Objected for

In order to carry the agreement into execution, the act of parliament of the 45 of William and Mary was made, which is ftated verbatim in the special verdict; the legislature do not make ufe of words of conveyance, but they enact that Kirby Overblowes fhall be vested in the crown, that Worplesdon fhall be vefted in Eton college, and that Kirby Overblowes ihall be vested in the Duke for ever.

At the time of making this act, the Duke was only tenant for life of Kirby Overblowes, under the fettlement of 1687, which was a fecret at the time of making the act, in which there is a faving claufe, which faves to all perfons (other than the crown, the Duke and Duchefs and their heirs, and Eton college) all their rights of prefentation to the faid churches, as fully as if the act had never been made; by means of which faving, and under a limitation in the fettlement of 1687, Charles late Earl of Egremont in the year 1760, prefented John Metcalf to the church of Kirby Overblowes (then vacant), who was admitted, inftituted and inducted; but from the time of making the act until the year 1760, the act has in all respects been carried into execution; and until the year 1771, Eton college have not, fince the making the act, been hindered or difturbed by the crown in prefenting to Worplefdon, but that church becoming void on the 13th of February 1771, the crown, by their ancient title to the advowfon thereof, prefented the defendant Fountain, and thereupon the provost and college of Eton have brought the prefent writ of quare impedit.

The question is, whether the advow fon of the church of Worplefdon is to be reftored to the crown, which depends upon the confiruction of this act of parliament, which faves Lord Egremont's right of prefentation to Kirby Overblowes, and as to that matter, it is the fame to him as if the act had never been made.

But it is objected on the part of the defendant, the prefentee the defendant. of the crown, that the crown has been deceived by Charles Duke of Somerfet, who had only an eftate for life in the rectory of Kirby Overblowes, which if the crown, or the legislature, had known at the time of making the act of parliament, that act would not have paffed; that private acts of parliament are to be conftrued according to the rules and principles of the common law, and therefore this act is to be confidered as a legal conveyance by way of exchange, and that the crown having been de ceived in the exchange, may, after near feventy years poffeffion under the act of parliament, diveft the college of Eton of the church of Worplejdon now in queftion.

The

The agreement or bargain was in truth between the college Anfwer. and the Duke only, the college made no bargain or agreement with the crown, but agreed with the Duke, that if he would procure them an equivalent (the advowfon of Worplefdon) they would convey the rectory of Petworth to him; the Duke did prevail upon the crown to give Worplefdon to Eton College, and they in return gave Petworth to the Duke; the confideration between the crown and the Duke was nothing to the college of Eton; it was certainly intended that the crown fhould receive of the Duke an equivalent confideration for the living of Worplefdon, and it must be admitted that the crown hath no title to Kirby Overblowes, and in that respect have been deceived by the Duke, who was only tenant thereof for life, fo the crown hath received no equivalent confideration from the Duke; but the college had no right to inquire into the Duke's title of (Kirby Overblowes then fuppofed to be) the equivalent for the crown's giving Worplefdon to the college; if the crown hath any remedy, it must be against the heirs of the Duke of Somerfet who did wrong to the crown, and not againft the college who brought a good title (to Petworth) to market, and did no wrong to, or deceived the crown.

It is faid on the other fide that this agreement and act of parliament carrying it into execution, are to be conftrued and confidered by the court as a legal conveyance between all the three parties, and as if it had been executed by a deed of exchange; and therefore it may be proper to confider the nature of a conveyance or grant by exchange, and what are it's operations and effects, and to fhew from thence that this act of parliament cannot operate as an exchange at law, for that an exchange cannot be made between more than two parties.

If there be two men, and each of them is feifed of a An exchange, quantity of land in one county, and the one granteth his land to what it is. the other in exchange for the land which the other hath, and in like manner the other granteth his land to the firft grantor in exchange for the land which the first grantor hath. In this cafe cach may enter into the other's land fo put in exchange without any livery or feifin; and fuch exchange made by parol of tenements within the fame county without writing is good enough, Litt. fect. 62. And if the lands or tenements be in divers counties, viz. that which the one hath in one county, and that which the other hath in another county, there it behoveth to have a deed indented, made between them of this exchange, Litt. fect. 63.

And if an exchange be of lands of any eftate of inheritance The effect of or frechold, it hath a condition and warranty incident and annexed it.

to

Rep. 121. Yelv. 8. S. C. Shep. Touchstone, 290,

Buftard's cafe.

291. &c.

to it made by the word exchange, implied in every grant of exchange: a condition, to give a re-entry upon all the land given in exchange if he be put out of all, or part of the land taken in exchange; and a warranty, to enable him to vouch, and to recover over in value fo much of his own land again given in exchange as fhall be recovered from him of the land taken in exchange, if he be fued for it: So that upon every exchange, either party, if he be put out of, or lofe by action the land he taketh in exchange, hath double remedy against the other; and yet this remedy doth go only in privity, and fhall not go to an affignee. -As if A. exchange land with B. and B. be put out of all or part of the land upon a title paramount, by a recovery in a real action or otherwife; in this cafe, B. may enter upon his own Jand again which he gave in exchange; or elfe, if it be in an action brought, he may vouch A. upon the warranty in law, and thall recover as much in value against him of the land he gave, as he hath loft of the land he took in exchange.-But if B. alien his land taken in exchange, to C. and C. be put out of all or part of the land upon a title paramount, C. in this cafe, can neither enter upon the land given to A. in exchange upon the condition in law, nor vouch A. to warranty, and recover over in value upon the warranty in law; and yet A. in this cafe, shall have the like remedy against C. the affignee upon the condition and warranty both, as he had against B.; but if A. himself implead C. for the land he gave to B. in exchange, C. may make ufe of this warranty in law by way of rebutter against A.—And in all these cases where one of the parties is put out of all or part of the land, or out of part of the estate by entry, and the other party enter upon the other's land upon the condition in law, he may enter upon the whole land and avoid the whole exchange; but if he be impleaded for a part only, or for the whole, and a part only be recovered from him; in this cafe he fhall recover fo much in value of the other land only as he hath loft, and no more: As if an exchange be of three acres for three acres, and after, one of the parties is put out of one of the acres by the entry of a stranger; in this cafe he may enter upon the whole three acres he had given in exchange, and fo avoid the whole exchange if he will.- --And if A. and B. be jointtenants for life, and the fee fimple to the heirs of A. and A. exchange this land with C. in fee, and then die, and B. enter and avoid the exchange for his life (as he may), in this case C. may avoid the whole exchange and enter upon his own three acres again: So if he in reverfion diffeife his tenant for life, and then exchange the land, and, after, the tenant for life enter; in this cafe the other party may defeat the whole exchange. But in this cafe of an exchange of three acres for three acres, if one of the acres were gained by diffeifin, and the diffifee bring an action

and

and doth recover it against the diffeifor, in this cafe, if he vouch over the other party to the exchange he fhall recover fo much in value only of the three acres he gave in exchange, as the acre he hath loft, and no more.

as an ex

Perk. fect.

This conveyance by way of exchange (which was formerly very A deed or frequent) whether it be by word or deed indented, or which way conveyance foever it be made, it must be made by this word exchange, which cannot operate is a word fo appropriated to this thing as the word frank-marriage change withis to a gift in frank-marriage, neither of which can be made or de- out the word fcribed by any circumlocution, Shep. Touchft. 298, 290. For if I exchange. give to a man an acre of land by deed indented, and he by the fame deed gives unto me another acre for the fame acre, nothing paffeth without livery, if the word exchange be not in. Finch. 103, 252. the wo 104. In every exchange rightly made, this word excambium im- permutatio is a ports in law tacitly a condition, and also a warranty, the one to give a re-entry, and the other, voucher and recompence, and all in refpect of the reciprocal confideration, the one land being given in exchange for the other, but it is a special warranty, for upon the voucher, by force of it, he fhall recover no other land in value but only that which was by him given in exchange, foraf much as the mutual confideration is the cause of the warranty, therefore it extends only to the land reciprocally given, and not to other land, 4 Rep. 121. a. b.

But there is no mutuality or reciprocality between three parties, it can only be between two parties, if A. gives to B. and B. gives to C. and C. gives to A. by agreement, there is no mutuality or confideration within the idea of an exchange; the warranty runs only in privity between the parties in the exchange; Eton college granted nothing to the crown, therefore the college cannot be bound to warrant the rectory of Kirby Overblowes to the crown, which was given to the crown by the Duke of Somerfet, fo the college cannot be evicted of the advowfon of Worplesdon, which has been vefted in them by act of parliament for near seventy years, and not by way of conveyance in exchange.

The word exchange, which is the only operative word to make that kind of legal conveyance, is not once mentioned in the act of parliament, it was the only inftance of a conveyance of lands at common law, by which a fee or freehold could pass without livery, 9 Ed. 4. 21. Co. Lit. 50. Perk. fect. 253. Bro. Exchange, pl. 12. So that without the word exchange the act of parliament cannot operate as an exchange.

Another reason why the act cannot operate as an exchange is this, viz. the act, immediately upon the making thereof, vefted the

re

word of the

fame effect.

refpective livings or advowfons in the respective parties, but in the cafe of a deed of exchange the parties thereto have no freehold in them before entry into the lands; it must be executed by entry or claim in the life of the parties, or it can never take effect. Co. Lit. 50. 3 Mod. 135. Perk. fect. 284, 285. Fitz. Abr. Exchange, pl. 10.-If this had been an exchange of land and the Duke had died, could his heir have entered? In the cafe of exchange of a reverfion, it could not take effect at law before attornment; fo in the cafe of an exchange of one living for another, it is void unless the parties are inducted before death.

In all exchanges the eftates must be equal, but the Duke of Somerfet had only an eftate for life in Kirby Overblowes, the crown and the college had a fee in their respective livings, fo this act of parliament cannot operate as an exchange, but may be good as a conveyance, or by way of vefting the feveral advowfons in the parties refpectively.

This agreement carried into execution by act of parliament cannot be conftrued as an exchange. ft, Because it is not between two parties. 2dly, The word exchange is not once mentioned in the act. 3dly, And entry or claim is not necessary, but the act vefts the feveral advowfons inftantly. And 4thly, By the act it is not neceffary that the feveral eftates should be equal.

If the court fhould give judgment for the defendant, confider what would be the confequence; the act of parliament would be made void as if repealed, the new erected parifhes made within the old parish of Petworth must be extinct and diffolved, and become chapelries as before; the new houses for the parfons thereof demolifhed, the poor thereof not to be fupported, the rent to the rector of Petworth given him in confideration of the Little Manor added to the Honour of Petworth muft ceafe, although the act of parliament fays thefe things fhall continue for ever: And becaufe Lord Egremont has title to Kirby Overblowes which is faved to him, the act must be now confidered as void ab initio, the rectors may be called upon to refund every farthing they have received under the act of parliament, and what may be the bad confequence if judgment be given for the defendant, no man can tell; but it is humbly infifted on the part of the college that this is not an exchange, and if it is not, the crown has no title or ground to stand upon.

But fuppofing this could poffibly be confidered as an exchange, the crown hath not been evicted of the church of Kirby Overblowes, for the prefentation to that church by the late Earl of

Egre