and the Houses were not in Wells, but elsewhere; the Grant in that Case, was held void, because it was restrained to a certain Village, and the Pronoun illa hath reference to the Town; but in this Case there could be no such certainty, because the Land at the time of the Grant made, was under Water.

But if the Patent is not good by the very words of the Grant, the non obstante makes it good, which in this Case is so par∣ticular, that it seems to be designed on purpose to answer those Objections of any mistake or incertainty, in the value, quantity, or quality of the thing granted, which also supplies the defects for want of right instruction given the King, in all cases where he may lawfully make a Grant at the Common Law, 4 Co. 34. Bozuns Case.

And there is another very general Clause in the Patent, viz. Damus praemissa adeo plene, as they are or could be in the Kings hands, by his Prerogative or otherwise. Adeo plene are opera∣tive words, Whistlers Case 10 Co. And there is also this Clause omnes terras nostras infra fluxum & refluxum maris. 'Tis true, these words praemissis praed' spectan' do follow; from whence it may be objected, that they neither did or could belong to the Premisses; and admitting it to be so, yet the Law will reject those words, rather than avoid the Grant in that part.

In the Case of the Abbot of Strata Marcella, the King grant∣ed a Mannor Et bona & catalla felonum dicto Manerio spectan'; now though such things could not be appendant to a Mannor, yet it was there adjudged that they did pass.

Such things as these the King hath by his Prerogative, and some things the Subject may have by Custom or Prescription; as Wrecks, &c. and in this very Case 'tis said, that there is a Custom in Lincolnshire, that the Lords of Mannors shall have derelict Lands, and 'tis a reasonable Custom; for if the Sea wash away the Lands of the Subject, he can have no re∣compence, unless he should be entituled to what he gains from the Sea; and for this there are some Authorities, as Sir Hen∣ry Constable's Case, 5 Co. Land between High-Water and Low-Water Mark may belong to a Mannor:

But no Iudgment was given.

Notes

• Exposition of the Kings Grant.
• Devise of a possibility good by a common person. 2 Cro. 509. pl. 21. 1 Bulst. 194.
• Postea, Company of Ironmon∣gers and Naylor.
• 2 Co. 32.
• Moor pl. 571.
• Ante
• Sid. 149.
• 9 Co. 27. b.
• 2 Roll. 168.