Egremont in 1760, can only be confidered as an ufurpation upon the crown, and to avoid an exchange there must be an eviction ; and if the exchange was perfect and good at first, Lord Egremont cannot defeat it; if it was voidable, it is not vet avoided, but he is put to his affize, as he claims Kirby Overblowes under a title paramount to the title of the crown, and his ufurpation upon the crown doth not evict the crown of that rectory, 9 Ed. 4. 21. Bro. Exchange, pl. 12, 13. Perk. fect. 299. Befides, the eftate of the crown in Kirby Overblowes cannot be defeated but by office found, or matter of record; for if land be given to the King by deed inrolled upon condition, if the condition be broken, the donor cannot enter without office found, for the eftate which commenced by matter of record ought to be defeated by matter of record, 2 Roll. Abr. 215. pl. 2. if this is an exchange it is a matter of condition, for if the one party hath not a title the condition is broken, the crown cannot enter but by matter of record; therefore fuppofing the crown to be divefted of Kirby Overblowes, yet the crown cannot claim Worplesdon without office found. Stamf prerog. 55. and even after office found the crown is not in poffeffion before feizure. Stamf prerog. 54. 4 Rep. 58, 9 Rep. 96, There must be an office and a feizure before the crown can take; and in fome other cafes there inuft be a feire facias; for where a common perfon is put to his aclion, the crown is put to a scire facias.

The counsel for the plaintiff's concluded, that the principles.... upon which an exchange are grounded are not at all applicable to this cafe; the Duke of Somerfel gave nothing to Eton College, the King gave nothing to the Duke of Somerfet, Eton College gave nothing to the King, fo there is no intercourfe of exchange between Eton college and the crown; but the title of the plaintiffs to the church in queftion is vefted in them by the act of parliament which cannot be avoided, or their title fo vefted in them thereby be effected by a wrongful act of the Duke of Somerset, the plaintiffs not being privy thereto. 2dly, If the crown fuffers, and is defeated of their title to Kirby Overllowes, the crown is in the common cafe of other perfons, and muft feek recompence from the party doing the wrong. 3dly. This aft of parliament muft continue for ever, unlefs repealed by another act; it can only be invalid as to the right of frangers, but the parties themfelves muft fubmit to the lofs, if any has happened thereby to any of them. Or 4thly, If wrong has been done to the crown, the crown must acquiefce in the lofs of Kirby-Overblowes, or feek a fatisfaction from the perfons who did the wrong, the Duke's heirs.

1. The crown being patron of the church of Worplefdon (now in Council for question) the Duke of Somerfet, patron of Kirby Overblowes, and the defendant.

the

the provoft and college of Eton patrons of the church of Petworth and two chapelries belonging to it, agreed to make an exchange, viz. the crown, upon the request of the Duke, agreed to give Worplefdon to the college, in exchange for which, the college agreed to give Petworth and the two chapelries to the Duke; and as an equivalent to the crown for Worplefdon, the Duke agreed to give Kirby Overblowes to the crown; this was the nature of the contract and ftipulation when the parties applied to parlia ment to have it carried into execution, and to make and erect the parish of Petworth and the two chapelries into three feparate and diftin&t parishes, which was enacted accordingly, and has been carried into execution, and acquiefced in until the late Lord Egremont, in the year 1760, prefented to Kirby Overblowes; and thereby evicted the crown.

2. Private acts of parliament made to carry the agreements of parties into execution, are to be conftrued by the rules and principles of the common law; the nature of this agreement is clearly a legal exchange, carried into execution by the act.

3. But the Duke of Somerfet being only tenant for life of Kirby-Overblowes; and not having an equal eftate therein to the eftate which the crown and the college had in Kirby-Overblowes and Petworth, the crown was liable to be evicted of Kirby Overblowes.

4. The late Lord Egremont has evicted the crown by prefenting to the church of Kirby-Overblowes, by an elder title which is faved by the act, and therefore the crown has the fame right and title to the church of Worplefdon (now in question) as if the exchange and act of parliament had never been made.

It is faid by the counfel for the plaintiffs that this is not a legal exchange, for that fuch exchange cannot be made between three parties, only between two; but why a mutual and reci procal agreement to make exchange may not be between three, four, or more parties, (it must be fubmitted) no good reason has been given on the other fide; although it must be admitted that no cafe of conveyence by deed of exchange is to be found in the books between more than two parties thereto. Suppose the Duke of Somerset had been seised in fee of Kirby Overblowes, the exchange would have been mutual, equal, and reciprocal between all the three parties, and the exchange could not have been avoided; but the Duke having only an effate for life, the crown has been deceived, and therefore, upon the law and principles of an exchange, has a right to prefent to the church in queftion under the old title.

The

The legislature could not intend to do injuftice, but if the crown has no title to Worplefdon which they gave to Eton college, in exchange for Kirby-Overblowes, injuftice will be done to the crown, who have been evicted thereof, and fo the act is void, because both the crown and parliament have been deceived.

The court being clearly of opinion that the plaintiffs must have judgment, flopped the counfel in replying upon the fecond argument of this cafe.

Curia-The court has no doubt, and very little to fay upon this matter. The Duke of Somerfet having a feat at Petworth was defirous of having the advowfon of that church in his family, which was in poffeffion of Eton College; the Duke, not having any living to tempt the college to give him Petworth in exchange, prevailed upon the crown to give the living in queftion to the college, and the Duke gave to the crown the church of Kirby Overblowes (fuppofed then to be an equivalent for Worplef don. This being agreed, and the Duke wanting to make three advowfons out of one, an act of parliament is made to carry this into execution, which does not make ufe of words of conveyance, but vefts the feveral advowfons in the refpective parties for ever, viz. Worplesdon in the college, Petworth in the Duke, and Kirby-Overblowes in the crown; at the time of making the act the Duke was only tenant for life of Kirby-Overblowes, which was then a fecret, (and fo continued till the year 1760,) and here is a faving claufe in the act 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 feveral churches, as fully as if the act had never been made; by which faving claufe 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 who was not difturbed by this agreement, or by the crown, Lord Egremont having a clear title under the fettlement, which was faved by the act.

In 1771 the church of Worp.efdon (in queftion) became vacant, and the crown under their ancient title prefented the defendant Fountain thereto, fuppofing the whole agreement void, whereupon the plaintiffs have brought this quare impedit; and the queftion is, whether the presentation of Lord Egremont to KirbyOverblowes fets the whole agreement afide, and the title to prefent to the church in queftion be reftored to the crown, which depends upon the conftruction of the act of parliament, which, in refpect to Lord Egremont, is the fame as if it had never been made.

Private

Private acts

must be conftrued accord

ing to the

the common

Taw.

ftone, title Exchange.

Private acts of parliament must be conftrued according to the of parliament principles of the common law, and therefore it is faid, that, from the nature of this agreement or contract, it must be construed to be an exchange at common law, which is a mode of conveyprinciples of ance that has particular properties of it's own, and conveys a feefimple without livery; and, before the ftatutes of frauds, might have been made by parol, without deed or writing; the word excambium, or exchange, is faid, by the beft writers upon this fubject, to be abfolutely neceffary to this mode of conveyance; the effence of an exchange is when one estate in land is given in confideration of another, hence if one part fails the other will fail alfo; in fome cafes it may be faid to be the best mode of conveyance, as in dealing with a defeafable title. The effect of an exchange arifes from the remedies; ft. An implied condition of re-entry. 2d. A. Special warranty, thefe are incidental to an exchange; a condition of re-entry is intire and indivifible, he cannot See Touch- enter into a part of what he gave in exchange, for he cannot judge how much he has loft, it is given against a ftranger; but if the ftranger be impleaded and vouches, no more is to be recovered than the value of what was loft; befides the warranty arifing from an exchange is only lineal warranty, arifing from operation of law, for the law will not raise a collateral warranty because of hard confequences attending it; an alienee can neither enter nor vouch, but he may make ufe of the warranty in law by way of rebutter; if tenant in tail by exchange conveys a base fee, each iffue may determine the exchange during his time, therefore it feens to be the very effence of an exchange that the na ture of the eftates exchanged be equal, that the land given by A. to B. may be a recompence for the land given by B. to A.There is no cafe to be found of an exchange in the legal fenfe and meaning of that conveyance between more than two parties; for if A. gives land to B. and B. gives land to C. and C. gives lands to A. if C. be evicted of the land given to him by B. C. cannot enter upon A. because A. gave nothing in exchange to C.; fo A. is not bound to warrant the land to C. which was given to him by B.; this accounts for the defendant's counfel not being able, with all their industry, to find one cafe of an exchange between three perfons; befides the act of parliament cannot be conftrued to operate as a deed of exchange, the word exchange not being once mentioned therein; the act makes ufe of no words of conveyance, but vests the feveral advowfons in the refpective parties, under the agreement.

The act ean

Lot operate like a deed of

exchange, be

cause the word excharge is not in it.

Hence it is clear that this act of parliament cannot be cons ftrued by the rules and principles of a conveyance by way of exchange but although the act doth not operate as an exchange, yet it fupports and executes the agreement between the parties,

faving the Earl of Egremont's right. Let us fuppofe it was an agreement, touching land, between A. B. and C. by feoffment;

(the college) in confideration of land from C. (the crown) enfeoffs B. (the Duke) of other land with warranty; and B. in confideration of other land from A. enfeoffs C. of other land with warranty: C. is impleaded by a ftranger (the Earl of Egremont) for the land whereof B. enfcoffed him, whereupon C. vouches B. to warranty; B. cannot vouch over A. to warranty, becaufe A. did not enfeoff B. of that fame land whereof B. enfeoffed C. and for which land C. is impleaded; fo the crown would recover in value against the Duke, and the lofs would fall where it ought, upon him who brought a bad title.

The crown grants a good title to the college, the college grants a good title to the Duke, the Duke grants a bad title to the crown, the college have broken no contract with the crown or the Duke; but the Duke was the only wrong doer; the advowfons lying in grant, doth not differ from the cafe put of a feoffment of lands, the nature of the agreement in both is the fame, and the crown being a party doth not alter the cafe; nor is it material, at prefent, in what manner Lord Egremont afferted his title to the church of Kirby Overblowes.

By the whole court, refolved there cannot be an exchange at common law between more than two parties, the things given and taken in exchange run in parallel lines, and cannot país into three lines or a triangle.

Judgment for the plaintiffs, per totam curiam.

Nathan Goodright (on the demife of William Rolfe 2 Black. Rep. and Elizabeth his wife) verfus Frances Harwood. 937. In ejectment. C. B.

will of lands

to have con

THE plaintiff declares that William Rolfe and Elizabeth his Whether a wife on the 20th day of October, in the feventh year of fubfequent his prefent Majefty at Westminster, demifed to the plaintiff one which doth meffuage, ten chambers, and ten rooms, with the appurtenances not appear, in Lincoln's-Inn, and the liberty of the Rolls, and in the parifh but is of Saint Dunstan in the Weft, in the county of Middlefex, to hold by the jury, the fame to the plaintiff and his affigns from the 29th day of tained a difSeptember then laft paft to the full end and term of ten years; ferent difpoby virtue of which demife the plaintiff entered, and was pof- the former felfed thereof, until the defendant on the 23d day of October, in will but in the said seventh year, entered into the faid tenements in and upon what particu the poffeffion of the plaintiff, and ejected him from his farm, known, fhall Vol. III.

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his be a revoca