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England and Wales High Court (King's Bench Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Walsingham’s Case [1573] EWHC KB J99 (11 January 1573)
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Cite as: 2 Plowden 547, [1573] EWHC KB J99, 75 ER 805

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JISCBAILII_CASE_PROPERTY

BAILII Citation Number: [1573] EWHC KB J99
75 ER 805
2 Plowden 547

KINGS' BENCH

11 January 1573
Hillary Term, 11 Eliz.

WALSINGHAM'S Case
____________________


    Be it remembered, that Gilbert Gerard, Esquire, Attorney-General of the lady the Queen now, who prosecutes for the same lady the Queen, being present here in the Court the 20th day of January in this same term in his proper person, for the same lady the Queen gave the Court here to understand and be informed, that whereas one messuage or tenement called the Curtelage of East-Peckham, otherwise called Great-Peckham, 120 acres of land, 16 acres of meadow, 30 acres of wood, with the appurtenances in East-Peckham aforesaid, late in the several occupations of Anthony Weldon, Esquire, Thomas Cocks, and others, and one meadow called Multon-Mead, in East-Peckham aforesaid, late parcel of the lands and possessions of Thomas Wyat, Knight, late of high treason attained, the 17th day of November, in the 1st year of the reign of the possession of the said lady the Queen now, and long before, and always afterwards in the hands and possession of the said lady the Queen now were, and of the right ought to be, by reason of the attainder aforesaid, in right of the Crown of England, as in many records, rolls, and remembrances of this Exchequer, more fully appears of record: nevertheless, one Thomas Walsingham, Esquire, and John Gillibrand, the laws of the said lady the Queen now, not fearing, but intending and contriving the disinheritance of the same lady the Queen, with force and arms, etc. in and upon the possession of the said lady the Queen of the premises entered, intruded, and made ingress, and the issues and profits thereof arising to their own proper uses, perceived and had, and yet do perceive and have; that trespass from the same 17th day of November hitherto and yet continuing, in contempt of the said lady the Queen now, and against her laws. Wherefore the aforesaid attorney of the lady the Queen for the same lady the Queen prays the advice of the Court in the premises, and that the aforesaid Thomas Walsingham and John Gillibrand may come here to answer to the said lady the Queen in the premises.

    Plea. And now, viz. came here the aforesaid Thomas Walsingham and John Gillibrand, viz. the said Thomas Walsingham by John Marwood, his attorney thereunto by the grace of the Court specially admitted, and the aforesaid John Gillibrand in his proper person. And the pray oyer of the information aforesaid, and it is read to them. Which being heard and understood, they complain that they, by colour of the premisses in the said information specified shall be grievously vexed and disquieted, and that by no means justy, because, by protesting that the information aforesaid is insufficient in law, to which they have no necessity, nor are, by the law of the land, bound to answer, for plea nevertheless as to the coming with force of arms, or whatsoever that is against the peace, or in contempt of the said lady the Queen, and also of the whole further trespass and contempt by them above supposed to be done, they the same Thomas Walsingham and John Gillibrand say that they are not guilty thereof, nor is either of them guilty therof, and of this they the same Thomas and John put, and each of them puts, himself upon the country, and the aforesaid attorney, etc. likewise, etc. And as to the entry, intrusion, and ingress into the aforesaid one tenement, and all and singular other the premises within the manor of Peckham, otherwise East-Peckham, in the information aforesaid specified, they the same Thomas and John say, that long before the aforesaid 17th day of November, in the said information specified, and before the aforesaid lady the Queen, or any of her progenitors, had anything of or in the aforesaid messuage and other the premisses, and long before the treason by the aforesaid Thomas Wyat, Knight, in the information aforesaid named, committed or perpetrated, one George Moulton, Esquire, was seized of and in the aforesaid messuage and other the premisses in Peckham aforesaid, otherwise East-Peckham, in the information aforesaid specified in his demesne as of fee. And the aforesaid George being so thereof seized, he enfeoffed thereof one Edmund Walsingham, Knight, to have and to hold the aforesaid messuage, and all and singular other the premisses in Peckham, otherwise East-Peckham aforesaid, in the information aforesaid specified, to him, his heirs and assigns for ever. By virtue of which said feoffment the aforesaid Edmund Walsingham, Knight, into the aforesaid messuage and other the premisses in Peckham, otherwise East-Peckham aforesaid, in the information aforesaid specified entered, and was thereof seized in his demesne as of fee. And the aforesaid Edmund being so thereof seized, he the 9th day of February, in the 4th year of the reign of Lord Edward, late King of England the Sixth, of such his estate died thereof seized, after the death of which said Edmund the tenement aforesaid, and all and singular of the premisses in Peckham, otherwise East-Peckham aforesaid, in the information aforesaid specified descended to the aforesaid Thomas Walsingham, Esquire, as son and heir of the aforesaid Edmund. By reason whereof he the same Thomas Walsingham, long before the aforesaid time when, etc. into the aforesaid tenement and other the premisses entered, and was thereof seized in his demesne as of fee. And the aforesaid Thomas Walsingham, in his own proper right, and the aforesaid John Gillibrand as servant of the aforesaid Thomas Walsingham, and by his command, the issues and profits of all and singular the premisses in the aforesaid information specified, perceived and had, and yet perceive and have, as it was and is lawful for them; without that, that they the aforesaid Thomas Walsingham and John Gillibrand in and upon the possession of the said lady the Queen of the tenements aforesaid, and other the premisses, in the information aforesaid specified, or of any parcel thereof, intruded, or either of them intruded, in manner and form as by the information aforesaid above is supposed; and without that, that the aforesaid tenement, and other the premisses in the information aforesaid specified, the said 17th day of November, in the same information specified, or ever before or after, were in the hands and possession of the said lady the Queen, in manner and form, as by the information aforesaid above is supposed.[1] With this that they the same Thomas Walsingham and John Gillibrand will aver and say, that George Wyat, the son of the said Thomas Wyat, of high treason attainted is alive, viz. at Oxford, in the county of Oxford. All and singular which they the same Thomas Walsingham and John Gillibrand are ready to verify as the Court, etc. Wherefore the pray judgment, and that they as to the premisses from this Court may be dismissed, and either of them be dismissed.

    Replication. And the aforesaid Attorney-General of the lady the Queen now, who prosecutes for the same lady the Queen in this behalf, by protesting not acknowledging any thing by the aforesaid Thomas Walsingham and John Gillibrand above alledged to be true, for plea for the same lady the Queen says, that the tenements aforesaid, with the appurtenances in the information aforesaid specified are, and at the aforesaid time of the entry and intrusion aforesaid made, and also from time whereof the memory of man is not to the contrary, were, parcel of the manor of Peckham, otherwise East-Peckam, in the aforesaid county of Kent. And that long before the aforesaid George Moulton had any thing in the tenements aforesaid, with the appurtenances in the information aforesaid specified, Lord Henry, late King of England the Eighth, the father of the said lady the Queen now, was seized of and in the aforesaid manor of Peckham, otherwise East-Peckham, with the appurtenances whereof, etc. in his demesne as of fee, in right of his Crown of England. And the same late King being so thereof seized, he by his letters-patent, sealed under his Great Seal of England, bearing date at Westminster, in the county of Middlesex, the 20th day of November, in the 31st year of his reign, in consideration of the good, true, and faithful service which one Thomas Wyat, Knight, to the same late King before then had done and performed, of his special grace, and of his certain knowledge, and meer motion had given and granted, and by the same letters-patent gave and granted, to the same Thomas Wyat the manor aforesaid, with the appurtenances, among other things, by the name of his manor of East-Peckham, with its rights, members, appurtenances, and other commodities whatsoever in his county of Kent; to have and to hold the manor aforesaid, with the appurtenances, among other things, to the aforesaid Thomas Wyat, and to his heirs males of his body lawfully begotten, to their proper use, to hold of the said late King, his heirs and successors, in chief, by the service of the twentieth part of a knight's fee, as by the same letters-patent more fully appears. By reason of which said letters-patent the same Thomas Wyat into the manor aforesaid, with the appurtenances whereof, etc. amongst other things entered, and was thereof seized in his demesne as of fee-tail, by the form of the gift aforesaid. And the same Thomas Wyat being so thereof seized, of such his estate thereof died seized, after whose death the manor aforesaid, with the appurtenances whereof, etc. amongst other things descended to the aforesaid Thomas Wyat, Knight, as son and heir male of the body of the aforesaid Thomas Wyat the father, lawfully begotten, whereby the same Thomas Wyat the son into the manor aforesaid, with the appurtenances whereof, etc. entered, and was thereof seized in his demesne as of fee-tail, by the form of the gift aforesaid, etc. the reversion thereof belonging to the aforesaid late King Henry the Eighth, his heirs and successors. And the said Thomas Wyat the son, of the manor aforesaid, with the appurtenances whereof, etc. being so seized, the reversion thereof in form aforesaid belonging to the said late King Henry the Eighth of such his estate thereof died seized, after whose death the reversion of the manor aforesaid, with the appurtenances whereof, etc. descended to Lord Edward the Sixth, late King of England, as son and heir of the said late King Henry the Eighth, whereby the same late King Edward the Sixth was of the reversion of the manor aforesaid, with the appurtenances whereof, etc. seized as of fee and right, in right of his Crown of England. And the same late King Edward the Sixth of the reversion aforesaid in form aforesaid being seized, and the aforesaid Thomas Wyat the son, of the manor aforesaid, with the appurtenances whereof, etc. in form aforesaid being seized, the same Thomas Wyat the son, gave the tenenements aforesaid, with the appurtenances in which, etc. to the aforesaid George Moulton, to have and to hold to the same George, and to his heirs for ever. By virtue of which gift the same George Moulton was of the tenements aforesaid, with the appurtenances, seized to him and to his heirs, according to the force and effect of the feoffment aforesaid, the reversion thereof, for default of heirs males of the body of the said Thomas Wyat, the son, to the aforesaid late King Edward the Sixth, his heirs and successors, in form aforesaid belonging. And the same George being so thereof seized, gave the said tenements, with the appurtenances, to the aforesaid Edmund Walsingham, Knight, to have to him and to his heirs for ever. By virtue of which gift the same Edmund was thereof seized of such estate as by the gift aforesaid to the aforesaid George made to the same George passed, the reversion thereof in form aforesaid belonging. And the same Edmund being so thereof seized, of such his estate died seized, having issue the aforesaid Thomas Walsingham, who was his heir; after the death of which said Edmund, the same Thomas Walsingham into the tenements aforesaid, with the appurtenances, entered, and was thereof seized of such estate as by the gift aforesaid to the aforesaid George made to the same George passed, the reversion thereof in form aforesaid belonging. And the same Thomas Walsingham being so thereof seized, the reversion thereof, for default of heirs males of the body of the aforesaid Thomas Wyat the son, to the said late King Edward the Sixth in form aforesaid belonging, the same late King Edward the Sixth of such his estate thereof died seized, after whose death the reversion in fee-simple of the tenements aforesaid, with the appurtenances, amongst other things descended to Lady Mary late Queen of England, as sister and heir of the aforesaid late King Edward the Sixth; whereby the same late Queen was seized of the reversion of the tenements aforesaid, with the appurtenances, as of fee and right, in right of her Crown of England. And the same late Queen being so thereof seized, and the aforesaid Thomas Walsingham of the tenements aforesaid, with the appurtenances in form aforesaid being seized, the son, to the said late Queen Mary in form aforesaid belonging, by a certain inquisition taken at Westminster, in the county of Middlesex, the 13th day of February, in the 1st year of the reign of the said lady, late Queen Mary, before William Peter, Knight, one of the chief secretaries of the said late Queen, and Thomas Bromley, Knight, Chief Justice of the said late Queen assigned to hold pleas before the said late Queen herself, and his companions, by virtue of the letters-patent of the said late Queen to them thereupon directed, to enquire by the oath of good and lawful men of the county of Middlesex, as well within liberties as without, by whom the truth of the matter might be better known, of whatsoever treasons, misprisions of treasons, insurrections, face allegiances, contempts, falsities, negligences, concealments, oppressions, riots, routs, murders, felonies, and other offences whatsoever, and also the accessaries of the same, in the same county perpetrated and committed, and the same treasons, and other the premisses, according to the law and custom of the realm of England, to hear and determine assigned, by the oath, etc. it was fond that the aforesaid Thomas Wyat the son, by the name of Thomas Wyat, of Allington, in the county of Kent, Knight, and other false traitors and rebels against the said late Queen, not having God before their eyes, nor considering their due allegiances, but seduced by the instigation of the devil, imagining, endeavouring, and compassing to deprive the said late Queen their Sovereign of the regal estate, title, government and power of her realm of England, and to change and alter the government of the same realm after their own will and pleasure, with force and arms, viz. with standards displayed, swords, spears, lances, bows, arrows, coats of mail, shields, iron helmets, engines or fire-arms, commonly called sawker and hang-guns, and with other arms as well defensive as offensive, in warlike manner armed and arrayed, the 7th day of February in the 1st year of the reign of the said late Queen, at the town of Brandford, in the county of Middlesex, to execute and perform their most wicked intention aforesaid, falsely, rebelliously, and traitorously, with a great multitude of rebels and public enemies of the said late Queen, and of her realm of England, to the number of 3000 men, arose, met, assembled, and joined themselves together, and a most cruel war against the said late lady the Queen, at Brandford aforesaid, then falsely, hostilely, rebelliously, and traitorously, prepared and levied, and being so armed and arrayed, going, riding, and marching, from Brandford aforesaid, towards the City of London (the said late Queen then being and residing at her palace in the City of Westminster, in the aforesaid county of Middlesex), a most fierce and terrible war, at Charing Cross, with the parish of St. Martin's in the fields, in the City of Westminster, in the said county of Middlesex, again the said late Queen then and there falsely, hostilely, rebelliously, and most traitorously made, struck, and perpetrated, against their due allegiances, to the great danger of the Royal person of the said late Queen, and of the subversion of her realm of England, and against the peace of the said late Queen, her Crown and dignity, and also against the form of divers statutes in such case made and provided, etc. And afterwards, viz. on Thursday, the 15th day of March, in the 1st year abovesaid, before William Maruquiss of Winchester, Treasurer of England, Henry Earl of Arundel, Lord Steward of the household of the said late Queen, and his companions, justices of the said late Queen assigned by the letters-patent of the same late Queen to them directed, reciting that whereas Thomas Wyat, late of Allington, in the county of Kent, Knight, otherwise called Thomas Wyat, late of London, Knight, together with others, before William Peter, Knight, Thomas Bromley, Knight, Richard Morgan, Knight, John Baker, Knight, William Portman, Knight, Edward Saunders, one of the justices of the said late Queen of the Bench, justices of the said late Queen lately assigned to enquire in the county of Middlesex, amongst other things, of whatsoever treasons, misprisions of treasons, rebellions, unlawful assemblies, unlawful conventicles, speaking of words, confederacies, false allegiances, contempts, falsities, negligences, concealments, oppressions, riots, routs, murders, felonies, trespasses, or other offences whatsoever, and the accessaries of the same, within the county of Middlesex aforesaid, by whomsoever and howsoever had, done, perpetrated, or committed, and by whom or to whom, when, how, and in what manner, and of other articles and circumstances the premisses and every of them, or any of them, or otherwise howsoever concerning, more fully the truth, of divers high treasons by him committed and perpetrated had stood indicated for the same, and the same late Queen, the same marquiss, earl, and their companions, commissioners before named, and four of them in that behalf assigned, and by the same letters-patent among other things to the same marquiss and earl, and the other commissioners aforesaid, or four of them, full and sufficient power and authority, and special command gave and granted, the indictment aforesaid concerning the same Thomas Wyat, whereby the same Thomas Wyat alone or together with others, of any treasons within the county of Middlesex aforesaid stood indicated, with all things touching it, from the aforesaid William Peter, Knight, Thomas Bromley, Knight, and the other commissioners before named, or from any of them before whom it was taken, and in whose custody it then remained, to receive, and it to inspect, and at certain days and places which they should appoint for that purpose, to meet at Westminster or elsewhere, in the said county of Middlesex, in a convenient place, and the said Thomas to call before them, and him thereupon to hear and examine, and to compel hi to answer, and at a due end to try and adjudge, and also so many and such good and lawful men of the county of Middlesex aforesaid, by whom the truth of the matter in that behalf might be better known, at the days and places aforesaid, for the cause and causes aforesaid, before them to compel to appear, and the truth thereof being found, to give judgment thereupon by them in that behalf according to the laws and statutes and customs of the realm of England, and against the aforesaid Thomas Wyat to proceed, give sentence, and adjudge, and execution thereof to command to be done, and all and singular other things which in that behalf should appertain and be requisite to do, exercise, and execute.

    [2]At Westminster aforesaid came the aforesaid Thomas Wyat the son, by John Gage, Knight, of the most noble Order of the Garter, Constable of the said late Queen of the Tower of London, by virtue of the writ of the aforesaid late Queen, and of the precept of the justices aforesaid to the Bar there brought; and the same Thomas Wyat the son, of the high treasons aforesaid on him above charged, being then and there asked how he would thereof acquit himself, said that he could not deny, nor but that he of the treasons aforesaid was guilty, and then and there expressly confessed the treasons aforesaid on him above charged, and put himself thereof into the hands of the said late Queen. Whereupon then and there the serjeant of the said late Queen, and the attorney of the said late Queen, for that the aforesaid Thomas Wyat the treasons aforesaid on him in form aforesaid charged expressly confessed, according to the due form of law prayed against the said Thomas Wyat the son, judgment and execution thereupon for the said late Queen to be had. Whereupon judgment thereof then and there by the aforesaid marquess and earl, and their companions, was given, vis. [3]that the aforesaid Thomas Wyat should be carried by the aforesaid constable to the aforesaid Tower of London, and from thence should be drawn through the middle of the City of London, unto the gallows of Tyburn, and there be hanged up, and cut down alive to the ground, and that his entrails should be taken out of his belly, and be burnt, he living, and that his head should be cut off, and his body be divided into four parts, and that the head and those quarters should be put where the said late Queen would appoint. And afterwards the aforesaid Thomas Wyat the son, was put to death, according to the judgment aforesaid, at East Smithfield, in the county of Middlesex. [4]And afterwards, viz. at a Parliament of the Lord Philip and Lady Mary, late King and Queen of England, holden at Westminster, in the county of Middlesex, the 12th day of November, the 1st and 2d years of the reign of the aforesaid late King and Queen, amongst other things it was enacted in manner and form following, viz. that whereas Henry Duke of Suffolk, late of Brodegate, in the county of Leicester, John Grey, of Brodegate, Knight, and Thomas Wyat, late of Allington, in the county of Kent, Knight, together with others in the same statute named, had committed, perpetrated, and done many detestable and abominable treasons, to the most fearful danger of the destruction of the Royal person of the said late Queen, and to the very great loss, disherison, and desolation of the realm of the lady the late Queen of England, if God of His infinite minds and intentions of the same, for which treasons it plainly and manifestly appeared that the aforesaid duke, and the other persons aforesaid lawfully and justly, according to the due form of law, had been convicted and attained, as by the records thereof more fully appeared, that the said convictions and attainders of the offenders aforesaid and of ever of them should be approved and confirmed by the authority of the Parliament aforesaid; and that the aforesaid duke, John Grey, Thomas Grey, and Thomas Wyat, and the others of the treasons aforesaid so attained, should lose and forfeit to the said late Queen, her heirs and successors, all their honours, manors, messuages, lands, tenements, rents, reversions, remainders, possessions, offices, rights, conditions, hereditaments, goods and chattels, of whatsoever names, natures, or qualities they were, which they or any of them had the said day of their several treasons by them committed, or at any time afterwards; and that all those their honours, manors, messuages, lands, tenements, rents, reversions, remainders, possessions, offices, rights, conditions, hereditaments, goods, and chattles, by authority of the same Parliament should be vested and adjudged in the actual and real possession of the said late Queen, without any other office or inquisition thereof from thenceforth to be taken or found: saving to all and all manner of persons, and bodies politic and corporate, and to their heirs, assigns, and successors, and to every of them, others than the aforesaid duke and the other persons attainted, and their heirs, and the heirs of every of them, and of every person and persons claiming to the use or uses of them or of any of them, or to the use of any heir of the same, all such right, title, use, possession, interest, reversion, remainder, entry, condition, fee, office, rent, commodities, commons, titles, entries for conditions then broken or from thenceforth to be broken, given or grown, or from thenceforth to be given or to grow by reason of any condition made before the treasons aforesaid committed, and all other commodities and hereditaments whatsoever, which they or any of them might or ought to have had, if the aforesaid Act of Parliament had never been had or made, any thing in the same Act specified to the contrary notwithstanding. And further the same attorney of the lady the Queen says, that the aforesaid Thomas Wyat in the indictment aforesaid named, and the aforesaid Thomas Wyat the son in the information aforesaid specified are on and the same person, and not others not divers. By reason of which said attainder and Act the said late King and Queen Philip and Mary were seized of the tenements aforesaid with the appurtenances in their demesne as of fee, in right of the said late Queen. And they being so thereof seized, the same late Queen of such her estate thereof died seized, after whose death the tenements aforesaid with the appurtenances among other things descended to the said lady the Queen now, as sister and heir of the said late Queen Mary; whereby the same lady the Queen now was and yet is seized of the tenements aforesaid with the appurtenances in her demesne as of fee, until the aforesaid Thomas Walsingham and John Gillibrand the aforesaid 17th day of November in the 1st year abovesaid, with force and arms, etc. in and upon the possession of the said lady the Queen now of and in the tenements aforesaid with the appurtenances entered, intruded, and mad ingress, in manner and form as by the information aforesaid for the said lady the Queen is supposed. And this the same attorney for the same lady the Queen is ready to verify as the Court, etc. Wherefore he prays judgment, and that the aforesaid Thomas Walsignham and John Gillibrand of the intrusion aforesaid may be convicted, etc.

    Demurrer to the replication. And the aforesaid Thomas Walsingham and John Gillibrand for replication say, and each of them for himself saith, that the replication aforesaid, and the matter in the same contained are insufficient in law to charge them the same Thomas and John or either of them, of or with the intrusion and contempt aforesaid; wherefore for the insufficiency of the same replication, they the same Thomas Walsingham and John Gillibrand pray judgment as before, etc.

    Joinder, And the Queen's attorney rejoined to the demurrer, etc.

    The case. Tenant in tail of the gift of the Crown makes a feoffment in fee, the reversion being still in the Crown, and afterwards in attained of high treason, the right of the intail is forfeited to the Crown; for no mor passes by the feoffment than for the life of the tenant in tail, so that there remains in him a right of the intail to be forfeited; and thought the tenant in tail himself against his own feoffment can claim no right at the time of the treason, but as to any benefit which he himself can claim from it, the intail is put in abeyance, during his life, by such feoffment, yet since it would have continued still in him for the benefit of the heir, if he had not been attained, it shall likewise continue in him for the benefit of the King. S.P. adjudged Cro. C. 427, Stone v. Newman. 1 H. H. P. C. 242, 243. 2 Hawk. P. C. 453, § 24. 2 Bac. Abr. 580. Sed vide Hob. 341.

    The case was thus. King Henry 8. in the 31st year of his reign gave the manor of East-Peckham, whereof the premisses are parcel, to Sir Thomas Wyat, Knight, and to his heirs males of his body begotten, who died seized, leaving issue Sir Thomas Wyat, Knight, who entered, and in the time of King Edward 6. made a feoffment of the said manor to one George Moulton and to his heirs, who made a feoffment thereof to Sir Edmund Walsingham, Knight, and to his heirs, who died thereof seized in the 4th year of the reign of King Edward 6, leaving issue Thomas Walsingham the defendant, who entered into the premises. And afterwards in the 1st year of the reign of Queen Mary the said Sir Thomas Wyat the son was attainted by his own confession of high treason done in the said 1st year of her reign, and was put to death. And afterwards by an Act of Parliament mad in the 1st and 2d years of the reign of King Philip and Queen Mary the said attainder was confirmed, and further it was enacted that the said Sir Thomas Wyat the son should forfeit to the said Queen, and to her heirs and successors, all his manors, lands, tenements, reversion, remainders, possessions, rights, conditions, and hereditaments, of whatsoever name, nature, or quality they were, which he had the day of the treasons committed, or at any time afterwards; and that all those manors, etc by the authority of the said Parliament should be vested and adjudged in the actual and real possession of the said late Queen without any office or inquisition thereof afterwards to be found: saving to all persons and their heirs, others than the said Sir Thomas Wyat and his heirs, all such right, title, use, possession, and interest, which they had or should have had if the Act had not been made. And the Queen's attorney sued forth a bill of intrusion against the said Thomas Wyat who was attainted, had issue alive one George Wyat his son. And on the part of the Queen it was shewn that the reversion in fee-simple continued always in the Crown. And upon this matter the defendants and the Queen's attorney demurred in law.

    And the matter was argued at large in Michaelmas term in the 13th and 14th years of the reign of Queen Elizabeth by Bullock and Serjeant Manwood on the part of Walsingham, and by an apprentice of the Middle-Temple, and Barham, the Queen's Serjeant on the part of the Queen. And the principal point argued was, what estate, right, or interest of the land was in Sir Thomas Wyat the son at the time of the treason committed or afterwards. For the statute of 26 H. 8. cap. 13, ordains that those who are attained of treason shall forfeit to the King of all lands, tenements, or hereditaments which they have of any estate of inheritance in use or possession by any right, title, or means. And the statute of 33 H. cap. 20. ordains that the King shall have as great benefit and advantage by attainder of treason as well as of uses, rights, entries, and conditions, as of possessions, reversions, remainders, and all other thins, as if it had been made and declared by authority of Parliament. And this private Act which confirms that attainder of Sir Thomas Wyat ordains that he shall forfeit to the Queen all his manors, lands, tenements, reversions, remainders, possessions, rights, and hereditaments which he had the day of the treason committed or afterwards. In each of which Acts there is a saving of the rights and interests of strangers. So that if Sir Thomas Wyat at the time of the treason committed, or at any time afterwards had nothing in the land in possession or in reversion, nor any right or title to it, then he could not forfeit anything by the common law, nor by the words or intent of any of the statutes. But Thomas Walsingham the defendant who came to the land by descent , whose father came in Moulton, who came in by the feoffment of Sir Thomas Wyat, has his right and possession saved to him by the saving of each of the statutes, and therefore he ought to retain the land. So that it is to be considered what estate and right Sir Thomas Wyat had after the feoffment, and at the time of the treason committed, or at any time afterwards.

    And as to this, first it was confessed by the counsel who argued on both sides, that by the feoffment which Sir Thomas Wyat made to Moulton the reversion in fee-simple which the King had was not discontinued nor touched.[5] [6]For the King is a body politic of himself, of all others most high and worthy, to whom no freehold nor estate of inheritance can be given or conveyed by matter in deed, or otherwise, but by matter of record, and by the same reason no estate of freehold or inheritance can be taken or devested out of him by matter in deed, or otherwise, but by record only. And therefore no freehold or inheritance can be taken from him by disseizin, which is matter in deed, no more can it by feoffment, which is also matter in deed, for which reason the feoffment of Sir Thomas Wyat, who was tenant in tail, did not take away nor devest the reversion in fee-simple out of the King, because the feoffment was but matter in deed. [7]And by the common law a common recovery against the King's tenant in tail was not sufficient to take the reversion out of the King, although the [8] issue in tail was bound, and he shall not falsify by reason of a recovery in value, for he who has no right cannot take an estate out of the King without his will. [9]And hereupon the case in 25 Ed. 3. was cited, where, upon default of tenant for life, the King, who was in the reversion, prayed to be received by his attorney and his serjeants, and sent his writ to the justices for that purpose, and he could not be received; for if he should be received, the demandant should count against the King as tenant, which he cannot do, [10]for the subject is driven to his petition against the King, and shall not implead him nor count against him as tenant in any case. So that although the King was not there received, yet he was at no prejudice, for if the demandant's title is faint, he shall not gain the reversion against the King by such recovery, [11]but if the demandant's title is good, it seems that by his recovery against the tenant for life he shall devest the fee-simple out of the King who is in reversion or remainder, as well where the tenant for life does not pray in aid of the King, and procedendo is not granted, as where he does pray in aid of the King, and procedendo is granted in loquela and ad judicium. So that the reversion or remainder shall not be taken out of the King by matter in deed without good title, nor by matter of record without making him privy.

    But the apprentice said, that sometimes the reversion shall be devested out of the King by matter in deed and in law together, without making him privy. [12]As if tenant in tail of the gift of a common person makes a feoffment in fee, the feoffee gives the land in fee-simple to the King by deed enrolled, the King gives the land by his letters-patent to the first donee in tail, to have and to hold to him and to his heirs of his body begotten, and he has issue, and dies, the issue enters, now he is remitted to the first tail, and thereby the reversion in fee-simple is devested out of the King, and restored to the first donor, for here there is a former right, and the former right, and matter in deed, and matter in law, all concur together. [13]So, perhaps, he said, should it be if a man makes a lease for life, upon condition that if the tenant for life does such an act, he shall have the fee, and the lessor grants the reversion by deed enrolled to the King, there if the tenant for life afterwards performs the condition, he shall have the fee thereby, and shall devest the reversion out of the King, for the reversion was bound with the condition, and forasmuch as the condition is older than the title of the King, this elder title, and the matter in deed, and the operation of the law thereupon shall take the reversion out of the King without suit or other circumstances, for the fee-simple ought to vest in the tenant for life at the same instant that he performs the condition or never. [14]But no tortuous act can take the reversion out of the King.

    [15]And as to the case in 45 Ass. Pl. 6. (which had been cited) where by an office returned into the Chancery it was found that King Henry 3. gave a manor to the Earl of Cornwal and to his heirs of his body issuing, and that the earl was dead without heir of his body in the time of King Edward 1. and one M. came and pleaded that the earl by his charter shewn forth gave the manor in fee with clause of warranty to one W. by whom the same M. claimed, in exchange for another manor, and he said that the earl was ancestor to King Edward 1. and that assets descended to the said King Edward 1. viz. the manors of A. B. and C. and upon search it was found true that the assets were descended to him, and it was there adjudged that the said M. should have restitution; from whence (it had been said) it seems that the gift of the earl devested the reversion out of the King; so this it was answered, that the case does not prove that the gift of the earl devested the reversion out of the King, but it ought to be understood there that the gift of the earl to W. was before the Statute de Donis Conditionalibus, at which time there was no reversion but the earl had a fee-simple conditional, so that what the reporter of the case calls a reversion could not be a reversion, but it was a [16]possibility of a reversion; for the case is there reported, that King Henry the great-grandfather of King Edward 3. gave the manor to the Earl of Cornwal, and to the heirs of his body issuing, saving the reversion to him and to his heirs for default of issue, in which case the reporter mistakes the law where he terms it a reversion, for at that time there was no reversion of an estate-tail, but the whole was a fee-simple conditional, for the estate of the fee-simple was not divided from the estate-tail, so that the report, as it is made, does not stand with the law, and in order to make the case agree with the law, it shall be intended that the Earl of Cornwall alined the manor with warranty before the Statute de Donis Conditionalibus, in which case the King had no reversion, and the warranty was collateral, [17]so that there was no need then to have assets, although the assets might better satisfy the King in reason. Wherefore that case does not prove that the feoffment of tenant in tail of the gift of the King (which is but matter in deed) can devest the reversion out of the King. And so in the principal case it was agreed by the counsel on both sides, that the feoffment of Sir Thomas Wyat did not take away nor devest the reversion out of the King, but that the reversion continued in the King after the feoffment as it was before.

    For the defendants. Nevertheless Bullock and Manwood said, that by the feoffment in fee with livery of seizing made by Sir Thomas Wyat to George Moulton the whole estate and interest which Wyat had passed, and nothing was left in Wyat to be afterwards forfeited by him. For when a man gives land to one and to his heirs, and makes livery, all that he has in the land shall pass, whether it be right, rent, common, or other interest, and to such purpose is the livery made, which is a ceremony made use of to shew the voluntary demise of all that the party has in the thing delivered by him, and the receipt of the livery is a testimony of the other's voluntary acceptance of all that is demised to him, and the law ratifies the intention which the parties had in the act, and gives its judgment that the act shall be taken most strongly against him that does it, and most beneficially for him to whom it is done. From whence it follows that nothing remained in Sir Thomas Wyat after the livery, viz. neither an estate nor right, [18]for there cannot be a right in any one (as Manwood said) but where a wrong was done before, and no wrong was done here, for the tenant in tail might give the land to another during his own life without prejudice to any, for the reversion was not touched by the feoffment of Wyat, but it remained as it was before, and no wrong was done to Wyat himself, for he voluntarily parted with the estate which passed. So that there was no estate nor right in Wyat when he committed treason, and consequently the statutes, which provide that Wyat who was attainted should forfeit all his hereditaments and rights, do not affect Wyat as to the land in question, because he had no inheritance nor right in it.

    But perhaps it may be objected that the estate-tail which Wyat had in the land did not pass to Moulton by his feoffment, and therefore that it continued in Wyat; to this it may be said, true it is that the estate-tail did not pass to Moulton, nevertheless the estate-tail did not remain in Wyat, for he gave the land to Moulton and to his heirs, and contrary to that gift he did not nor could retain his estate-tail in the land, nor could Moulton take an estate-tail. [19]From whence it follows, that if Wyat himself after his feoffment had not the estate-tail, nor any other person had it, then the estate-tail must be in abeyance during the life of Wyat. And it seems by Littleton that an estate-tail once made may be in abeyance, [20]for, he says, if tenant in tail grants all his estate to another, the reversion in tail is not in the tenant in tail, nor shall he have an action of [21]wast, because he has not the reversion in him, as Littleton says; and if he has not the reversion there, a fortiore he has it not here where he gave the land to one and to his heirs; but (Littleton says) the tail shall be in abeyance. [22]As if land is given to one for life, the remainder to the right heirs of the body of J. S. who is alive, there the tail is in abeyance during the life of J. S. and after his decease it shall best in his issue. So here the estate-tail was in abeyance during the life of Wyat, for he could not retain it against his own feoffment in fee.

    And perhaps it may be asked what estate passed to George Moulton if the estate-tail did not pass to him; to this it may be answered that the land was given to him and to his heirs, in which limitation the tail could not be given, and a greater estate than for life was given, and such an estate was given as should descend to the heir of Moulton, which must be an estate of inheritance; from whence it seems that the estate given was a fee-simple, that is a fee-simple determinable upon the estate-tail, of a fee-simple until the issue of Wyat had avoided his estate, which he might well enough avoid by entry or formedon. [23]For before the Act of 26 H. 8. tenant in tail should not forfeit his estate by attainder of treason, for the Statute de Donis Conditionalibus preserved the estate-tail to the issue until the statute of 26 H. 8. was made, by which it is ordained that he who is attainted of treason shall forfeit to the King all his hereditaments, and the special act of confirmation of the attainder of Wyat adds further, that he shall forfeit all his rights, and if Wyat after the feoffment had no inheritance nor right in the land, he could not forfeit it, and then there was no obstacle to the issue of Wyat but that he might enter upon Moulton or his assigns after the death of Wyat who was attainted, and the mean time Moulton and his assigns had a fee-simple, (but that was determinable or defeasible as is said before) and the King had another fee-simple, that is, he retained his ancient fee-simple which he had before the feoffment made by Wyat, so that there were two fees-simple of one and the same land at one and the same time, so there shall be in many cases. [24]For Manwood said, if before the statute of 34 & 35 H. 8. tenant in tail of the gift of the King had suffered a common recovery, the issue in tail should have been bound for ever by reason of the recompence in value, [25]and in that case the recoveror should have had a fee-simple determinable upon the estate-tail, and the King should have had his ancient fee-simple also. [26]And he said further, if one makes a gift in tail, the remainder in tail to J. S. and afterwards J. S. levies a fine in fee-simple of his remainder with proclamations, and dies leaving issues, and afterwards the first tenant in tail dies without issue, now he to whom the fine was levied shall have a fee-simple determinable upon the death of all the issues of J. S. and the donor has another fee-simple, so that there are two fees-simple of one and the same land, as Manwood said. [27]And, it was said, if A. is seized in fee, and makes a gift in tail at this day to B. to the use of C. in fee, not the cestuy que use who has the land by the statute of 27 H. 8. has one fee-simple in the land determinable upon the estate-tail, and the donor has another. [28]But note (reader) that a use cannot be limited upon an estate-tail, as it was adjudged in 24 H. 8. in the title of Feoffments to Uses, in the abridgment of the Lord Brook which is now in print. [29]And so Bullock cited the case in 15 Ed. 4. where a man granted a rent-charge in tail out of his land, and the tenant in tail suffered a common recovery with voucher, there the recoveror had a fee-simple determinable, and yet he had no fee-simple of the thing. [30]So if the lord of a villain enters into the entailed lands of his villain, he has one fee-simple, which is determinable upon the estate-tail, and the donor has another fee-simple. And so in may other cases there may be two fees-simple of one and the same land at one and the same time. So here in the principal case the King had one fee-simple which continued in the Crown, and by the feoffment Moulton had an estate which was descendible to his heirs, which is and may be called a fee-simple, which estate he gave to Edmund Walsingham, who died seized, and the land descended to Thomas Walsingham, the defendant, after which time Wyat committed treason, and was attainted and executed, and nothing can come to the Crown by his attainder but that which was in him, and he had not in him an estate of freehold or inheritance, nor any right or title to the land contained in the information, for which reason the Queen cannot impeach the defendants of the intrusion. And many other things were said by them to enforce this opinion.

    On the other hand it was argued for the Queen, that by the feoffment of Sir Thomas Wyat to Moulton, no other estate than for the life of Wyat only passed.[31] And here it is not so much to be considered what estate Wyat limited by words upon his feoffment to Moulton, as what estate the law will suffer to pass, and inasmuch as it is confessed that by the feoffment the fee simple was not directed out of the King, form thence it follows in a manner consequentially that no fee-simple passed to Moulton, for none can give to another that which he himself has not nor can have, and in every gift there ought to be a donor and donee, and a thing which may be given, and although the principal case there was a donor and donee, yet there was no fee-simple in Wyat which he could give, for the fee-simple rested irremoveably in the Crown; yet Wyat had the land, but the land itself is one thing, and the estate in the land is another thing, for an estate is a time in the land, or land for a time, and there are diversities of estates, which are no more than diversities of time, for he who has a fee-simple in land has a time in the land without end, or the land for the time without end, and he who has land in tail has a time in the land or the land for time as long as he has issues of his body, and he who has an estate in land for life has no time in it longer than for his own life, and so of him who has an estate in land for the life of another, or for years. Then when Wyat had but an estate, in the land for a time as long as there was any issue of the body of his father, and after the failure of such issue the King had a time in the land without end, or the land for time without end, which is termed a fee-simple, the words of Wyat upon his livery could not make that away from the Crown, nor give it to Moulton, and the law does not measure the gift of Wyat according to his words, but according to his ability, and here he was disabled to give the land for a greater time than he had, for which reason no fee-simple could pass.

    And the estate-tail could not pass to Moulton, for none can possibly be tenant in tail but he only who is comprehended in the intent of the donor, and who is within his limitation.[32] For estates-tail are made by the Act of Westminster 2. and the effectual words of the statute, upon which estates-tail are founded, are these, The lord the King hath ordained that the will of the giver, according to the form in the deed of his gift manifestly expressed, from henceforth shall be observed; and it was the will of the King, who gave the estate-tail here, that Sir Thomas Wyat, the father, and the heirs males of his body begotten, should have the land, and no other; and therefore Moulton, who was of another blood, was not comprehended in his will, nor expressed in the form of the gift, for which reason it is impossible that Moulton could be tenant in tail, or that the estate-tail which was in Wyat could be transferred to him.

    Further, an estate for term of the life of Moulton could not pass to Moulton by the said feoffment,[33] because Wyat had no power to give the land to him for so long, for he had but to do with the land during his own life only, and if he might convey the land to Moulton, so far the same reason he could not make a feoffment in fee of the land to Moulton, so far the same reason he could not make an estate to him for the term of his life, for thereby the fee-simple which was in the Crown would be touched as well as by a feoffment, for which reason Wyat was disabled to make the one estate as well as the other, and therefore the feoffment could not give an estate to Moulton for his life. And if neither a fee-simple, nor an estate-tail, nor an estate for life of Moulton could pass, then such estate as Wyat was able to give passed, and that was only an estate for the life of Wyat, for such estate he might lawfully give, but no greater freehold. And then when Wyat was put to death, the estate of Thomas Walsingham, the defendant, was determined, and he by his occupation afterwards became the intruder, and so punishable.

    And where it was said on the other side that a greater estate than for life passed by the feoffment to Moulton, for that the estate-tail was in abeyance, to prove which [34] Littleton was cited, the apprentice and Barham [35] denied the law to be so in the said case in Littleton where tenant in tail grants his estate, for, they said, tenant in tail cannot by any means give the estate-tail to another, because none but he who is comprehended in the intent of the donor shall be tenant in tail, and if by the grant of tenant in tail of all his estate no other could ever have his estate, to what purpose should the estate be in abeyance? For things shall be in abeyance to the intent that another may have them afterwards, and not immediately, but in time to come, and they shall be in abeyance until they can vest in the other. [36] As in the case of a lease for life, the remainder to the right heirs of the body of J. S. who is alive, there the tail shall be in abeyance until the death of J. S. and then it shall vest in his issue, because it could not vest before, and to this purpose of vesting afterwards it was in abeyance. But in the principal case the estate-tail shall never vest in any stranger, and therefore to make that to pass out of one which shall never vest in another is idle and to no purpose, and quite foreign to the intent and consideration of the law in allowing things to be in abeyance. Wherefore Littleton has mistaken the law in this point, and he has put in his book divers cases which impugn his opinion in the other case. [37]For he says that if tenant in tail makes a lease for years, and afterwards releases to the lessee all the right which he has in the land, to have and to hold to the lessee and to his heirs for ever, by force of this release nothing passes but for the term of life of the tenant in tail. [38]So he says that if tenant in tail makes a lease for his own life, and afterwards releases to the lessee, and to his heirs all the right which he has in the land, the estate of the lessee is not enlarged by force of such release, because when the lessee had an estate in the land for the term of life of the tenant in tail, then he had all the right which the tenant in tail could lawfully grant or release, so that by such release no right passes, inasmuch as his right was gone before. There are the words of Littleton, in which cases every one ought to take it that the release of all the right is of as much effect as a grant of all his estate, and therefore these cases impugn the reason of the other case abovementioned.

    And as to what is said in Littleton, [39]that the tenant in tail shall not have an action of wast against the grantee of his estate, they agreed that the law was on, but the reason[40] thereof is not because he has a greater estate than for the life of the tenant in tail, but because the estate of the tenant in tail was dispunishable of wast, and he might lawfully do wast, and therefore when he granted over his estate to another, therein he granted his privilege to do wast, which was annexed to his estate, and it was as much as if he had made a lease for his own life without impeachment of wast. [41]And the apprentice resembled this to the case in 42 Ed. 3. where a man released for himself and his heirs to his lessee for life, all the right which he had in the same lands, and also that he and his heirs should not demand any right, claim, or challenge for the term of life of the tenant, and in an action of wast brought by the son of him who released, the lessee pleaded the said deed, and there it seems to be the better opinion that the wast was dispunishable, for the clause in the deed was equivalent to a clause of dispunishment of wast. And so the grant of the whole estate of the tenant in tail is equivalent to words of dispunishment of wast, which is a privilege contained in the estate of the tenant in tail. But that case in Littleton does not prove that the tail is out of the tenant in tail. But that case in Littleton does not prove that the tail is out of the tenant in tail, or that the other has a greater estate than for the life of the tenant in tail.

    And as to what has been said on the other side, that the estate given to Moulton was such as should descend,[42] to this it was agreed that so it should, because the land was given to Moulton, and to his heirs, in which case the words (his heirs) shall make the estate (although it be but for the life of the tenant in tail) descendible during the life of the cestuy que vie, viz. of Wyat. [43]For Littleton says, in his chapter of Warranty, that if one leases land to a man and to his heirs during the life of another, and the lessee dies, living cestuy qui vie, and a stranger enters, the heir of the lessee may oust him, and that by reason of the limitation of the lessor; so that the estate there is descendible, and yet it is not an estate of inheritance, but only of freehold, (i) for the heir shall not have an assize of mortdancestor there, [44] nor shall the wife of the fater be endowed, [45] and if the heir commits wast, he shall be punished in an action of wast. So that although by the limitation it is made descendible, yet it is only a freehold, and the reversion remains in the lessor. [46] And hereupon the apprentice cited the case in 26 Ass. pl. 31. where the issue of tenant by the curtesy brought an assize, and the tenant said that the tenant by the curtesy, who is yet alive, leased his estate to the ancestor of the tenant, who died seized of his estate, after whose death he (the tenant) was in as son and heir, and he demanded judgment if the demandant might have the assize, and it was held a good bar, for the reversion was confessed to be in the demandant, in which case inasmuch as the tenant said that he was in as son and heir, it is to be understood that the grant was made to his ancestor and to his heirs. And it is to be observed that the reason why the bar was held good was, for that the reversion was confessed to be in the demandant, so that the reversion was always in him who had it, notwithstanding such descent and entry, and such is but in defect an occupant. And he also said that in 17 Ed. 3. a. a woman who was endowed of an advowson granted it to one and to his heirs during her own life, and there he in the reversion made title to it by the presentation of the heir of the grantee as tenant for life to him, as a thing done duly by his particular tenant, and yet in effect he was but an occupant. [47]And he also cited the case of Stowel in 11 H. 4. in a formedon, where lands were leased by fine to divers persons and to their heirs during the life of the Lady Hillary, the remainder in fee to others, and it seems by the book that upon default of the lessees, they in remainder should be received, for the limitation to the heirs of the lessees during the life of the lady did not give an estate in fee, but thereby the heirs might have the land during the life of the lady. So here although the estate which Wyat by reason of the limitation to the heirs, yet this is no proof that a greater estate than for the life of Wyat passed out of Wyat, and the estate tail remained always in Wyat. [48]And so it is, he said, in the case which ahs been put on the other side where the lord enters upon his villain being tenant in tail, for the lord shall not have the estate-tail, nor a fee-simple determinable, nor any other estate but only for the life of his villain, for when the law authorizes the lord of the villain to enter, it does not authorize him to take the reversion out of the donor, for if so, it would do wrong, and the lord of the villain cannot be tenant in tail; from whence it follows, that if hw shall not have a fee-simple, nor a fee-tail, he shall only have an estate for the life of the villain, [49]for if after his entry he will manumise the villain, and afterwards the villain hath issue, and dies, the issue shall be free, and is inheritable to the tail, and may oust the lord. [50]And so in the case of 15 Ed. 4. before cited, if the recoveror will avow for the rent, in which he had no simple-fee, than for the life of tenant in tail. So that in all these cases neither the recoveror, nor the lord of the villain, nor the heirs who have the freehold which is descended to them, nor Moulton in the principal case, have any fee-simple, for their estates cannot be termed a fee-simple, inasmuch as they have no inheritance of continuance.

    Nevertheless the apprentice said that he would confess thee are three several estates of inheritance which may be called estates in fee.[51] [52]The first is, a fee-simple, and that is, where lands are given to a man and to his heirs absolutely without any end or limitation put to the estate, for (fee) is an inheritance, as Littleton says, and (simple) is that which is pure and perpetual, so that inasmuch as he has an absolute estate of perpetuity in the land, such estate is properly termed a fee-simple.

    Another fee there is, which may be called a fee-simple determinable, [53]as if land is given to a man and to his heirs as long as J. S. shall have heirs of his body, there he to whom the land is given has a fee-simple, but his estate is determinable upon the death of J. S. without issue, for then the fee is ended, and the feoffor shall have the land again. So if land is given to a man and to his heirs so long as he shall pay 20s. annually to A. or as long as the [54]church of St. Paul shall stand, his estate is a fee-simple determinable in which case he has the whole estate in him; and such perpetuity of an estate which may continue for ever, though at the same time there is a contingency which when it happens will determine the estate (which contingency cannot properly be called a condition, but a limitation) may be termed a fee-simple determinable.

    The third estate in fee may be called a base fee, and that is, where A. has a good and absolute estate of fee-simple in land, and B. has another estate of fee in the same land, which shall descend from heir to heir, but which is base in respect of the fee of A. as being younger than the fee of A. and not of absolute perpetuity as the fee of A. is; [55]as if a man at this day makes a gift in tail, and the donee is attainted of treason, the Queen and her heirs shall have the land as long as there are any heirs of the body of the donee, and in that case there are two fees, for the donor has his ancient fee, which is a fee-simple, and the Queen has another fee in the same land, which is such a fee as shall descend, and such as the Queen may grant to another in fee, and such whereof the wife of the grantee shall be [56] endowed, and if it descends to his heir, it shall be assets to the heir in debt, or to render in value for the warranty of his father, but yet it is but a base fee, for it is younger in time than the fee of the donor, and it shall not endure longer than there continue to be heirs of the body of the donee, and if such heirs fail, this fee is gone, whereas the fee of the donor shall never perish, so that the one is pure and perpetual, and the other is but base and temporary, and nothing more than an inheritance upon the case. [57] So if at this day tenant in tail by indenture enrolled bargains and sells the land to another and to his heirs, the bargainee has a fee in the land as he had in the use, for the use is a new thing which may be derived in fee, as a rent-charge may out of land in tail, and by the words of the Act which conveys the land to the use, and makes the bargainee to have a fee in the land as he had in the use, he has a fee in the land, but that is only a base fee, and the donor has the pure fee, viz. the fee-simple, for the causes aforesaid. [58]And in 40 Ass. pl. 36. it is put, that if there is tenant in tail, and the land in tail is recovered in value, and put in execution by reason of a warranty in fee which the tenant in tail made of the other land, he who has recovered in value shall have a fee-simple in this land, and the donor shall retain his fee-simple: which case was put by Barham. [59]And so it is, the apprentice said, in the case of 29 Ass. pl. 61. where tenant in tail was bound in a statute-merchant, and had issue, and the issue was outlawed for felony, and obtained a charter of pardon in the life of the father, the father died, the issue entered, and the conusee sued execution of the land, and the heir brought an assize, and whether or no the assize was maintainable was there debated, and the principal point argued was, what estate the issue had, for if he had an estate-tail, in which case execution could not be sued against him, and if the issue had a fee-simple, or any other estate than an estate-tail, then the assize was not maintainable; and there it appears that the outlawry for felony so disabled him in blood that he could not take by descent the land in tail any more than land in fee-simple, notwithstanding the charter of pardon, which could not [60] restore his blood to its former purity, from whence it follows, that when the father died, the land could not [61] revert to the donor, because the donee had issue, and the issue could not take by [62] descent by reason of his disability, so that upon the death of the father the freehold in deed or in law was in none, but in nubibus, as it is where [63] tenant per auter vie dies in the life of cestuy que vie, and none enters, in which case every man in the world had an equal title to the land, and therefore when the issue in tail entered, he was but an [64] occupant, for in such case the land conceditur occupanti, and he could not be an occupant of an estate-tail, for none shall have the estate-tail but the issues of the donee who shall take by descent, and such an occupant ought to have a greater estate than an occupant of a freehold, for it shall descend to his heir, for which reason it seems that in that case the issue had a base fee, and the donor had his fee, viz. the fee-simple, and so there were two fees of one and the same land at one and the same time; and because the estate of the issue was subject to the execution, the issue was nonsuited in the assize. So that, he said, there may be two fees of one and the same land at one and the same time. But it seemed to some that in that case the issue should only have an estate for his own life as occupant. And he said that there shall be a base fee in the cases which have been put, [65] where a recovery was had against the King's donee in tail before the statute of 34 H. 8. and where [66] tenant in tail in remainder levies a fine with proclamations, in which cases there are two fees, as before has been said.

    Wherefore it appears form these cases that there are three estates in fee, viz. fee-simple-absolute, fee-simple-determinable, and a base fee, the last of which is, where a man has land to him and to his heirs during the inheritance which another had. But in the principal case Moulton had no fee by the feoffment, viz. neither a fee-simple absolute, nor a fee-simple determinable, nor a base fee, for a base fee is where a man has land to him and to his heirs during an estate of inheritance which another had. But the estate of Moulton was only an estate for the life of Wyat, so that the reversion of the trail remained in Wyat.[67] [68]And to prove this the case in 18 Ed. 3. was cited, where the King gave land to the earl marshal and to his heirs of his body begotten, saving the reversion to himself, and the earl by the King's license leased the land to one Adam Brown for his life, saving the reversion to the earl and to this heirs of his body begotten, and for default of issue, to the King, the earl died, having issue two daughters, one of which was within age, the tenant for life being impleaded made default after default, and the daughters and their husbands prayed to be received, and because one of the daughters was within age they prayed that the parol might demur, and there it was touched whether the reversion upon the lease for life could be reserved in tail, and whether the daughters should be received, inasmuch as the tenant was their deforceor; and afterwards they were received by the award of the Court, and the parol was put without day for the nonage of the one. From which case it appears that they were received in respect of the tail which was in them, and that the parol demurred in respect that that estate was descended to them, for the earl could not gain a fee-simple by the lease, because the fee-simple remained in the King, which could not be divested by the lease for life, nor could he gain a fee-simple determinable, nor a base fee by the lease, for such estates are not to be gained but by other acts, and if the estate-tail should be there retained, so shall it also be here upon the feoffment of Wyat to Moulton, for a greater estate than a freehold could not pass by the feoffment. But it seemed to some in the said case of 18 Ed. 3. that if the land could not pass to Adam for his own life, but for the life of the earl marshal, then by the death of the earl the estate of Adam was ended, and he became tenant at sufferance, or rather he was in as an intruder, and so it was admitted by the action brought against him by the demandant, whereby the demandant made him tenant of the freehold, and if he was so, it is all one as to that point, for an intruder or disseizor in such case could but have an estate for the lives of the two daughters in tail, so that the reversion in tail was in them by descent, by reason whereof they were receivable, and the parol should demur for the nonage of the one: and there Shard and Wilby said, "heretofore the heir was receivable by reason of a reversion as well of fee-tail as of fee-simple," from whence, it seems, they took it that the reversion was in tail.

    But, it was said, howsoever the law be as to the tenant in tail himself, viz. as to Wyat, and thought it should be admitted that he shall not say, against his own feoffment, that the estate-tail continued in him, yet Queen Mary might say that as to her the estate-tail continued in Wyat, for the feoffment could not divest the reversion in fee out of the Crown, by the same reason no act in deed which Wyat could do, should take away the benefit which the Crown should have by the reversion; and if there are any advantages incident to the reversion in respect of the essence or continuance of the estate-tail in the line of the tail; the Crown cannot be deprived of them, and in respect of them the King shall say that, as to him, the estate-tail continues, as the reversion in fee continues in him; and as the King shall say that, notwithstanding any feoffment of the tenant in tail, he shall have against the issues in tail his services reserved, homage, fealty, rent, aid to marry his daughter, and aid to make his son a knight, and the wardship of the bodies of the issues, by the same reason he shall have all the commodities of the land itself which the continuance of the tail will bring to the Crown. And for the having of these the estate-tail and the possession shall be adjudged in law to continue in the line of the tail, as to the King, for it was the King's intent in the original creation and gift of the estate-tail that the land should continue in the line, and that he should have all the benefits incident to the reversion, and therefore all feoffments made by the tenant in tail are null and void against the King. [69] And in proof of this matter the case in 21 Ass. pl. 15. was cited, where it was found by office that the father tenant of the King had aliened the land by license to two chaplains in fee, and took back an estate by fine to himself for life, the remainder to his son and heir, who was within age, and to his wife, and to the heirs of the son, and that the father was dead, and upon this office the son and his wife had livery, and afterwards an ancient fine was found in the Treasury, by which the father had but a fee-tail, and the transcript was sent by writ, which issued out of the Chancery, and out of that issued a scire facias against the son and his wife to know why the land should not be re-seized into the King's hands according to the Statute of Lincoln, which wills, that if after livery it be found by record that the King hath right to seize, then the party shall be warned to know if he can say any thing why the land should not be re-seized, and they came and said that they had their warranty against the chaplains, which they should lose if that suit was maintainable, and there it was said that the King was not apprised of his estate, so that he was deceived in the grant of the license; and as to the warranty, the King shall but have the land for a time, viz. during the nonage of the infant, so that the warranty shall not be totally lost, wherefore the Court awarded that the land should be re-seized into the King's hands, and that at the full age of the infant he who had the right thereof should sue for it against the King. In which case it is to be understood by certain word therein that the fee-simple was in the King, whereupon it appears that the alienation did not take away the reversion out of the King, and that the tail was in esse as to the King, and that by the feoffment he should not be deprived of any benefit or profit of the land. [70]And to the like purpose the case in 40s. Ass. pl. 36. was cited, which was thus, the Lord Clifford, tenant in tail of the gift of the King, purchased a license to enfeoff certain chaplains of the same land, and to take back an estate to him and to his wife in tail, the remainder to his own right heirs, and he died, and his wife took another husband, against whom a scire facias issued to know if he could say any thing why he should not make restitution of the issues of the land for the time that he occupied the same land in the life of his wife during the nonage of the Lord Clifford, then being within age, who came and said that the chaplains were enfeoffed by the first husband, by force whereof the wife was warranted, and that the issue had assets by descent, in which case he was disinherited by reason of the warranty: and the King's serjeants said that the license was purchased in deceit of the King, who did not perceive his right, which could not discontinue the reversion of the King, and consequently he had cause to have the wardship, and so to be answered for the issues: [71] and it was there said by Fitz-John, that if the lands in tail had been rendered in value by reason of a warranty made by tenant, in tail, he who recovered them in value should have had a fee-simple in them, and yet the reversion was in the King, but for the life of the issues the King should have had no advantage thereof; to which Ludd there said that the King should have the wardship of the issues in tail in that case: and afterwards it was awarded by the advice of all the justices, that he should be charged in right of two parts of the land for the time that he occupied them, and that he should be discharged in right of the third part, whereof the wife had cause to have dower. From which judgment it appears, that by the feoffment of the land, the reversion was not taken out of the King, and that such feoffment was no obstacle to the King but that he might enter into the land, and have the mesne profits, for if nothing passed by the feoffment but an estate for the life of the Lord Clifford, who made the feoffment, then the estate given by the feoffment, and the estate taken back, was determined by the death of the Lord Clifford the feoffor, and the wife at best could but be tenant at sufferance, and such she could not be, [72] for if the King had entered, the possession of the wife afterwards should have been an intrusion, and his latches of entry made no difference in that respect, for latches of entry shall not hurt the King, quia nullum tempus occurrit regi, so that his non-entry is equivalent to an entry, and therefore every one that meddles with the land after the King's title is an intruder, and shall answer for the issues of the land to the King. And as it was in that case, so shall it also be here as to the escheat of the estate-tail, for after the attainder and death of Sir Thomas Wyat, Thomas Walsingham the defendant (notwithstanding the feoffment and descent to him), could not have as good an estate as tenant at sufferance, for his estate is of such sort as if an entry in deed had been made by the Queen, and he had afterwards intruded upon her (inasmuch as no office is requisite in this ease of attainder of treason, by reason of the statutes aforesaid) and therefore he shall be adjudged an intruder, and the estate-tail which Sir Thomas Wyat had is merely extinct.

    And this last matter was made a distinct point by the apprentice, viz. whether the tail should be said to be extinct, and the Queen should have the land by way of reverter, or by way of forfeiture.[73] And he said that the Queen shall have it by way of reverter, and to all purposes as if all the issues begotten of the body of Sir Thomas Wyat, the first donee, had been dead. And such is the intent of the statute of 26 H. 8. cap. 13. which enacts that all persons attainted of treason shall lose and forfeit to the King, his heirs and successors, all lands and tenements which such offender shall have of any estate of inheritance at the time of the treason committed, or at any time afterwards, saving to all others and their heirs (others than the offenders in treason, their heirs and successors), all their rights and possessions, leases, and other profits which they had the day of the treason, or afterwards. [74]By which general words (that they shall lose and forfeit all lands and tenements which they had of any estate of inheritance), and by the exclusion of the heir in the saving, lands in tail shall be forfeited; and how shall they be forfeited to the King and to his heirs, where he had the fee-simple before? [75] For he cannot have the land to him and to his heirs by the forfeiture, where he had the fee-simple of it to him and to his heirs before; for if he should have another fee-simple determinable upon the estate-tail, then he would have two fees-simple in one and the same land at one and the same time. And then if the King should make a lease for 50 years, and afterwards the issues of the tenant in tail attainted should die, so that there were none remaining to inherit the tail, if it had not been forfeited, what would become of the lease? Should it be good or not? And should the lease be derived out of the one fee-simple, or out of both? And is the one fee-simple a reversion to the other? And how can that be?

    And can there be two fees in one and the same person at one and the same time, as there may be an estate tail in one, and a fee-simple expectant upon it in the same person ? [76] No, sir, it would be inconvenient to have two estates in fee in one and the same person at one and the same time, although there may be two fees in several persons at one and the same time, and to expound it so as to make two fees in one and the same person at one and the same time would beget confusion, and would be inconsistent with the rules of our law. [77] And it is held in 9 Ed. 4. that if tenant in tail enfeoffs the donor in fee, this is no discontinuance, but the issue in tail may well enter; [78] for it is not a discontinuance but where the reversion is discontinued, and there the alienation is made to him who had the fee; and also by this feoffment made to the donor and to his heirs, the donor shall not have a fee, for then he would have two fees-simple in one land, which cannot be, for the fee which he had before continues always in him, for which reason he cannot have a new fee, so that this estate in him is but for the term of life of the tenant in tail ; and it was there said that this case had been so adjudged. From which case here recited verbatim, it appears that one and the same person cannot have two fees in the same land at the same time. And it was the intent of the Legislature, when they enacted that estates-tail should be forfeited to the King and to his heirs, that if the King had the fee-simple before, he should retain the same fee-simple, and that the estate-tail should be extinct and determined in the ancient fee-simple, inasmuch as it excludes the heirs in tail, so that he shall retain his ancient fee-simple discharged of the estate-tail, for inasmuch as the King donor shall have the land again, and not the issues, it is all one in substance as if the issues had been dead, for the title and right of the issues is taken away by the Act, which, in the intent of the Legislature, is equivalent to a total failure of issue, so that it shall come to the King by way of reverter. And therefore all leases which such tenant in tail makes, although they be according to the Act of 32 H. 8. and all grants of rents made by the tenant in tail shall be void, as to the King, after the attainder which makes the reverter, for his ancient fee-simple which he shall retain is discharged of them.[79] And if the King should hold the lands charged with rents-charge, or with leases granted or made by the tenant in tail, which might be made for a great number of years, without any reservation, then no benefit would accrue to the King by such reverter, which could never be the intention of the Legislature; for inasmuch as the reversion of the King was void of such charges, and the King, after the attainder, shall have the land as land reverting to the fee-simple, and shall enjoy it in respect of his ancient fee-simple, it is reasonable that the King should hold the land discharged of such incumbrances. But if the reversion had been to a common person in fee, then the King has the land only by way of forfeiture, and he shall hold it charged with all the said incumbrances, but otherwise it is where the King himself had the reversion in fee before. And to prove this a case was cited which was adjudged in the Exchequer in the time of Queen Mary upon a bill of intrusion against William Austin, which case is entered in Mich. 1 & Philip and Mary, Roll 147, on the side of the Queen's remembrancer there, and was as follows: [80] Sir Thomas Wyat the father, being tenant in tail to him and to his heirs males of his body begotten, of the capital messuage of the manor of Eastfarleigh, and of the lands belonging to it, in the county of Kent, by the gift of King Henry 8. made to him by his letters-patent, bearing date the 20th day of November, in the 31st year of his reign, leased the same by indenture the 6th day of December, in the 33d year of the reign of the same King, to William Austin, and to Stephen Austin his father, for 36 years next following the Feast of St. Michael the Archangel, then last past, rendering a certain rent, the lessees entered, and afterwards Sir Thomas Wyat the father died, and afterwards Stephen Austin died, and afterwards Sir Thomas Wyat the son accepted the rent incurred after the death of his father by the hands of the said William Austin, and afterwards the said Sir Thomas Wyat the son committed treason, and was attainted, and put to death, leaving a son named Arthur Wyat alive, and all this matter was disclosed in pleading, and the reversion in fee was confessed to continue always in the Crown, and there- upon the attorney of the King and Queen demurred in law. And the matter was well debated at the Bar, and afterwards it was argued by all the Barons of the Exchequer, and at last it was adjudged that Austin was an intruder, because his lease, which was made good against Sir Thomas Wyat the son, by his acceptance of the rent, was determined by the attainder as fully as if the tail had been ended for want of issues; [81] and the saving of leases in the Acts of Parliament was taken to be of other leases than of those which are contrary to the reverter, for if the estate-tail is ended, the lease derived out of it is also ended. And a copy of the record of the said case was shewn to the Court, and the matter itself was also well remembered by them. And so, it was said, in the principal case the Queen shall have the land in nature of a reverter, discharged of all incumbrances made by any issue in tail, which incumbrances, if they were contrary to the point of reverter, were not saved by the saving in the Acts. But Manwood said, that there is a diversity between Austin's case and the principal case; for in Austin's case the freehold came to the King, and therefore it was reasonable that the freehold should be discharged of the lease as an incumbrance, but in the principal case, he said, the freehold shall not come to the King, and so there is a diversity between the cases. But this difference was not allowed.

    And after these arguments, the Court took advice for the space of a year, and the last day of Michaelmas term, in the 14th and 15th years of the reign of Queen Elizabeth, the counsel of both the parties being at the Bar, and Baron Frevil being absent, Saunders, Chief Baron, said, I and my companions have often conferred together upon this matter, and we are all unanimously of opinion that judgment ought to be given for the Queen. And I shall briefly shew the reason of our opinion, and that which I now speak is agreed by us all, and therefore, though it is spoken by me alone, accept it as if spoken by all of us. Then he made a discourse upon the matter, in which he said that they took the law to be, [82] that the intail and the right thereof remained in Sir Thomas Wyat notwithstanding his feoffment to Moulton, [83] and that the intail was not given to Moulton by that feoffment, nor could it be given to any other, for Sir Thomas Wyat had no power to give it away at all, because none could have it but he who was comprehended in the intent of the donor, and therefore the estate-tail was not out of Sir Thomas Wyat. And, he said, they were all unanimously agreed that the diversity of [84] Littleton is not law, for when tenant in tail grants over all his estate to another, and when he makes a lease for his own life, it is one and the same thing, for the lessee has but the land for the [85] life of the tenant in tail, and the intail is not out of the tenant in tail in the one case more than in the other, but it remains in him equally in both the cases; and there is no ancient book which warrants the said opinion of Littleton, viz. that the intail shall be in abeyance by the grant of his estate, nor is there any reason why it should be in [86] abeyance in that case any more than where the tenant in tail makes a lease for his own life, and afterwards releases all his right to the lessee. And that the right of the intail is not given out of the tenant in tail by his feoffment, he said, it is proved by the common declaration in a formedon in descender, which is, [87] that the right descended to the demandant from the feoffor by the form of the gift aforesaid, and if the right descended from him, consequently it was in him at his death. [88] And he cited Trebony's case in 48 Ed. 3. that notwithstanding the feoffment of tenant in tail, the donor shall avow upon him for homage, fealty, and rent due to him, because he is in right his tenant as to the avowry: and in such case if the issue in tail be plaintiff in replevin against the donor, he shall compel him to avow upon him for the services reserved, and he shall abate the avowry made upon the feoffee, which proves that the right of the intail remains in him as to himself and as to the donor. And he said that the cases before cited of 18 Ed. 3 and 21 Ass. and 40 Ass. prove strongly in this case that the reversion in the Crown was not touched by the feoffment of Wyat, and that no prejudice came to the Crown by such feoffment, but that the Queen shall have all advantages as fully as if the feoffment had not been made, and therefore he said that the estate-tail was extinct, in the fee-simple which Queen Mary had in her, in the same manner as an office, which is granted to one in fee, who is afterwards attainted, shall be extinguished in the Crown. And he said that the record before mentioned against Austin well warranted them to maintain the judgment here given, for in that case Queen Mary had the land in nature of a reverter, whereby all estates and incumbrances made after the tail by the issues in tail were discharged and avoided. And in his discourse he approved of the said term and definition of a base fee. And for these causes, he said, it seemed to them that the estate-tail was ended in nature of a reverter, and therefore that the defendants should be adjudged intruders. And at the end he said that although they were all of opinion against Walsingham upon the matter in law, and that his perception of the profits was an injury to the Crown, yet they would defer their judgment until the next term, and then they would give judgment, according to their opinion aforesaid.

    Nota bene by the reporter. -And note, in the said case of Austin after judgment given against him, process was awarded against him to make a fine. And it further appears in the record there as follows, viz.

    "And the aforesaid William Austin here in Court at the said octave of St. Michael being found, and of the premisses by the Barons here asked, of the trespass and contempt aforesaid whereof, etc. is committed to the said prison of the Fleet, there to tarry until, etc. And because it is given to the Court here to understand, that the said William Austin from the possession of the said site of the manor aforesaid and other the premisses according to the tenor of the judgment aforesaid himself hath not amoved, but the possession thereof yet bath and keeps, contrary to the tenor of the judgment aforesaid, it is agreed that the sheriff of the said county of Kent be commanded, that the said William Austin and his assigns from the posses.. sion of the said site of the manor aforesaid and other the premisses and of every parcel: thereof he amove and cause to be amoved, according to the tenor of the judgment aforesaid, and the said site of the manor aforesaid and other the premisses into the hands of the said lord the King and lady the Queen take, and safely, etc. so that of the same site and other the premisses to the same lord the King and lady the Queen he may answer, at the will of the said King and Queen, etc."

    By which it appears to be the practice of the Exchequer, that when a man is convicted in the Exchequer of an intrusion into any lands of the Crown, upon a bill of intrusion there exhibited, where the title of the Crown appears to be good, and the title of the party to be insufficient, although such suit is but a personal suit, and in effect nothing more than trespass, yet the party shall be removed and put out of possession by a writ formed in the case.[89]

    And afterwards in the said next term, viz. in Hillary term, in the 15th year of the reign of Queen Elizabeth, judgment was given by the Barons of the Queen and against the defendant. Which judgment was as follows.

    The rest of the record. -At which day they the same Thomas and John came here as, at first. And the aforesaid Attorney-General of the lady the Queen now, who prosecutes for the same lady the Queen, being present here in Court at the same day in his proper person, for the same lady the Queen prays judgment as at first. And the premisses being seen by the Barons, and mature deliberation being thereupon had amongst them, because it seems to them that the aforesaid plea of the aforesaid Thomas Walsingham and John Gillibrand by them in manner and form above pleaded is insufficient in law to discharge the aforesaid Thomas and John from the intrusion, trespass, and contempt aforesaid, it is considered by the same Barons that the afore- said Thomas Walsingham and John Gillibrand of the intrusion, trespass, and contempt aforesaid be convicted. And the sheriff is commanded that the said Thomas and John he attach, etc.

    Note, upon this judgment the defendants afterwards brought a writ of error in the Exchequer Chamber, to which they were moved by reason of a judgment upon demurrer which was given in the Common Pleas to the contrary of the foregoing judgment. And the case there adjudged was this: [90] The said George Moulton, the same day that the said Sir Thomas Wyat the son had enfeoffed him of the said tenements in East Peckham, which was in 35 H. 8. enfeoffed the said Sir Thomas Wyat the son of the manor of Hunton, in the county of Kent, in fee, upon condition that if the tenements in East Peckham or any parcel thereof should be evicted or taken from the said Moulton, his heirs or assigns, then it should be lawful for the said Moulton and his heirs to re-enter into the said manor of Hunton. Which manor of Hunton came by the attainder of Wyat to Queen Mary, who gave it in fee to Sir John Baker, Knight, from whom it came by descent to Richard Baker his son and heir, who made a lease of part of it to Roger Coveney, upon whom the said George Moulton entered, supposing that the condition was broken, because the said tenements in East Peckham were lawfully taken by the Queen from Walsingham his assignee, according to the judgment of the Barons of the Exchequer, and Coveney ousted him, whereupon Moulton brought an action of trespass in the Common Bench, and all the above matter was disclosed in pleading, and the parties demurred thereupon. And the case was argued both at the Bar and at the Bench. And all the justices agreed that the tenements in East Peckham were not lawfully evicted from Walsingham the assignee of Moulton by the attainder of Wyat and the entry of the Queen, and therefore they awarded that the said Moulton should take nothing by his writ, as it appears by the record of the case which is entered in Michaelmas term, 16 & 17 Elizabeth, Roll [91] 816.

    Which judgment was in the point contrary to the foregoing judgment in the Exchequer, by reason whereof the said Sir Thomas Walsingham, now knight, and the said Gillibrand brought a writ of error in the Exchequer Chamber before Sir Nicholas Bacon, Knight, Keeper of the Great Seal, and before William Cecil, Knight, Lord Burghley, Lord Treasurer of the Exchequer, who called to their assistance all the four Justices of the King's Bench, before all whom the foregoing judgment in the Exchequer was canvassed, and its validity or infirmity laid open, in Trinity term, in the 20th year of the reign of Queen Elizabeth, by Henry Beaumond the younger, on the part of Walsingham and Gillibrand, plaintiffs in error, and by Flowredew, apprentice, on the part of the Queen, defendant in error; and in Hillary term, in the 21st year of the reign of Queen Elizabeth, by Gawdy, Serjeant, on the part of the said plaintiffs in error, and by an apprentice of the Middle Temple on the part of the Queen.

    And the counsel who argued on both sides agreed in three points. First, that before the Statute de Donis Conditionalibus there was no other estate of inheritance but a fee-simple[92], which was of two sorts, viz. conditional and absolute, and what the conditional was, appears by the same Act de Donis Conditionalibus. And by that Act there was another estate made which was not at the common law, viz. a fee-tail, which is less than the fee-simple before was, and the fee-simple remains and continues in the donor. So that since the said Act there are two estates, a greater and a less, where before there was but one, and the alienation before the Act of him who had an estate of inheritance, and the alienation, after the Act, of him who has an estate-tail, is all of the same force and effect, from whence it follows that inasmuch as there are two estates of inheritance since the Act, Wyat the tenant in tail here had the one, and the King the other.

    The second point was, that the estate of inheritance, which Sir Thomas Wyat had at the time of the feoffment, was not given to Moulton by the feoffment, nor was he tenant in tail by such feoffment, for none shall be tenant in tail but he who is comprehended in the limitation of the gift by the donor, the donor's will being the warrant of estates-tail, and such was not Moulton here.[93]

    The third point agreed was, that the estate-tail was not discontinued nor confounded by the feofiment to Moulton, because the fee-simple in the King could not be taken or devested out of the King by the feoffment. [94] For the King is a body politic of all others most high and worthy, out of whose person no estate of inheritance or freehold can pass or be removed without matter of record. And the feoffment of Wyat to Moulton was but matter in deed, which was not sufficient to take the reversion out of the King. [95] And if the reversion in fee is not taken away or discontinued, the estate-tail cannot be discontinued, as it appears in Littleton and also in 9 Ed. 4.

    And then (it was said on the part of the Queen) if the estate-tail, which Wyat had at the time when he made the feoffment to Moulton, was not given to Moulton, nor discontinued, ergo neither a fee-simple nor an estate for the life of Moulton passed to Moulton, [96] for an estate for the life of Moulton could not pass to him without discontinuing the reversion, and also ergo no other estate could pass to Moulton but an estate for the life of Wyat, and such an estate must pass, because livery of seizin was made. And herein, the apprentice said, he would pursue the method of argument which Littleton [97] makes in his chapter of Estates upon Condition, where he speaks of a gift of lands to husband and wife during the coverture, for, he said, there are but four estates of freehold, viz. fee-simple, fee-tail, for term of one's own life, and for term of another man's life, and here the estate which Wyat gave to Moulton was not an estate in fee-simple, nor an estate in tail, nor an estate for Moulton's own life, ergo it was an estate for another man's life, viz. for the life of Wyat; and in this argument the major is true, and so is the minor, and consequently the conclusion also is true.

    But although no estate passed to Moulton than for the life of Wyat only, yet that estate was descendible during the life of Wyat, because the estate which passed was given to Moulton, and to his heirs, which words made the estate descendible, although in substance it was but an estate for another man's life. [98] And the like matter appears in Littleton, in his chapter of Warranty.

    And if no estate passed to Moulton but for the life of Wyat, then the estate-tail did not pass out of Wyat, but continued in him, and he had it at the time of the attainder. And if so be the attainder before the death of Wyat had not ended the estate (as it shall do by the rule of Austin's case), yet by the death of Wyat the estate given to Moulton was determined, for an estate for another man's life cannot endure longer than the life of cestuy que vie; and so the Queen shall have the land by way of reverter, at least by way of forfeiture.

    But it was said on behalf of the plaintiffs in error, that although it be admitted that nothing passed to Moulton but for the life of Wyat, yet the estate-tail did not continue in Wyat, nor could it be in him against his own feoffment, but it was in abeyance, according to the opinion of [99] Littleton. And then if the estate-tail was not in Wyat at the time of the attainder or afterwards, it shall not be forfeited, nor shall the land revert to the King. And upon this argument the counsel on this side much insisted.

    Against which it was strongly argued on the other side by the apprentice, who said that this case was not within the intent or consideration of the law in cases of abeyance. For no gifts shall make things to be in abeyance but such as are to the advantage of strangers, and not such as are to the advantage of the donors themselves or their heirs. As if a man has a prodigal son, who, he believes, will consume all his inheritance, if he lets it descend to him, there if the father makes a feoffment, and takes back all estate for life, the remainder to divers of his friends during the life of his son, the remainder to the right heirs of the son, in that case, for the benefit of the right heirs of the son, the remainder shall be in abeyance, so that there are two things observable herein, viz. the intent of the donor, and the benefit of a stranger, and the law deserves greatly to be commended for having devised such a way to preserve the inheritance. So if a man give land to his son for life, who is unmarried, the remainder for life to her who shall be his wife at the time of his death, now for the benefit of the wife the law preserves the estate, although she is not yet known, and in so doing it is greatly to be commended, for it satisfies the intent of the donor, and brings benefit to a stranger, and preserves the estate until it can vest. So that in this respect the law is to be approved of, and to be deemed a good law, for it is injurious to none, and beneficial to some. But in our case if the estate-tail should go out of Wyat, and remain in abeyance or in nubibus, then it would be out of him, and could never by any possibility vest in a stranger, but it should return to his heir in tail, and by such deceit he who was tenant in tail would avoid all forfeitures for treason which he might afterwards commit, or which he intended to commit, and in all probability he might make the feoffment for such purpose, so that by such contrivance the King, to whom lands in tail ought to come by forfeiture for treason at this day, would be prejudiced, and other mischiefs would ensue from it.

    And if the estate-tail should be suffered to be in abeyance, a principle of the law would be broken thereby, for in every gift which a man makes of land or goods there ought to be a donor, a donee, and a thing given. And here there is a donor it is true, viz. Wyat, and there is also a thing given, viz. the land, but point to me out, if you can, a donee, or tell me who it is to whom he has given the estate-tail which he had ? Most certainly there is no such person. [100] But where land is given to one for life, the remainder in fee to the right heirs of J. S. who is alive, in that case there is a donee of the fee, viz. the right heir when he shall be known, and when he has survived his ancestor, which may possibly be; so that there is a donee mediate, although there is not an immediate donee who can take the estate at the same instant that it was given, but forasmuch as he may afterwards take it, therefore in consideration of law he stands for a donee, and so the principle of the law is preserved and performed.

    But in the principal case there is no donee who can take the estate-tail presently or in time to come, but (say the other side) for that reason the estate-tail shall be in abeyance for the life of Wyat, and after his death it shall return to the heirs of the body of Wyat again; then, I say, Wyat would thereby avoid his forfeiture of the land for treason, and his son would be sure to have the land after his death, and if such doctrine was allowed, then a man might prevent all forfeitures to the Crown for treason. For if he is tenant in tail of the gift of the King, he may make a feoffment of it, and afterwards commit treason with security, for he knows that his son shall have the land. And if he is tenant in tail of the gift of a common person, there the case is the same, for then he may grant over all his estate to another before the treason committed, so that the treason committed afterwards, and his attainder thereupon, shall not hurt the issue in tail, but he shall have the estate-tail, and may enter immediately after the death of his father. And if he is tenant in fee-simple, and grants over all his estate to another, and afterwards commits treason, and is attainted, in that case also the King shall not have the escheat, if the law be so as Littleton and the counsel on the other side take it, for [101] Littleton puts the case, that tenant in tail grants all his estate to another, in which case, he says, the tail shall be in abeyance, and he does not put the case that he grants his estate to another, and to his heirs, but he leaves the word (heirs) out of the grant, which he did not do through carelessness, (for he was a very circumspect man, and was not apt to make such mistakes) but he omitted it as a word not material, and then when tenant in fee- simple grants all his estate to another, the grantee shall not have a fee-simple for want of the word (heirs), but he shall only have an estate for life (though his estate shall be without impeachment of was in that case, as well as the estate of the grantee [102] of tenant in tail shall be), and the fee-simple shall be in nubibus, or in abeyance, as well as the estate-tail shall be, and then if he commits treason, and dies, the fee-simple shall escheat to the common lord of whom the land is held, because the blood is corrupted between him and his heir, so that his heir cannot have it by descent, and the King shall not have it as a forfeiture for the treason, because he who committed the treason had not the fee at the time of the treason or afterwards. So that it is evident if such doctrine was allowed as is maintained by the counsel on the other side, it would tend to prevent all escheats for treason from coming to the Crown, the inconvenience of which is an argument that the law is [103] not so as Littleton holds, and as the counsel on the other side affirm.

    And if the law will allow the proprietor of an inheritance in land to convey his inheritance in abeyance, and by that means to avoid any forfeiture thereof, why does it not also allow the proprietor of goods and chattles, real and personal, to devest the property out of himself, and to convey them in abeyance, so as to avoid all executions and forfeitures which may be had against him? For my own part I can see no difference between the cases, but there is as much reason to allow the one as the other, and if the law should approve of either of them, it would be a very absurd and unwise law, and productive of much mischief, and of no good. And he said, though in some cases the law suffers a fee-simple or fee-tail to be in nubibus, (which, he said, is only for the benefit of strangers) yet to suffer it in the present case would be straining the law contrary to its original intent and institution.

    And afterwards authorities were cited as well on the one side as on the other, to prove the effect and operation of a release by tenant in tail of all his right, or of his estate. But the counsel for the Queen said, that those cases only and principally are material which concern the acts of tenant in tail, where the reversion is in the Crown, and to this the case of [104] 18 Ed. 3. of receipt was cited.

    But it was said on behalf of the Queen, that whatsoever the tenant in tail himself may say after such acts done by him, yet the King shall say that the reversion is in him, and he shall have all the benefits of the possession which the reversion draws to it or ought to have, and no matter in deed which the tenant in tail does or can do, shall deprive him of such advantages. So that the case is different between the tenant in tail himself who does the act, and the King who does no act. For although the tenant in tail, where he has granted all his estate to another, shall not have an action of wast, or although it be admitted that he shall not be received upon default of the grantee, yet this does not prove but that the King shall say that the estate-tail always continued in him, as to the King, and as to all profits or advantages which accrue to the King by way of reverter, or forfeiture, or wardship, or aid to marry his daughter, or otherwise. And upon this difference between the King and the tenant in tail himself, the apprentice relied strongly. And cases were cited to prove the several points before touched, which cases I do not intend to recite here, because they appear before in the report of the arguments in the first suit, upon which judgment was given in the 15th year of the present Queen.

    And at the end the apprentice said, that there was a defect in the pleading, which would prevent the reversal of the judgment, let the matter in law turn out how it might, and the defect was, that it is not effectually shewn that Wyat had issue alive, for if he had not (as it shall be intended that he had not, if it is not shewn to the contrary) then without question the King shall be in as in his reverter. And, sir, the information impeaches the present plaintiffs in error (who were the defendants in the first suit) of an intrusion into the lands in question lately parcel of the lands and possessions of Sir Thomas Wyat, Knight, late attainted of high treason, and the defendants pleaded in bar, that George Moulton was seized in fee, and enfeoffed Edmund Walsingham in fee, who died seized, and the tenements descended to the said Thomas Walsingham, the defendant below, and now plaintiff in error, and so he and Gillibrand as his servant justified, and traversed the intrusion, and averred that George Wyat, the son of the said Sir Thomas Wyat, who was attainted, was alive. Now for any thing that is yet shewn, it is not material whether he had a son alive or not, for it may be and shall be intended, for any thing that is hitherto shewn, that Sir Thomas Wyat was seized in fee, and therefore the averment that he had issue is vain and idle. But when the Queen's attorney came and replied, that Sir Thomas Wyat was seized in tail of the gift of the King, and that the reversion was in the Crown, then was the proper time for the defendants to shew, by way of rejoinder, that the issue inheritable to the tail was alive, to the intent to inform the Court that the land was not reverted to the Crown for want of issue, but as it is averred here it is in vain and immaterial, and just the same as if it had not been shewn at all. [105] As if a man brings an action of debt upon an obligation, and says that the defendant was of full age and made the deed, the defendant may say that he was within age, without answering to the full age, because it is not effectually shewn, and therefore the plaintiff may reply and say, that the defendant was of full age, and not within age, and so the negative which serves for a traverse shall come in that way. [106] So in assize if the tenant pleads a feoffment of the father of the plaintiff without condition, the plaintiff may say that the feoffment was upon condition, for the breach whereof he being heir entered, and he shall not traverse the simpleness of the feoffment without condition alledged by the tenant. So in the principal case the information and the bar don't minister any cause upon which the averment ought to be taken, and therefore it is as if it had not been shewn, in which case the Crown shall be adjudged in by reverter for default of issue, and then there is no error in the former judgment, nor does the matter in law aforesaid come in question. But he said that he relied not only upon this point, but upon the matter before, which proves that the Crown shall be in by way of [107] reverter, as in [108] Austin's case.

    And he said that in Austin's case the saving of all leases to strangers, which is as well in the private Act of Attainder of Wyat, as in the Act of 33 H. 8. cap. 20. and of 26 H. 8. cap. 13. by which tenant in tail shall forfeit for treason the lands entailed, could not preserve the lease of Austin, as it was there held, because the estate-tail, out of which the lease was made, was determined by reverter, and when the principal estate is ended, all particular estates derived out of it are ended together with it, for when the estate itself is no more, nothing can be saved out of it, because there is nothing existing out of which any thing should be saved, for out of nothing nothing can be saved, and therefore such savings ought to be intended of other leases than of those which are derived out of the estates determined. [109] And he resembled these sort of savings to a saving or proviso, which is in the Act of 1 Mary, which declares that the pretended Act of Attainder of Thomas Duke of Norfolk, made in 38 H. 8. for certain causes shewn in the said Act of 1 Mary was no Act, but utterly void, in which Act of 1 Mary there is a proviso that the said Act shall not extend to take from the patentees of King Hen. 8. and of Edw. 6. any lands or tenements which those Kings had by the attainder of the said duke, and which they had granted to others, but that the estate and right of such patentees shall be saved, as if the same Act of 1 Mary had not been made. Which proviso and saving served to [110] please many of the ignorant patentees who were members of that Parliament, but in fact it was utterly void, for if the supposed Act of Attainder was void, as the said explanatory Act of 1 Mary declared it to be, then the Crown never had any of the lands of the duke by any attainder of him, in which case all patents of such lands made by the said Kings were void, and therefore the proviso or saving was void, because it could not save to them that which they had not, and he said it was a [111]flattering proviso, which served to make fools merry. [112] And to the like purpose he cited a case between Unton and Hyde, which was in the King's Bench upon a writ of error in the time of the present Queen, in which he himself argued, where in the statute of 34 H. 8. cap. 5. of Explanation of last Wills of Land (in which it is declared that by the Act of 32 H. 8. of Wills, a will shall be taken to be good for two parts of the land held by knight's-service, although it be made of the whole) there is a proviso that the same Act of 34 H. 8. shall not extend to the will of Thomas Unton, which was made after the first Act of 32 H. 8. and before the explanatory Act of 34 H. 8. and Hyde claiming the two parts by the will obtained judgment in the Common Pleas in a writ of partition for the two parts, whereupon Sir Edward Unton, Knight, being heir to Thomas. Unton, apprehending that the will was void, because it was made of the whole land, and that he was at liberty by the said proviso to say so, brought a writ of error, and it was adjudged that it was not error, and therefore that error was marked in the roll as of no weight, (but other errors delayed the affirmance of the judgment) for when the Act of 34 H. 8. explained and declared that wills made of the whole land after the Act of 32 H. 8. and after the same explanatory Act also should be good for two parts, the Judges could not say otherwise; from whence it follows that the proviso touching the will of Thomas Unton could not be of any avail to Sir Edward, nor gave him any power to dispute the validity of the will as to the two parts, for to have disputed that would have been flying directly in the face of the Act. So by the same reason in Austin's case the Act which hath made the reverter hath destroyed the force of the saving. Wherefore it was prayed that the judgment might be affirmed.

    And after these arguments day was given until the second Saturday in Easter term next following, and in the mean time the Lord Treasurer desired the justices to take the matter and the arguments into consideration. And in the vacation next; following this term, viz. on Thursday, the 19th day of February, in the 21st year of the reign of Queen Elizabeth, died Sir Nicholas Bacon, Knight, of the county of Suffolk, and of the Society of Gray's-Inn, a man of great eloquence, gravity, and wisdom, who then was, and during all the reign of the said Queen Elizabeth, had been, Lord-Keeper of the Great-Seal, and before that was Attorney of the Court of Wards. In whose place Thomas Bromley, Esquire, born in the county of Salop, apprentice of the Inner-Temple, and Solicitor-General to Queen Elizabeth, was surrogated, and made Knight, and Lord Chancellor of England. And he, and the Lord Treasurer, and all the Barons of the Exchequer, and all the said justices of the King's Bench, the 19th day of May, in Easter term, in the 21st year of the reign of Queen Elizabeth, assembled together in the Exchequer Chamber for the cause aforesaid, upon account of a new writ of error then brought before the said Lord, Chancellor and the Lord Treasurer upon the said matter: (for the first writ of error abated by the death of the said Sir Nicholas Bacon, Lord-Keeper of the Great-Seal, for in the writ of error he was named by his Christian name and surname, and also by the name of Lord-Keeper of the Great-Seal, and therefore by his death the writ was abated, and this new writ purchased.) And error was assigned in the matter, to which the Queen's attorney rejoined, in nullo est erratum. 'Which new writ of error, assignment of error, and rejoinder here follow.

    "Elizabeth, by the grace of God of England, France, and Ireland Queen, defender of the faith, etc. To her very beloved and faithful counsellors Thomas Bromley, Knight, Lord Chancellor of England, and William Lord Burghley, Treasurer of1 England, greeting. Because in the record and process, and also in giving judgment of the plaint of a certain information which was in our Court before the Barons of our Exchequer, against Thomas Walsingham, Knight, by the name of Thomas Walsingham, Esquire, and John Gillibrand, in the term of St. Hillary, in the 11th year of our reign, by Gilbert Gerard, Esquire, our Attorney-General, for us in the same Court exhibited, by which he gave the Court there to understand and be informed, that whereas one messuage or tenement called the Curtelage of East Peckham, otherwise called Great Peekham, 120 acres of land, 16 acres of meadow, 30 acres of wood, with the appurtenances in East Peckham aforesaid, in the county of Kent, late in the several occupations of Anthony Weldon, Esquire, Thomas Cocks, and others, and one meadow, called Multon-mead, in East Peckham aforesaid, late parcel of the lands and possessions of Thomas Wyat, Knight, of high treason attainted, the 17th day of November, in the first year of our reign, and long before, and always afterwards in our hands and possession were, and of right ought to be, by reason of the attainder aforesaid, in right of our Crown of England, as in many records, rolls, and remembrances of the said Exchequer more fully appeared of record, nevertheless the said Thomas Walsingham and John Gillibrand, our laws not fearing, but our disinheritance intending and contriving, with force and arms, etc. in and upon our possession of the premisses entered, intruded, and made ingress, and the issues and profits thereof arising to their own proper uses perceived and had, that trespass from the same 17th day of November, unto the exhibiting the information aforesaid and afterwards continuing, in contempt of us, and against our laws, wherefore our attorney aforesaid for us prayed the advice of our Court of Exchequer aforesaid in the premisses, and that the aforesaid Thomas Walsingham and John Gillibrand" might come to our Court of Exchequer aforesaid to answer us in the premisses, as it is said, error manifest bath intervened, to the great damage of the said Thomas Walsingham and John Gillibrand, as by their complaint we are informed: and whereas in a statute made in a Parliament of Lord Edward late King of England the Third, our progenitor, at Westminster, in the 31st year of his reign held, among other things it was agreed and established, that in all cases touching the King or other persons, where a man complains of error done in the Exchequer, the Chancellor and Treasurer shall cause to come before them in any Chamber of Council nigh the Exchequer the record of the process out of the Exchequer, taking to them the justices and other sage persons, such as to them seemeth to be taken, and shall also call before them the Barons of the Exchequer aforesaid to hear their informations, and the causes of their judgments, and thereupon shall duly examine the business, and if any error be found they shall correct the same, and amend the rolls, and afterwards send them back into the said Exchequer, that execution thereof may be done as appertaineth, as in the statute aforesaid more fully is contained : we therefore being willing that the error, if there be any, should be corrected according to the form of the statute aforesaid, and that full and speedy justice be done to the parties aforesaid in the premisses, command you, that if judgment be thereupon given, then the record and process aforesaid, with all things concerning them, before you the aforesaid Chancellor and Treasurer in the Chamber of Council nigh the Exchequer aforesaid, called the Council-Chamber, on Tuesday, the 19th day of this instant month of May, you cause to come, to the end that you the aforesaid Chancellor and Treasurer having seen and examined the record and the process aforesaid, and having heard the informations of our aforesaid Barons of our Exchequer aforesaid, further in that behalf, by the advice of the justices and such other sage persons, you may cause to be done what of right, and according to the form of the statute aforesaid ought to be done. Witness ourself at West-minster, the 1st day of May, in the 21st year of our reign."

    Assignment of error.--" At which said 19th day of May, before the aforesaid Chancellor and Treasurer in the Chamber, etc. came the aforesaid Thomas Walsingham and John Gillibrand in their proper persons, and immediately say, that in the record and process aforesaid, and in giving the judgment aforesaid, it is manifestly erred in this, viz. that whereas they the aforesaid Thomas Walsingham and John Gillibrand in the same Court pleaded a sufficient plea in bar of the information aforesaid, as in the aforesaid record appears, to which said bar the aforesaid attorney of the said lady the Queen for the same lady the Queen in the same Court insufficiently replied, in manner and form as also above in the same record is mentioned, upon which said replication they the aforesaid Thomas Walsingham and John Gillibrand demurred in law, and that notwithstanding, it was adjudged by the Barons aforesaid, that they the said Thomas Walsingham and John Gillibrand, of the intrusion, trespass, and contempt in the information aforesaid should be convicted. By reason whereof, and of other errors in the record aforesaid appearing, they the same Thomas Walsinghan and John Gillibrand pray that the judgment aforesaid may be reversed and wholly annulled." GAWDY.

    Rejoinder in nullo est erratum.-" And the aforesaid attorney of the said lady the Queen says, that in the record and process aforesaid, and in giving the judgment aforesaid, it is in nothing erred. And he prays for the same lady the Queen that the Court of the lady the Queen here may proceed to the examination as well of the record and process as of the matter aforesaid above assigned for errors, and thai; the aforesaid judgment in all things may be affirmed." G. GERARD.

    And it was prayed on behalf of the plaintiffs in error, that the first record might be amended in the averment that Wyat had issue, and that the Queen's attorney might confess it by the replication, so that by that means it might be effectually shewn that Wyat had issue alive. And thereupon a day was given over until the last Saturday in Easter term, in the 21st year of the reign of Queen Elizabeth. At which day answer was given by the Queen's attorney that he would not amend the record, but that it should stand as it was.

    Judgment affirmed.-And then the said Lord Chancellor said, we have taken the record into consideration, and have conferred with all the Justices of the King's Bench, and with Sir Roger Manwood, now Lord Chief Baron, who knows the opinions of his companions, and we are all agreed to affirm the judgment below. And therefore he ordered Fanshaw, the Queen's remembrancer, to enter the judgment accordingly. And the apprentice desired of the Lord Chancellor and of the Lord Treasurer to know the cause of their judgment, viz. whether it was upon the matter in law, or for the insufficiency of the averment that Wyat had issue, or for both, but they would not shew the reasons thereof; and the Lord Treasurer said that they themselves knew the cause thereof well enough, but that it was not necessary for them to shew it openly. Wherefore judgment was given, which was entered as follows.

    The rest of the record. Judgment.-At which day, in the aforesaid Council-Chamber at Westminster, came the aforesaid Lord Chancellor and Lord Treasurer, etc. And as well the aforesaid Gilbert Gerard, Attorney-General, etc. as the aforesaid Thomas Walsingham and John Gillibrand, before the same Chancellor and Treasurer in their proper persons likewise came. Whereupon the aforesaid Chancellor and Treasurer having seen and diligently examined, and more fully understood, as well the record and process aforesaid, as the matter aforesaid above assigned for error, and having heard the informations of the aforesaid Barons of the lady the Queen of her Exchequer aforesaid, and having taken to their counsel in this behalf the justices and other sage persons, and having had mature deliberation thereon, for that it seems to the same Chancellor and Treasurer, that in the said record and process, and in giving the judgment aforesaid, it is in nothing erred, it is considered that the judgment aforesaid in all things be affirmed, and stand in all its force and effect, the said cause or matter above assigned for error in any wise notwithstanding, etc.

    Nota bene.-And afterwards I heard that the Lord Chancellor, and the Lord Treasurer, and the Justices of the King's Bench, and the Barons, unanimously agreed, that the averment in the Bar, that Wyat who was attainted had issue alive, was not effectually shewn, and that it was of no more weight than if it had not been shewn at all. [113] But it is said that they did not all unanimously agree in their opinions upon the matter in law.

Note 1   See Heath's Max. 169. post 564.    [Back]

Note 2   Here is a chasm in the record.    [Back]

Note 3   See ante 387.    [Back]

Note 4   See ante 387, 388.    [Back]

Note 5   Vide Godb. 314. post 562 agreed.    [Back]

Note 6   See ante 213 (i) and the books there cited.    [Back]

Note 7   S. P. 32 H. 8. Bro. Discontinuance de Possession 32. 33 H. 8. Bro Recovery in Value 31. Tayle 41. Assurance 6. B. N. C. § 145, 177, 224. Dy 32. pl. 1. Co. Lit. 335. a. 372. b. Cro. Car. 430. Pig. On Recov. 85, 86, 87.    [Back]

Note 8   11 Co. 39. b. post 554 (i). T. Raym. 347. 348. But now by the statute of 34 & 35 H. 8. cap. 20. such recovery shall not bind the issue in tail.    [Back]

Note 9   M. 25 Ed. 3. 48. Fitz. Resceipt 28. ante 241 (f) and (h).    [Back]

Note 10   See ante 241 (g), and the books there cited.    [Back]

Note 11   S. P. Co. Litt. 241. a. 354. b. 2 Co. 53. a. 1 Rol. R. 214. Pig. on Recov. 87. As if a disseizor makes a lease for life, the remainder to the King, and the disseisee recovers against the tenant for life, the King's remainder shall be thereby devested.    [Back]

Note 12   See the like point upon the same ground, ante 489 (g).    [Back]

Note 13   See like point Nichols v. Nichols, ante 489, where A. made a lease for life to B. upon condition that if the lessor died without issue , and there it was held by some of the Judges, that admitting that the reversion was actually vested in the King by the attainder, yet when the lessor died without issue, at which time the condition was performed, the lessee should have the fee, and the reversion should be devested out of the King by operation of law by force of the condition, without monstrans de droit, or other matter of record.    [Back]

Note 14   Co. Litt. 354. b.    [Back]

Note 15   45 Ass. Pl. 6. Fitz. Garranty 68. Bro. 52. Assets per Descent 31. Prerogative 52. Tayle 34. ante 234 (f)    [Back]

Note 16   Pig. on Recov. 85.    [Back]

Note 17   Vide Co. Litt. 374. b.    [Back]

Note 18   2 Finch 106.    [Back]

Note 19   Vide 2 Rol. R. 322. post 563.    [Back]

Note 20   Litt. § 650. 3 Co. 84. b. Litt. R. 122, 322. Cart. 210. See post 556 (b), 561 (c).    [Back]

Note 21   See post 556 (f).    [Back]

Note 22   Ante 25 (o), and see the books there cited.    [Back]

Note 23   Ante 237 (b), and see the books there cited.    [Back]

Note 24   Ante 553 (b), and (c) and the books there cited.    [Back]

Note 25   Cro. C. 430. post 558 (f).    [Back]

Note 26   Post 558 (g).    [Back]

Note 27   S. P. Bacon's Read. On Statute of Uses, 347.    [Back]

Note 28   24 H. 8. Bro. Feoffments al Uses 40. B. N. § 60. Co. Litt. 19. b. 2 Co. 78. a. 2 Rol. Abr. 780. C. pl. 2,3. 2 And. 87, 136. 1 Rol. R. 333, 385. 3 Bulst. 184. 186. 3 Leon. 190. Jenk. Cent. 195. pl. 1. Glib. Law of Uses, 11. 205, 206. Vin. Abr. tit. Uses C. pl. 2,3, in marriage.    [Back]

Note 29   M. 15 Ed. 4.8. Contra post 557 (d).    [Back]

Note 30   Co. Litt. 18. a. 1 Keb. 407, 408. Cro. Car. 430. Ld. Raym. 779. Vide 2 Rol. Abr. 735. H. pl. 2. post 557 (b).    [Back]

Note 31   Post 561 (d), per Curiam. 562, arguendo.    [Back]

Note 32   Post 561 (b), per Curiam 562, agreed.    [Back]

Note 33   Post 562 (c).    [Back]

Note 34   Litt. § 650.    [Back]

Note 35   So is it also denied post 561 (c), per Curiam. 5563 (e), arguendo. See the same impeached, Hob. 339. Hetl 156. 2 Rol. R. 506.    [Back]

Note 36   See ante 25 (o), and the books there cited.    [Back]

Note 37   Litt. § 606. Bro. Releases 82. 3 Co. 84. b. ante 161 (g).    [Back]

Note 38   Litt. § 612. Cart. 210.    [Back]

Note 39   Litt. § 650. ante 554 (f).    [Back]

Note 40   Vide 3 Co. 84. b.    [Back]

Note 41   M. 42 Ed. 3. 23. pl. 7. Fitz. Wast 73.    [Back]

Note 42   S. P. Co. Litt. 239. a. 1 Co. 140. b. 10 Co. 98. a. 1 Bulst. 135. 1 Finch 102. post 562.    [Back]

Note 43   Litt. § 739.    [Back]

Note 44   M. 22 Ed. 3. 19. b. per Shard. 1 Bulst. 135, 136. 2 Bac. Abr. 125.    [Back]

Note 45   Co. Litt. 41. b. 54. a. 6 Co. 37. b. 10 Co. 98. a. 2 Inst. 301. 2 Rol. Abr. 826. pl. 3.    [Back]

Note 46   27 Ass. Pl. 31. Fitz. Bar. 303. Bro. Assize 272.    [Back]

Note 47   H. 11 H. 4. 42. Fitz. Counterplea de Resceit 3. Bro. Resceit. 38.    [Back]

Note 48   Vide ante 555 (g).    [Back]

Note 49   2 Rol. Abr. 735. H. pl. 2.    [Back]

Note 50   M. 15 Ed. 4. 8. ante 555 (f).    [Back]

Note 51   Vide Co. Litt. 1 P. Wms. 74, 75. Ld. Raymond 1148. 1st fee-simple absolute.    [Back]

Note 52   Litt. § 1.    [Back]

Note 53   Ld. Raym. 1148. 1 P. Wms. 74, 75.    [Back]

Note 54   Ld. Raym. 1148. So if it be limited as long as such a tree shall grow, M. 27 H. 8. 29. pl. 20. 11 Co. 49. a. 1 Rol. R. 101. Hardr. 149.    [Back]

Note 55   Cro. C. 430.    [Back]

Note 56   2 Bac. Abr. 125.    [Back]

Note 57   S. P. 10 Co. 96. a. Seymour's case.    [Back]

Note 58   40 Ass. pl. 36. post 559 (b).    [Back]

Note 59   29 Ass. pl. 61. Bridgm. 27. Strange 337.    [Back]

Note 60   Co. Litt. 391. b.    [Back]

Note 61   3 Bac. Abr. 19.    [Back]

Note 62   Ibid.    [Back]

Note 63   Co. Litt. 41. b.    [Back]

Note 64   Litt. R. 322. 3 Bac. Abr. 19. Vide Comy. 220. Strange 362.    [Back]

Note 65   Ante 555 b.    [Back]

Note 66   Ante 555 (c).    [Back]

Note 67   Post 561 (a), per Curiam.    [Back]

Note 68   P. 18 Ed. 3. 12. pl. 2.    [Back]

Note 69   21 Ass. pl. 15. 1 Co. 44. a.    [Back]

Note 70   40. Ass. pl. 36. Bro. Alienation 13. Discontinuance de Possession, 16. Tayle 41.    [Back]

Note 71   Ante 557 (1).    [Back]

Note 72   S. P. Hardr. 25.    [Back]

Note 73   Vide 2 Rol. R. 322. 3 Bac. Abr. 316. Hob. 345, 346.    [Back]

Note 74   Vide Godb. 324.    [Back]

Note 75   Co. Litt. 18. a.    [Back]

Note 76   Ante 248 (b), and see the books there cited.    [Back]

Note 77   T. 9 Ed. 4. 24 b. per Littleton. Fitz. Discontinuance 28. Bro. 24. Litt. para 625. Dy. 10. pl. 32. 12. pl. 54. Plowd. Quaere. para 342. Mich. 33 Geo. 2. B. R. Hurst v. The Earl of Winchelsea, per Lord Mansfield, C.J.    [Back]

Note 78   Post 562 (b).    [Back]

Note 79   S. P. Godb. 311. 1 H. H. P. C. 254. Salk. 338. 3 Bac. Abr. 316. Vide Dy. 107. pl. 6. Plowd. Quner. ? 353.    [Back]

Note 80   See this case Dy. 115. pl. 65. S. C. cited Hob. 324. Godb. 324. 346. Bridgm. 27. 3 Bac. Abr. 316. 2 Rol. R. 491. Plowd. Queer. ? 353.    [Back]

Note 81   Post 565.    [Back]

Note 82   Ante 558, arguendo.    [Back]

Note 83   Ante 558, arguendo. post 562, agreed.    [Back]

Note 84   Litt. para 650. See ante 566 (b), arguendo. post 564 (e), arguendo.    [Back]

Note 85   Ante 555, arguendo. post 562, arguendo.    [Back]

Note 86   Ante, 556, 563, arguendo.    [Back]

Note 87   S. P. Hob. 337. 2 Rol. R. 322. Cro. C. 428. 2 Hawk. P. C. 453, para 24.    [Back]

Note 88   H. 48 Ed. 3. 8. b. Fitz. Avowry 83. Bro. 31. 2 Rol. R. 336, 337. Hob. 337. Cro. C. 428.    [Back]

Note 89   S. P. 1 Finch 241.    [Back]

Note 90   See the case N. Bendl. 260. pl. 272.    [Back]

Note 91   In N. Bendl. 260 (where S. C. is reported) it is said to be Roll 840.    [Back]

Note 92   S. P. ante 235 (d), and see the books there cited.    [Back]

Note 93   Ante 555, arguendo, 561 (b), per Curiam.    [Back]

Note 94   Ante 213 (i).    [Back]

Note 95   Litt. para 625. T. 9 Ed. 4. 24. b. ante 560 (c).    [Back]

Note 96   Ante 555, arguendo.    [Back]

Note 97   Litt. para 380, 381.    [Back]

Note 98   Litt. para 739.    [Back]

Note 99   Litt. para 650.    [Back]

Note 100   Ante 25 (o) and see the books there cited.    [Back]

Note 101   Litt. para 650.    [Back]

Note 102   Ante 556.    [Back]

Note 103   See ante 556 (b). 561 (c) per Curiam.    [Back]

Note 104   P. 18 Ed. 3. 12. pl. 2.    [Back]

Note 105   S. P. 1 Finch 49. 2 Finch 69. Heath's Max. 169.    [Back]

Note 106   Heath's Max. 169.    [Back]

Note 107   See ante 559.    [Back]

Note 108   See ante 560 (d).    [Back]

Note 109   See 1 Co. 47. a. Moor 309. W. Jones 236. Ex hoc nota that a saving in an Act of Parliament, which is repugnant to the body of the Act, is void. Vide Kelw. 174. pl. 4.    [Back]

Note 110   See I Co. 24. b. Palm. 125. Poph. 8. Hardr. 306. 434.    [Back]

Note 111   Davis 2. a. 3 Keb. 236.    [Back]

Note 112   See the case here cited Bro. Testament 26. B. N. C. para 486. Dy. 150. pl. 89. N. Bendl. 49. pl. 88. 1 And. 3. pl. 6. 3 Leon. 29. S. P. Moor 309.    [Back]

Note 113   See Hob. 304.    [Back]


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