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defendant's counsel has supposed that. mines are a distinct right from the right to the soil; but I do not think so, where they are under the soil of the lord of the manor. In cases of copyholds, a lord may have a right under the soil of the copyholder ; but where the soil is in the lord, all is resolvable into the ownership of the soil, and a grant of the soil will pass every thing under it. The only word in the saving clause which affords any ground for argument, is the word rents ; but when we see how that word is used with the others in that part of the act, it cannot be taken to include mines. At the time of passing this act of parliament, the mines under the waste ground were in the lady of the manor, as part of the demesnes. She intended to give up several rights to the tenants, for which she has reserved a satisfaction. Then how do the tenants hold their allotments under the act ? They could not take as copyholders, unless the act of parliament had so directed; but they take their allotments as freehold estates of inheritance. It is extremely clear, that no new tenure can be created, unless by the authority of parliament, since the statute of quia emptores ; nor can any person reserve to himself a right of escheat. Then it was urged by the defendant's counsel, that the act of parliament could not affect the lease which was in existence when it passed. It certainly could not ; neither would it have been affected, if the lady had sold her estate in the manor, but the alienee would have become the landlord, and entitled to the beneficial interest reserved by the lease. So here the lease will remain valid, but the right to the rent of the mines will pass to the person in whose favour the allotment was made under the act. For we cannot narrow the words of this act; and that transfers all the right in the soil to the several tenants. There is no doubt but that the mines might have been reserved. If it had been so intended, it would have been by express words but there is no such reservation here. The word rents is explained by the other words used; but those rights which are reserved, are mere badges of royal. ty, incorporeal rights, and other fruits of tenure of the same sort.” The other Judges concurred.
42. A recital in a private act, as to the constriction of a deed recited in such act, is not binding on
the parties. Tit. 32. c. 20. Thus it has been stated, that in the Duke of Rich. 69.
mond's case, a private act was obtained for vesting the lands purchased with the 60,0001. in the eldest son, upon his securing the portions to the younger children. In this act it was recited, that the younger sons and daughters of the late Duke of Richmond were, by virtue of the said marriage articles, severally seised of and entitled to the lands then purchased with the said 60,000 l., as tenants in common to them and the heirs of their respective bodies, with cross remainders of such of their respective shares, in case of any of their deaths without issue, to the survivors
of them in common in tail. Collect. Jur. Lord Apsley, in his judgement on this case, said, vol, 2. 374.
it was 'mentioned in the recital of the act, that the
, that the duke .was bound by this recital. If it had been enacted, that cross remainders were limited between
the younger children, though founded upon a misrecital, yet it would have been conclusive against the duke, and cross remainders established. Though, generally, recitals in private acts, or in deeds, are not binding to the parties, por, as this recital was, had it at all affected the case. Therefore the question was fairly open for the duke to contend that there were no cross remainders established.
But this: recital, though not. conclusive, would have some weight ; for it showed that the persons who prepared and passed the act, looked upon the articles in that light; which the Court would pay a regard to, though it might not be of opinion that such recitals should constantly bind.
43. With respect. to the general saving clause Effect of the which is inserted in every private act, difficulties General Sav
ing. have arisen on the construction of it, where it is contradictory to the body of the act.
In the case of Alton Woods, it is laid down, that a 1 Rep. 47 a. saving in an act of parliament, which is repugnant to the body of the act, is void : as in Plowden, 865, where the supposed attainder of the Duke of Norfolk was by act of parliament, 1 Mary, declared to be void ab initio, saving the estates and leases made by King Edw. VI. The saving was held to be void ; for where the attainder was declared to be yoid, the saring was against the body of the act, and therefore void.
14. This doctrine appears to have been supported in modern times ; it bęing held, that the general saving clause in a private act will not control the provisions contained in the body of the act, but must be so expounded, as to be rendered consistent with the body of the act, or else be void.
45. A private act was obtained for the sale of Cecil,
Lord Stawell's estate, by which it was enacted, that 2 Vern. 711.
the estate should be vested in trustees, to be sold; and that the money arising from the sale should be, in the first place, applied to pay the mortgagees, and afterwards the creditors by statutes, judgements, and recognizances. At the close of the act, there was a general saving of the rights of all persons, except the heir at law, and others of Lord Stawell's family.
Several of the statutes and judgements were prior to some of the mortgages, and there being a decree for sale and execution of the trust created by the act, a question arose in the Court of Chancery, upon a special report, whether the mortgagees should be paid in the first place, or whether the creditors by statutes, judgements, and recognizances, should be let in according to their priority, or be postponed to the mortgagees.
For the creditors by statutes, judgements, and
recognizances, it was insisted, that their securities Tit. 15. c. 5. bound the land as well as the mortgages. They 5.
were, both in law and equity, to be considered as having a prior right to the subsequent mortgagees. And although, in the beginning of the act, it was provided, that the mortgagees should be paid in the first place, yet there was a general saving of the rights of all persons, except the heir at law, and those of Lord Stawell's family; and that saving set the matter at large again, and restored them to their priority.
Lord Cowper said, the act expressly provided, that the mortgages should be paid in the first place; and the general saving must not control the express provision of the act, but must be so expounded, as to consist with the express preference given to the mortgagees; and he must decree the execution of the trust accordingly ; but seemed to admit, that by virtue of the general saving in the act, they might make use of their incumbrances as they could at law.
46. In the case of Westby v. Kiernan, which has ante, $ 36. . been already stated, the right of the remainder-man, expectant on the determination of the estate tail, was saved, not being excepted in the general saving; and yet he was held to be barred, for otherwise the act would have been nugatory. - 47. Where the enacting part of an act of parliament for inclosing the wastes and commons of a manor, expressly exonerates certain lands from the payment of tithes, the rector will be barred from claiming tithes out of those lands, though he be comprehended in the saving clause of the act. 48. By an act of parliament made in 13 Geo. III. Riddle v.
White, for inclosing and dividing certain moors, commons, 4Gwill. 1378. or tracts of waste land within the parish and manor of Lanchester, it was enacted, that the commissioners should, after setting out 30 acres to the curate of Latley, and other portions of land for the purposes therein mentioned, set out the residue of the said land unto and amongst the Bishop of Durham, who was the lord of the said manor, and the several other persons having rights of common thereon, according to the value of their respective estates : And that all such lands as should be allotted to any persons in respect of their respective lands and tenements, should be held by them in the same
manner as their respective messuages, &c. in right · of which such allotments were holden respectively;
and subject to the same species of tithes only, in the