burrow tailor ex dismiss atkins esquire vers horde esquire all Tuesday Jan the  limitation of estate by virtue of power must be strict pursue see Ves Ves Cowp  Herne pi cite in Talb vide vin c durn and butler note on   light b n l SC Sm l  c that ed refer to Simpson v Bathurst lr Ch of bar v shey lt weller v stone l  I Ch boyce v Edbrooke Ch in ejectment bring in Michaelmas term by John atkins  Esq in the name of Cyprian tailor against Robert atkins Esq the heir at law  and other upon the general issue plead and issue join thereon and try at the  bar of this court the jury find a special verdict which be in substance as  follow that sir Robert atkins the elder knight of the bath on that June be  among diverse other message land tenement c in Gloucestershire seize in fee of  the manor of low swell and the other premise in question and be so seize make  and execute three several indenture which be set out in the special verdict  one of which be date on the that and the two other on the that of June by one  of these indenture which be date on the that of June which the counsel on both  side for distinction sake call the lesser deed make between sir Edward Atkins  Knt one of the baron of the exchequer sir Robert atkins knight of the bath  solicitor general to the queen and son and heir apparent of the say sir Edward  and dame mary wife of the say sir Robert atkins of the one part and sir Edward  Carteret Knt and John low gentleman of the other part it be witness that in  consideration of a marriage thentofore have and solemnized between the say sir  Robert atkins and dame mary his wife and of her release and acquit a former  jointure to her make before marriage and of a new provision to he have and  make for her the say dame mary for and in the nature of a jointure in bar and  recompense of her dower and three at the commonlaw in case she shall happen to  survive and overlive the say sir Robert Atkins her husband and he the say sir  Robert atkins do thereby covenant and grant to and with the say sir Edward  Carteret and John low that he the say sir Edward atkins the say sir Robert  atkins and dame mary his wife shall and will before the end of Michaelmas term  then next ensue levy and acknowledge before the justice of the court of common  plea at Westminster one or more fine or fine sur conusance de law come Ceo c  unto the say sir Edward Carteret and John low with proclamation of the say  manor of low swell and the other premise in question which say fine or a it do  not appear what the action be if it be assumpsit it seem that tender ought to  have be plead with tout temps priest which be inconsistent with the order for  time and accord to strange the money ought to be pay into court or else it be  no plea and the plaintiff may sign judgement on a certificate that no money be  pay in but the authority of that case appear by the N B there to be doubtful  but without rely on that the law seem to have be general hold that a plea of  tender after a imparlance be bad comens and though Mod be there refer to for a  admission that it be good toa bind though in no other case yet the reason of  it there be because it be to save the penalty which reason do not now subsist  since by the statute a court of law will relieve the defendant on payment of  principal and interest and therefore if that be law before vet to be remiss  ration c it be not so now and if a tender be not pleadable after imparlance  there be the same reason why it shall not after a order for time which be the  reason give by the court for not allow it in barn cite by Mr aspinall especial  after so long time give as in this case burrow er p fine so as aforesaid or in  any other sort to be have levy and execute of the say manor and premise alone  or together with any other land tenement or hereditament by or between the  party to the say indenture or any of they alone or burrow together with any  other person or person be to be and enure and be thereby declare to be and  enure as to the say manor and all other the premise to the use of the say sir  Robert atkins for life without impeachment of waste and from and after his  decease to the use of the say dame mary for life for her jointure and in bar  of her dower and from and after the decease of the say sir Robert and dame  mary to the use of sir Robert atkins Knt son and heir apparent of the say sir  Robert and the heir male of the body of the say sir Robert the son on the body  of lovis Carteret his intend wife lawful to be beget and for default of such  issue to the use of the right heir of the say sir Robert the father for ever  and the say sir Edward atkins and sir Robert the father do by this deed  covenant with the say sir Edward Carteret and John low and their heir that in  case any defect shall happen in the say fine and that assurance or in case  there shall not be some good conveyance in the law make accord to the intent  of that indenture so that by reason of such defect or failure of such  conveyance and assurance in law the say manor and premise or any part or  parcel of they shall not before the thirty day of November then next ensue be  sufficient convey accord to the intent of the say indenture then they the say  sir Edward Carteret and John low and their heir and all and every other person  and person and their heir stand or be seize or which shall stand or be seize  of and in the say manor and premise shall and will from time to time and at  all time from thenceforth for ever stand and be seize of and in the say manor  and premise or so much and such part and part thereof whereof or concern which  any such defect shall happen to be to the use behoofs intent and purpose  therein before declare limit and contain accord to the true intent and meaning  of the say indenture and to none other use intent or purpose whatsoever one  other of these three indenture be a lease date eleventh June and the remain  one be a release date that June this release bear the very same date with the  deed already recite call the lesser deed and the counsel on both side agree in  call this deed of release for distinction sake the great deed as this contain  the settlement of the whole estate by these indenture of lease and release  date eleventh and that June the release be tripartite and make between the say  sir Edward atkins the say sir Robert the father and dame mary his wife Philip  Sheppard Esq sir clement Farnham Knt and Edward atkins Esq burrow second son  of the say sir Edward atkins of the first part the right honourable sir George  Carteret Knt and Bart vicechamberlain of his majesty household and one of his  majesty most honourable privycouncil the say sir Edward Carteret and the say  John low the right honourable Edward Montagu common call Lord Hinchinbrooke  son and heir apparent of the right honourable the earl of Sandwich sir Philip  Carteret Knt son and heir apparent of the say sir George Carteret and Edward  swift Esq of the second part and the say sir Robert atkins Knt the son and  heir apparent of the say sir Robert atkins and lovis Carteret one of the  daughter of the say sir George Carteret and of dame Elizabeth his wife of the  three part it be witness that in consideration of a marriage thentofore have  and solemnized between the say sir Robert atkins the father and dame mary his  wife and also of a marriage then short to he have and solemnized between the  say sir Robert atkins the son and the say lovis Carteret and of the sum of pay  to sir Robert the father by the say sir George Carteret for the marriage  portion of the say lovis Carteret and of S apiece to the say sir Edward atkins  sir Robert atkins the father Philip Sheppard sir clement Farnham and Edward  atkins pay by the say sir Edward Carteret and John low and for a provision to  he have and make to and for the say dame mary wife of the say sir Robert  atkins the father for and in the nature of a jointure in bar and recompense of  her dower and three at the commonlaw and also for a provision for the say  lovis Carteret for and in nature of a jointure in bar and recompense of her  dower and three at the commonlaw and for settle all the manor land tenement  and hereditament therein after mention to the several and respective use upon  the trust to the intent and purpose and with under and subject to the proviso  declaration limitation and agreement therein burrow er p after declare the say  sir Edward atkins and sir Robert the father do grant release and confirm unto  the say sir Edward Carteret and John low and their heir the say manor of swell  and other the premise in question as describe in the lesser deed and several  other manor land and hereditament therein mention to hold the say manor of  swell and other the premise in question to the say sir Edward Carteret and  John low and their heir to the several use therein mention which use as to the  say manor of swell and other the premise in question be the same as those  before set forth in the lesser deed videlicet to the use of sir Robert the  father for life without impeachment of waste burrow remainder as to the say  premise except timbertrees to dame mary for life for her jointure and in bar  of dower remainder to sir Robert the son and the heir male of his body by the  say lovis Carteret remainder to the right heir of sir Robert the father and  several other part of the estate be limit thereby to sir Robert the son for  life remainder to the trustee to preserve contingent remainder remainder to  the say lovis Carteret for life for her jointure and in bar of dower and upon  the issue of the say intend marriage in strict settlement in which indenture  of release be contain a proviso in the follow word provide always that it  shall and may be lawful to and for the say sir Robert atkins the father the  say sir Robert atkins the son and the say lovis Carteret respective when they  be or shall be respective seize in possession of the freehold of such of the  premise as by virtue of and accord to the limitation aforesaid be respective  limit to they for their respective life by their respective deed or deed in  write seal and deliver in the presence of two or more credible witness to make  any lease or demise lease or demise of all or any part of the say premise  whereof they shall be so respective seize in possession for life as aforesaid  except of the capital message of Sapperton aforesaid and the say lodge in  Pinbury park aforesaid unto any person or person for one two or three life in  possession reversion or remainder or for any term or term of year in  possession reversion or remainder a to end or determine upon the death of one  two or three person or for the term of year absolute so as there be not in the  respective premise or any part thereof any estate exceed the term or time of  three life or twentyone year in be at the same time and so as such respective  lease be not make without impeachment of waste and so as the usual rend of  such of the premise respective as shall be so lease or demise upon fine and  the best rend that can be reasonable get for such of the premise respective as  shall be so lease or demise without fine be respective reserve upon every such  respective lease or lease demise or demise to be Payable during the respective  term in the say respective lease or demise to be contain any thing herein  before contain to the contrary notwithstanding burrow and another proviso be  therein also contain in the follow word videlicet provide also that it shall  and may be lawful to and for the say sir Robert atkins the father at any time  or time during his natural life after the decease of the say dame mary his  wife by any write or write indent under his hand and seal testify by two or  more witness to grant assign limit or appoint the say manor of swell inferior  alias Nether swell and the land tenement and premise in swell inferior  otherwise Nether swell Upper swell and stow in the will and in either or any  of they or such part and parcel thereof as he shall think fit unto or to the  use of such woman or woman as he the say sir Robert atkins the father shall  marry or take to wife after the decease of the say dame mary his now wife for  and during the term of the natural life or life of such wife or wife only for  her or their jointure or jointure any thing herein contain to the contrary  thereof in any wise notwithstanding and by another proviso in this deed the  like power be give to sir Robert the a these word introduce within bracket and  distinguish by italic be copy from the print cage send to the house of lord  and at the time this case be determine and until the judgement in burr be  general take to be material burrow er p son to make a jointure of all or any  of the land thereby limit to lovis Carteret for her jointure on a that future  wife or wife who he shall marry after the death of the say lovis Carteret  without issue and by the same deed sir Robert the father covenant with sir  George Carteret that sir Edward atkins he and dame mary his wife will before  the end of Michaelmas term then next levy one or more fine or fine sur  conusance de law c with proclamation of the premise contain in this indenture  unto the say sir Edward Carteret and John low which it be thereby declare  shall be and enure to the several and respective use upon the trust and to the  intent and purpose and with under and subject to the proviso declaration and  agreement therein before declare limit and express concern the same and recite  that sir clement Farnham and Edward atkins be possess of the premise in  question or several part thereof for several term of year then in be in trust  for sir Robert the father it be thereby declare and agree by sir Robert the  father that sir Charles Farnham and Edward atkins shall stand possess of the  premise comprise in the say term during the residue thereof upon trust and to  the use and benefit of the person and person to who the premise by virtue of  the limitation therein shall belong burrow the jury find that the first of the  say indenture be execute by sir Edward atkins sir Robert atkins the father and  dame mary his wife and John low the second of the say indenture be execute by  sir Edward atkins sir Robert the father Philip Sheppard sir clement Farnham  and Edward atkins Esq and the say indenture of release by sir Edward atkins  sir Robert the father dame mary his wife sir clement Farnham Edward atkins Esq  sir George Carteret sir Philip Carteret Edward swift sir Robert atkins the son  and lovis Carteret and that the lease for a year be execute before the release  that in Trinity term a fine be levy wherein the say sir Edward Carteret and  John low be plaintiff and the say sir Edward atkins sir Robert the father and  dame mary his wife deforciants of the premise in question among the say other  land contain in the great deed but no fine be ever levy of the land contain in  the little deed only afterward on the that of July sir Robert the son be marry  to the say lovis Carteret dame mary the wife of sir Robert the father die on d  march after which videlicet on that April sir Robert the father be seize of  the premise in question as of freehold for the term of his natural life  without impeachment of waste and be then on the point of marry a second wife  mrs Ann Dacres duly execute a indenture under his hand and seal attest by  three witness bear date the same that of April and make between himself of the  one part and sir Robert Dacres Knt John Dacres and Ann Dacres spinster sister  of sir Robert Dacres and John Dacres of the other part by which indenture  after recite the above mention indenture of release tripartite of the that of  June and the power thereby reserve for the say sir Robert atkins the father  after the death of dame mary to limit all or any part of the manor and premise  in question to any future wife or wife he shall happen to marry for the term  of the natural life or life of such wife or wife only for her or their  jointure or jointure it be witness that in consideration of the then intend  marriage between the say sir Robert atkins the father and the say Ann Dacres  and of her marriageportion the say sir Robert atkins the father in pursuance  of the say power to he reserve and of all and every power and authority  whatsoever do grant assign burrow limit and appoint the say manor of swell and  other the premise in question unto the say Ann Dacres for and during the term  of her natural life for her jointure and in bar and recompense of her dower  and three at the commonlaw on that April the say sir Robert atkins the father  marry the say Ann Dacres on first may sir Robert atkins the father be seize of  the premise in question as of freehold for life without impeachment of waste  execute a indenture of lease under his hand and seal attest by three witness  date on the same first day of may and make between himself of the one part and  Thomas Dacres Esq Robert Dacres gentle and John Dacres gentle the three son of  the before name burrow er p sir Robert Dacres Knt and nephew of dame Ann  atkins then wife of sir Robert atkins the father of the other part this  indenture of lease recite the indenture tripartite of release of the that of  June whereby sir Edward atkins and sir Robert atkins the father do among other  land grant release and confirm to the say sir Edward Carteret and John low and  their heir S the say manor of swell inferior otherwise Nether swell with the  appurtenance and all those rend of assize of the free tenant of the say manor  extend to one halfpennyand one pound of pepper and all the rend of customary  tenant of the say manor and the capital message and farm of the bold and the  park call swell park otherwise abbot wood and all and all manner of ten or  tithe of the say park and the barcary or sheephouse call Gannow and the ground  or close of meadow or pasture adjoin or belong thereto and the watermill call  bold mill with the dam stream water attachment fender soak suit mulcture grist  and appurtenance thereunto belong all the tolns of the customary tenant of the  say manor and all and all manner of ten and tithe of all the premise  whatsoever which unto the late dissolve monastery of hale do belong all that  common of pasture for sheep and twenty beast upon the bill and field of Nether  swell at all time in the year except in the open time and in the open time  common of pasture within the say field for all manner of beast without number  rate or stint and the several pasture call Murden Leasows all that barcary or  sheephouse within the say pasture all that pasturage or feed for sheep or for  more or less at the will and pleasure of the tenant of the say pasture call  Murden Leasows for the time be in and upon the demesne land waste land and  other land belong to the say farm of the bold or elsewhere in such ample  manner as the late abbot of the say dissolve monastery of hale aforesaid and  his predecessor have keep and occupy the burrow same within the manor of swell  aforesaid all those ground in Nether swell aforesaid theretofore in the tenure  of John Winsmore or his assign all that half acre of land in Nether swell  sometime in the tenure of the curate of the church of stow in the say county  of Gloucester all that fish of the river or water of the whole manor of Nether  swell with all profit and commodity to the same belong all those portion of  tithe whatsoever and all and all manner of tithe of corn grain blade sheaf hay  wool lamb pasture and other ten and tithe whatsoever in and upon the premise  or any part of they grow renew or increase be the premise in question to the  several use by the say indenture limit as aforesaid and it also recite the  power to the say sir Robert atkins the father for lease the premise as it be  set forth in the say indenture then it be witness by this indenture of lease  that the say sir Robert atkins the father in consideration of the rend thereby  reserve in pursuance of the power to he reserve in and by the say recite  indenture and by virtue thereof and of all and every power and authority  whatsoever do by that his present write indent under his hand and seal testify  by the several witness who name be thereupon endorse demise lease grant and to  farm let to the say Thomas Dacres Robert Dacres and John Dacres and their  assign the say manor and all and singular the say land tithe tenement  hereditament and premise with their and every of their right member and  appurtenance in swell inferior otherwise Nether swell and all and every the  rend reserve upon any lease or grant to hold to they the say Thomas Robert and  John Dacres from the make thereof for and during the natural life of they the  say Thomas Robert and John Dacres and the life of the long liver of they yield  and pay therefore during the say term unto the say sir Robert atkins party  thereto and after his decease to such person or person respective to who the  say manor and premise be limit accord to their respective estate and title the  yearly rend of three hundred and threescore pound at Michaelmas and ladyday by  oven and equal portion in which say indenture of lease be contain a clause in  these word videlicet the true intent and meaning of this estate or term for  life so hereby grant and make to the say Thomas Dacres Robert Dacres and John  Dacres and the survivor of they be to preserve the say remainder so limit in  the premise by the say recite indenture to the right heir of the say sir  Robert atkins party to these present deleatur word nephew and note that all  the lessee be then much under the age of year burrow er p and to such person  or person to who the say sir Robert atkins party to these present shall any  way dispose of the same from be bar by any recovery to be suffer or by any  other act to be attempt or do for the bar of the same burrow on that June John  Dacres one of the lessee in the last abovementioned indenture of lease alone  execute a letter of attorney under his hand and seal recite the say last  indenture of lease and empower and authorize Thomas Barker gentle as his  attorney to take livery and seize of the premise last abovementioned from the  say sir Robert atkins the father for himself the say John Dacres and for the  say Thomas and Robert Dacres and every of they in their name and for the use  accord to the purport and true meaning of the say recite indenture of lease  and to enter and take possession of the say manor and premise in the say  indenture contain to the use of they and every of they he the say John Dacres  allow of all and every the act and act so do by the say attorney to be as  effectual and sufficient in law a if he have be personal present and have do  the same on that July sir Robert atkins the father be so seize as aforesaid  and then in the actual possession of the say manor and premise do in his own  person deliver seize and possession thereof unto the say Thomas Barker to the  use of the say Thomas Robert and John Dacres and of every of they and of the  survivor of they accord to the purport and true meaning of the say indenture  he the say Thomas Barker be authorize and appoint by a letter of attorney  under hand and seal of the say John Dacres and by he duly execute for he and  to his use and in his name and for the say Thomas and Robert Dacres and their  use and in every of their name to take and receive the say livery and  possession of the say capital message manor and premise accord as by a  endorsement on the say letter of attorney which be set out in the verdict  appear but the jury find that the say Thomas Dacres Robert Dacres and John  Dacres the lessee name in the last mention indenture or either of they never  be in possession of the premise in question otherwise than by the say livery  and seize so give by the say sir Robert atkins the father as aforesaid and  that they or either of they do not receive or pay any rend for or in respect  of the say premise and that the say indenture of lease be not find in the  custody of Thomas Dacres the survive lessee at the time of his death on that  may sir Robert atkins the father be so seize of the say premise and of the  remainder and reversion thereof as aforesaid make his will date the same that  day of may attest by four witness and thereby confirm his wife jointure and  then recite burrow that he be seize of the remainder and reversion in fee of  the say manor and other the premise in question and that such remainder or  reversion after the death of his wife be also further expectant upon a estate  in special tail settle upon his son sir Robert upon his marriage by the  abovementioned deed of that June and that he have make a lease to the say  Thomas Robert and John Dacres for their life and the life of the long liver of  they accord to the power he have reserve to himself upon the say settlement  after which recital he dispose of his say remainder or reversion in fee and  the benefit of the trust of the say lease to the lessor of the plaintiff in  tail male the whole devise be in the follow words  viz give and confirm unto  my say wife dame Ann atkins all those land tenement and hereditament in low  swell aforesaid which be settle upon her for her jointure before our marriage  and I hereby further give and devise to her for term of her life my manor of  low swell and all the rest of my land tenement and hereditament whatsoever in  low swell aforesaid for term of her life as a addition to her jointure and  whereas I be seize of the remainder and reversion in fee of the say manor of  low swell and of the rest of the say land tenement and hereditament in low  swell so settle and by this my will give and confirm to my say wife for her  life which remainder or reversion after the death of my wife be also further  expectant upon a estate in the say manor and land in special tail settle upon  my son sir Robert atkins upon his marriage by deed date the that of June and  upon his son by his now wife and no other wife and whereas I have make a lease  date the that day of June in the year of on Lord execute by livery and seize  to Thomas Dacres Esq and to Robert and John the testator mistake the date of  this lease it be first may v ante p burrow er p Dacres gentleman for the life  of the say Thomas Robert and John Dacres and the life of the long liver of  they accord to a power I reserve to myself upon the say settlement make upon  the marriage of my say son sir Robert atkins now I give and devise the say  remainder or reversion and the benefit of the trust of the say lease for life  to my grandson John Tracy the now young and second son live of my soninlaw  John Tracy of Stanway in the say county of Gloucester Esq by my daughter Ann  Tracy his wife and to the heir male of the body of my say grandson by he to be  beget and if my say grandson happen to die without issue male then give and  devise the say remainder or reversion to the next young son of the say John  Tracy my soninlaw call Ferdinando Tracy and to the heir male of the body  burrow of the say Ferdinando and for default of such issue then give and  devise the say remainder or reversion to the next young son my say soninlaw  John Tracy may happen to have by my say daughter and to the heir male of the  body of such next young son and so on to other still young son c these devise  be all upon condition that the say son respective so inherit the say manor and  land shall constant use to call and write themselves by the name of atkins  only for their surname and by no other surname and then the will proceed thus  I do further give and devise all my house and all land tenement and  hereditament situate lie and be in or near cursitor alley in Holborn within  the city of London or the suburb thereof or within the county of Middlesex or  in either of they in like manner and upon the like condition c and recite that  the reversion or remainder of his manor and land in and of Sapperton aforesaid  and of the advowson of the church of Sapperton and of and in his manor of  Pinbury and of the land thereto belong as also of PinburyPark be in he and his  heir and also of the seven hundred of Cirencester and of the hundred of Bisley  all in the say county of Gloucester he devise the same in the like manner the  word of his will be these I have also make a lease for life of the say manor  of Sapperton and Pinbury and of the say advowson of Sapperton and of the say  PinburyPark and of all the say several hundred the better to preserve and  support the say remainder and reversion from be cut off or bar by any recovery  and if my say young grandson happen to die without issue male then give and  devise the same reversion and remainder to my nephew Richard atkins old son of  my late brother sir Edward atkins decease and to his heir on the that February  sir Robert atkins the father die seize of the premise in question upon his  death dame Ann his widow and relict enter thereupon claim the same for her  life for her jointure under and by virtue of the abovementioned indenture of  the that April and be in possession thereof the jury then find a indenture  tripartite date the that of may make between Richard atkins Esq old son and  executor of sir Edward atkins the survive trustee in who the term for year  mention in the great deed be vest on the first part Joseph walker gentle on  the d part and the say sir Robert atkins the son on the d part by which after  recite the indenture of release of that June and that it be therein mention  that sir clement Farnham and Edward burrow atkins be possess of several term  for year in the Premises in question and that they be to stand possess thereof  in trust for such person and person to who use and use the same be limit by  the say indenture and recite that the say sir Robert atkins the son then claim  the say manor and premise by and under the say indenture and that sir clement  Farnham be dead and the say Edward atkins afterward sir Edward atkins Knt Lord  Ch baron of the exchequer survive he and be also then dead have first make his  will and the say Richard atkins executor thereof and that he have prove the  same the say Richard atkins at the instance and request of the say sir Robert  atkins the son testify by his execute the say indenture and in consideration  of S pay to he by the say Joseph walker assign over the say manor and premise  in question to the say Joseph walker to hold to he his executor administrator  and assign for all the then residue and remainder of the term whereof the say  sir clement Farnham and Edward atkins or either of they be possess in trust  for the say sir Robert atkins the son and the heir male of his body by the  beforementioned dame lovis his wife the say premise be so limit in and by the  say indenture burrow er p of release of that June in which say indenture there  be a covenant from sir Robert the son to indemnify the say Richard atkins his  heir executor and administrator against any damage he or they may sustain by  reason of his make the say assignment to the say Joseph walker as aforesaid  the jury further find that dame Ann atkins be so in possession of the premise  as aforesaid in Trinity term Ann a ejectment be bring in the court of common  plea for the recovery of the say premise against her the say dame Ann and the  tenant in possession of the same premise by John Philips upon the several  demise of the say sir Robert atkins the son and of the say Joseph walker in  which ejectment the demise be lie upon the d day of may Ann to hold from the  that day of the same may for seven year and the say ejectment be try at the  bar of the court of common plea in Michaelmas term follow and a general  verdict be find for the plaintiff and judgement be enter up thereupon against  her and the rest of the defendant therein for the say John Philips and he  recover boundary suum preceding and have a to have facias possession the jury  further find that upon this trial the say two indenture call great and lesser  deed of that June be both of they read and give in evidence to the jury but  that the deed of assignment of 18th may be not produce not give in evidence to  the jury burrow they find that soon after the say judgement in ejectment and  during the life of dame Ann sir Robert atkins the son enter into and be in  possession of the premise in question and in the say declaration in ejectment  mention they find that on first January John Philips the say plaintiff in  ejectment surrender the two term mention in the say declaration in ejectment  to be demise to he by the say sir Robert atkins the son and Joseph walker to  the say sir r a the son then in possession of the premise they further find  that on the that January the say sir r a the son be so in possession as  aforesaid and during the lifetime of the say dame Ann atkins widow make a  feoff to James earl of the premise in question in fee by indenture tripartite  of that date make between himself on the first part James earl yeoman on the  second part and John Holmden gentle on the three part which feoff in fee be  therein declare to be for the docking bar and destroy all estate tail use and  use reversion and remainder at any time thentofore make create or limit of and  in the manor and premise in question and for the vest and settle a estate in  feesimple therein to and in the say sir Robert the son sir Robert the son do  therefore in consideration of S thereby grant bargain sell feoff and confirm  unto the say James earl his heir and assign the premise in question to hold to  and to the use of the say James earl his heir and assign for ever to the  intent and purpose that the say James earl may become perfect tenant of the  freehold of the say premise in order for the suffer a common recovery in  Hilary term then next wherein the say John Holmden be to be demandant the say  James earl tenant and sir Robert himself vouchee which recovery it be thereby  declare be to be and enure to the use and behoof of the say sir Robert atkins  the son his heir and assign for ever and to or for no other use intent or  purpose whatsoever and by this same deed sir Robert atkins the son constitute  Edward carter and John Langford his atorneys and attorney either joint or  several to enter upon and take seize and possession of the premise and to give  and deliver seize and possession thereof to the say James earl and his heir  and assign for ever accord to the purport and true meaning and for the purpose  in the say deed mention and the jury find that on that January Edward carter  one of the say atorneys enter upon the premise and give seize and possession  thereof to the say James earl by virtue of the say warrant of attorney burrow  contain in the say indenture as appear by a memorandum endorse upon the say  indenture and find by the verdict they find that in Hilary term that Ann a  recovery be suffer of the premise wherein John Holmden be demandant James earl  tenant and sir Robert atkins the son and lovis his wife vouchees and seize  execute thereon which recovery they find to be prosecute have and execute to  the several use mention in the say deed of feoff and they find that after this  recovery burrow er p sir Robert the son continue in possession of the premise  till the that of November they find the death of the say sir r a the son on  that November without issue male by the say lovis his wife who survive he they  also find that a ejectment be bring for the premise against Robert atkins Esq  and his tenant of the premise in question in Hilary term Ann by John mile as  plaintiff on the several demise both lie to be make on that February Ann which  be five day after sir r a the elder death of dame Ann atkins the jointress and  of Thomas Dacres the survive lessee under the indenture of lease of first may  and in easter term Ann a general verdict be give for the plaintiff on both  demise on a trial at bar in this court and judgement be enter up accord that  the plaintiff do recover his several term aforesaid and the say dame Ann  atkins enter upon the premise in question immediate after this last judgement  and continue in possession thereof till that October when she die soon after  the death of dame Ann the original a defendant Robert atkins Esq nephew and  heir male to sir r a the son and also heir at law to sir r a the father enter  upon the premise and continue in possession thereof till his death which  happen on that march Robert death b be just three month after the now lessor  of the plaintiff actual entry and it be after issue join in this present  ejectment John Dacres one of the lessee in the indenture of lease date first  may die in Robert Dacres another of they die in Thomas Dacres the three of  they survive the other two and die on d July burrow they find that John atkins  the lessor of the plaintiff never be in possession of the premise in question  or any part thereof nor in receipt of the rend and profit thereof or of any  part thereof nor enter thereupon till the that of December when he make a  actual entry into and upon the same claim the same as devisee thereof under  and by virtue of the will of the say air Robert atkins the father and eject  drive out and remove the say Robert atkins Esq Charles Cox Thomas Horde c  therefrom and be seize thereof as the law require and be so seize thereof make  the demise to the say Cyprian tailor the now plaintiff n the that of December  to hold from thence for fifteen year by virtue whereof the say Cyprian tailor  enter on the that and be eject by the defendant on the that and then they  conclude general as usual submit the matter of law to the judgement of the  court upon the above fact this case be argue four several time first on  Tuesday d June by Mr York for the plaintiff and Mr Knowler for the defendant  again on Tuesday that November by Mr Pratt for the plaintiff and Mr Perrot for  the defendant a three time on Tuesday that may by Mr caldecot for the  plaintiff and Mr sergeant prime for the defendant and a four time on Friday  that November by Mr caldecot for the plaintiff and Mr Knowler for the  defendant but it be unnecessary to repeat the three first argument particular  because the last include the general substance of they the sum of what be urge  on the part of the plaintiff be that the lease and jointuring power exist at  the time when they be execute by sir Robert atkins the father that those power  be well execute by he that the lease and jointure a he be one of the defendant  and all the other defendant be as much original defendant as he be but that  the word original be quite improper the reporter have probable read some  equity report and take the epithet original from those report in which it be  proper use where a defendant die and the cause be revive against his  representative there the decease be proper call the original defendant in  contradistinction to his representative who be not original any party to the  suit and so in case at law where proceed may be revive by cognizant fa after a  abatement the word original may be proper use but not in the present case  where there be no new defendant b if Robert have be the sole defendant the  suit will have abate burrow er p make by he in pursuance of those power be a  impediment to his son sir Robert the youngers suffer a common recovery that  even suppose that James earl be a good tenant to the praecipe yet the entry of  dame Ann the jointress within the five year avoid this recovery and consequent  that the remainder or reversion in fee devise to the lessor of the plaintiff  by sir Robert the father be not bar by the recovery thus suffer by sir Robert  the son these point be enter into very large by Mr caldecot and the gentleman  who have speak before he on the same side they first endeavour to prove a that  the power burrow reserve to Sir R a the father by the two deed of that June be  in be and valid at the time of the execution of the lease to the Dacres and  second that they be well execute and consequent that there be estate of  freehold subsist at the time when sir r a the son make the feoff to earl  videlicet dame Ann jointure and the lease to the Dacres and therefore three  they insist that these lifeestates be impediment to sir r a the son suffer the  common recovery they deny that sir Robert atkins the son be tenant in tail in  possession at the time that he make the feoff to James earl so that earl can  not be a good tenant to the praecipe and they urge that even admit that sir r  a the son be tenant in tail in possession yet he can not upon this naked  possession without the freehold make a good tenant to the praecipe without the  jointress and the lessee for life join and that the court can under l g c  presume a previous surrender or conveyance of the estate for life in order to  make the recovery good they further fourthly insist that suppose sir Robert  atkins the son be tenant in tail in possession and also that there be a good  tenant to the praecipe so that the recovery be good as a common conveyance yet  the reentry of dame Ann atkins the jointress within the five year in actual  avoid this recovery which if not void be at least voidable by the tenant for  life and this reentry of the tenant for life revested all the subsequent  estate the great stress of the question lie as they say upon the tenant to the  praecipe the first point in order of time be the validity of the two power  create by the great deed of but there be no ground either for the supposition  of a fact that the lesser deed must have be execute last or for any inference  in point of law that it operate to the extinction of these power the fact  concern the priority of execution of the two deed can now be determine by any  evidence therefore presumption must determine it now one of these deed be a  agreement to execute the other consequent must have be prior to it the lesser  deed covenant the great perform that covenant therefore the lessor be prior if  it have be burrow execute last that will have destroy the very effect of it  and the power raise by it dame mary be give up and exchange her former  jointure and therefore she may desire a single distinct deed to secure her own  interest for which purpose a deed of covenant be the most proper and there be  no need to encumber this lesser deed with the power insert in the great deed  which power do not concern her whereas in order to support a contrary argument  it be necessary to suppose a new agreement without and even against any reason  for it to alter and destroy the former agreement but if the party have mean so  they will have so express it however suppose the lesser deed to have be actual  execute last yet be all to make one position the law will order the time so  that the proper deed shall be take to be anterior and the other subsequent  accord to the reason of the thing and the intent of the party dig case   Rep  Albany case   Rep and Rep the Lord Cromwell case and the operation of the fine  will follow the construction of the deed countess of Rutland case   a  therefore the existence of the power be establish the next question be whether  they have be well execute dame mary jointure have not be object to but the  lease make to the Dacres have first as be without a sub a this be wrong the  power be only in the great deed lege therefore that the to sir r a the father  by the great deed of that June burrow er p sist power in sir r a the elder the  lessor to make it second as be fraudulent even suppose he to have have power  to make it three as the livery and seize be make to the attorney of one only  of the three lessee and not to all three or their jointattorney now it be true  that a tenant in tail in possession may suffer a recovery so also may a tenant  in tail in remainder if he can get in the tenant for life but the original  donor may interpose as many estate for life as he please before and prior to  the tenancy in tail and this lease to the Dacres under the power be just the  same as if it have be original interpose and the declaration of the intention  will not vitiate the estate limit to these Dacres if it have be even a  condition annex in restraint of alienation such a condition will have only be  void and the estate good   Litt a corbel case   mary Portingtons case   b  burrow as to fraudthere be nothing fraudulent in this lease and both the term  have be actual recover at law if sir r a the father superfluous declaration  have any effect it make the lease good and it will have be adjudge good if it  have be call in question while it subsist Leon more and Savills case and no  one be hurt or defraud by this lease not the jointress for the full and best  rend be reserve therefore cro Elizabeth the countess of sussex case do not  affect this case for there the jointress suffer nor be the tenant in tail hurt  for the same reason as to his rend and as to the neglect his power to suffer a  recovery it be legal and may have be do by a real actual demise for life or  life and the eye of this court do not pierce further than the shell of the  conveyance not to the design of it as in case of term to preserve contingent  remainder this court can hinder the trustee from destroy they so of term to  attend inheritance which this court can hinder the mortgagee from get in cro  car the case of Nash v Preston be a strong case to show that the court of law  will not meddle with the equity of the case now this lease have pursue the  power and this court will not meddle with the intent lease make by churchman  for the benefit of their family be general as fictitious as this and yet they  be always allow to be good as to the livery and seisinthis livery to Thomas  Barker enure to the use of all the three Dacres accord to the purport and true  meaning of the letter of attorney most explicit therein express and so declare  at the time of the livery by sir r a the elder who give it this sufficient  appear as the present feoff be by deed from bro Abr title Fessements de earth  pl and   Litt b a but Anders pl the case of Davy v abbot be in point it be  most exact the same case as this so that the lifeestates of dame Ann and of  the three Dacres appear to have be well create consequent therefore a double  freehold be sufficient establish videlicet one in dame Ann the other in the  Dacres burrow from hence it follow three that sir Robert atkins the son be by  they preclude from suffer this recovery as he be not tenant in tail in  possession at the time of his make the feoff to James earl therefore he be to  gain a freehold as he can by right or wrong and it may be say that either of  they will do but even suppose he to have be tenant in tail in possession yet  James earl be no good tenant to the proaeipe when he recover against dame Ann  he be not tenant in tail in possession but he recover against her upon a  supposition that he be which supposition be ground therefore upon a mistake  and the term which Philips recover as his lessee and surrender to he be both  of they fictitious so that the feoff to earl must fall to the ground have no  foundation to support it and though livery be give to he b sir Robert yet sir  Robert himself continue in possession till his death and it may have be add as  all three be under age legal trust burrow er p which observation be premise  this part of the case may be consider saint on sir Robert verdict and  judgement against dame Ann and dly on his subsequent feoff to earl first his  entry under the judgement can amount to a seize nor have he thereby a estate  pursuant to his title as there claim by he it can not be more than a estate in  tail expectant upon two freehold ft can not be a seize because it be a entry  under a verdict in truth he gain only a bare naked possession without the  freehold and so be the writ of to have facias possession and the judgement be  to recover the term only and cro Elizabeth the case of Bateman v Allen upon a  devise the same with that in the case of Newys and student his wife v lark in  Plowd also prove this therefore the entry under the judgement in ejectment can  give no title to sir r a the son to suffer a recovery it be a lawful entry but  a unlawful hold   light b a wrongful withhold be not a seize but a deforcement    Litt b b b and this be without the freehold it be like the case of tenant at  sufferance assize   Litt b Ro Abr title seize letter pl cro James the case of  butler v Duckmanton   light cro Elizabeth the case of burrow Allen v hill all  which case concur to prove that nothing shall operate by way of seize but a  tortuous entry and there be no middle kind of hold between a naked possession  that disturb nothing and a fee which disturb every thing then second as to the  feoff to James earl it gain no estate to earl this be a very great point to  family for the preservation of intails if the contrary construction shall  prevail even tenant at will may do the same thing but the line be draw thus  videlicet that a tenant in tail with the freehold may bar but without it he  can not a real feoff indeed may do it but a fictitious one can but shall be  consider as fraudulent and void like that in Savile Leon white v William Bacon  it be not a discontinuance swift v heath Carthew sir r a the son gain no fee  by it to himself nor any to earl and the court will consider it as mere  collusive that he gain none to himself appear from Brownlow dame pet case Inst  cro car blunden v Baugh Bracton lib pa   light die assize Powsley v Blackman  cro James bull v Wyatt cro car that he gain none to earl be equal true earl  gain no estate of freehold by this feoff either as a wrongdoer or as a seize  Ventr sergeant maynard argument in more v Pitt he may indeed be take as a  seize at the election of the right owner but not against it and here be no  intention of a seize cro James Ferrer v farmer Mod fountain v cook in fact  here be no actual seize for sir r a the son continue in possession neither be  here any force or expulsions and it be not every entry that be a seize it be  no seize unless there be a expulsion   Mt salk pl most express consider this  feoff as part of the conveyance of a common recovery as a common assurance sir  Robert the young have no power to make a feoff burrow it be not hereby mean  that he can not in fact make a feoff every man in possession may do it but  this sir r a the son can not convey a estate of freehold by any rightful  conveyance as fine release or bargain and sale and if he can do it by a  rightful method will the law permit he to do it by a wrongful one sure not the  possession of a tenant at sufferance be not sufficient to build a title upon    Litt cro James cro Elizabeth common recovery be now consider as a mere  conveyance and the recoveror be a mere instrument and creature of the tenant  in tail Rep Cromwell case Poph the case of Crocker and York v dorm cro James  sir John Ferrer and sir John Curson v sir Richard Fermor and other Ro Rep SC  at the end of it Mod fountain v coke so the know case of copyhold can a coke  complete copyholder and the case in Ro Rep Herbert v Binion burrow er p from  all which case it be clear to u infer that the whole transaction be one common  assurance that the recoveror be a creature and instrument of the tenant in  tail and that it shall not be consider as a tortuous entry and a seize in a  common assurance such a feoff as this may be make by any person in possession  and if this shall be establish it may be of very mischievous consequence and  will introduce a new law contrary to all former rule and doctrine the stat g c  consider a common recovery as a common assurance and have a proviso that the  person have a title to make a tenant to the praecipe and here be not the least  ground to presume that the tenant for life either join or surrender their  estate now if the law consider that some person have this power and other have  not the law will never suffer that to be do by fraud which can not be do fair  and regular and this whole transaction be fraudulent and collusive and do  eastern mind to bar the subsequent estate and be therefore void as a fraud  within the rule of Fermors case b which consider a estate make by collusion  and fraud as no estate last admit the fact of sir r a son be tenant in tail in  possession and also that there be a good tenant to the praecipe yet the  reentry of the jointress actual avoid it and revested all the subsequent  estate burrow if the recovery be not absolute void but good as a common  conveyance yet it be voidable and if it be voidable then it be actual avoid by  the entry of dame Ann upon demise lie as far back as the that of February to  prove this they apply the case in   b liffords case cro Elizabeth Holcombe v  Rawlyns Anderson butler v baker FitzGibbon Bunker v cook holt case   b sir  William pelham case and a case in c b in h Ann Goodtitle v Risden it be like  the regress of a disseizee which avoid all intermediate act by relation Mr  Knowler who twice argue this case for the defendant include in his last  argument all that have be or can be urge on that side of the question and it  be to the follow effect the main question upon this case be whether the  recovery suffer by sir r a the son be a good recovery for it be insist by the  lessor of the plaintiff that the recovery be void as be suffer by a person who  have only a bare possession and have no power to make a tenant to the praecipe  but if the recovery be good the lessor of the plaintiff can have no title  because he claim under a limitation in fee expectant on the determination of a  estate tail which be bar by the recovery the limitation under which all the  party derive their title be contain in two deed date that June which from  their bulk and for distinction sake have be call the great deed and the little  deed the great deed be a release ground on a bargain and sale for a year the  little deed be a covenant to levy a fine and a declaration of the use of the  fine in speak to the question four matter must be take into consideration  videlicet first the order in which the two deed be execute and in what manner  they influence each other and from burrow this consideration it will appear  whether the Leasing and jointuring power do exist at the time when they be  exercise by sir Robert atkins the father second suppose the lease and  jointuring power do then exist then whether those power be well execute by the  say sir Robert the father three suppose they be well execute then whether the  lease or the jointure make pursuant to these power be a impediment to sir  Robert atkins the son suffer the recovery fourthly if the recovery be good  then whether the reentry of dame Ann under the second ejectment do avoid it  first as to the order in which the two deed be execute and in what manner they  influence each other it be find by the verdict that sir r a the father be  seize of the estate in question and of several other estate on June make and  execute three burrow er p indenture by the first he in consideration of a  marriage before that time have with dame mary his then wife and of her release  a former jointure make to her before their marriage covenant that he and the  say dame mary his wife and sir Edward atkins his father will levy a fine to  Edward Carteret and John low of the estate in question only to the use of sir  r a the father for life sans waste remainder to the say dame mary for life for  her jointure remainder to sir r a the son and the heir male of his body by  lovis Carteret his intend wife remainder to the right heir of sir Robert the  father by the second indenture take in the order as they stand in the verdict  the estate in question be bargain and sell by sir Edward a and sir r a the  father to sir Edward Carteret and John low for a year by the three indenture  sir Edward a and sir Robert a the father in consideration of a marriage before  that time have between sir r a the father and dame mary his then wife and of a  marriage to he have between sir r a the son and lovis Carteret and of her  marriage portion and for a provision to be make for dame mary of a jointure  release the estate in question inter alian to Carteret and low and their heir  to the use of sir r a the father for life sans waste remainder except timber  to dame mary for life for her jointure remainder to sir r a the son and the  heir male of his body on the body of burrow lovis Carteret remainder to the  right heir of sir r a the father these be all the limitation in this indenture  concern the estate in question sir r a the father covenant with sir George  Carteret the father of lovis c that for the better secure the estate in  question to sir Edward c and John low and their heir he and dame mary his wife  and sir Edward atkins will levy a fine to Carteret and low and their heir to  the use before declare in Trinity term a fine with proclamation be levy of the  estate in question together with other estate by sir Edward a sir r a the  father and dame mary his then wife to sir Edward Carteret and John row it be  not find which of the two deed be execute first though it be a matter of fact  so that the priority of execution must be determine by the court from  circumstance and presumption the order in which the two deed stand in the  verdict conclude nothing one way or the other since they be place there as  they be give in evidence then he proceed to compare the two deed and to reason  upon they and argue very elaborate that either the little deed be execute  after the great deed or that the little deed be make with a view to control or  correct the great deed or that the great deed and the little deed and the fine  must be consider as one assurance though not as incorporate and as one single  act and in either case there be a end of the lease power and also of the  jointuring power and he argue very strenuous that the fine will extinguish  both those power because they be power appendant and annex to sir r a the  father estate for life and not collateral to his estate second point or  headsupposing the great deed be last execute or that it control or correct the  little deed then whether the lease and jointuring power be well execute by sir  r a the father he choose to say nothing as to the execution of the jointuring  power no circumstance attend the execution of it have be lie before the jury  but confine himself to the other the lease power now this lease be void as  against law be make for no other purpose than to restrain sir r a the son from  suffer a recovery for that restraint be against law the power to suffer a  common recovery be a privilege inseparable incident to a estate tail it be a  potestas to make strange burrow which be not restrain by the statute de gift  and have be so consider ever since Taltarams case e b pl and this power to  suffer a common recovery can be restrain by condition limitation custom  recognizance statute or covenant that it can be restrain by condition appear  by   Litt b a and Sondays case Rep see the note at the end of the reply pa  account for curtail this part of the argument burrow er p that it can be  restrain by limitation appear by cro James foy v hind and by Sondays case and  other book that it can be restrain by custom appear by the case of tailor and  shaw in carter pound that it can be restrain by recognizance or by statute  appear by pool case cite in more that it can be restrain by covenant appear by  the case of Collins v plummer peer wms that a attempt to suffer a common  recovery can be restrain appear by corbet case in the Rep mildmay case in the  Rep and the case of pierce v win in Ventr and that a conclusion to suffer a  recovery can be restrain appear by mary Portingtons case in the Rep so that  the question be reduce to this whether that can be effect by a lease make  pursuant to a power which can not be attain by a condition limitation custom  statute recognizance or covenant since the law have be thus careful to  preserve this incidental privilege of suffer a common recovery to a tenant in  tail sure it will not permit this new experiment equal destructive to that  privilege to take place this be the first attempt of the kind and it be a  sound rule of law that what never have be ought not to be permit burrow the  lease be also void as be fraudulent for it be make to deprive sir r a the son  of the profit of the estate and of a incidental power over it and the fraud  which make it void be apparent and as the estate affect by the lease subsist  before the lease be make the lease be fraudulent at commonlaw to prove the  lease to be fraudulent he rely on Savile the case of white v Bacon h Elizabeth  in a formedon the tenant plead nontenure on which the party be at issue the  jury find that the tenant make a feoff to several person to their own proper  use before the writ purchase and that the feoff never take the profit of the  land but that the feoff take they until the day of purchase the writ and the  doubt be whether the feoff be fraudulent as against the demandant and the  judgement of the court be that it be fraudulent and void now if the feoff not  take the profit but the feoff take they be a reason for adjudge the feoff to  be fraudulent against the demandant in that case the lessee not take the  profit not pay the reserve rend nor have the lease in his custody but the  lessors continue in possession and t king the profit to the day of his death  seem in the present case to be full as cogent reason for determine this lease  to the Dacres to be fraudulent against dame Ann and sir r a the son if this  case shall be answer by say the feoff therein mention be make void by  Elizabeth c make against fraudulent grant the reply will be that that statute  be make in affirmance of the commonlaw as appear by twine case in the Rep b  but he argue that the lease be fraudulent not only at commonlaw but likewise  by the statute for the marriage of dame mary with sir r a the father and dame  mary release her former jointure be a valuable consideration for the estate  limit to dame mary for life and the marriage portion of lovis Carteret be a  valuable consideration which extend to the limitation to sir r a the son and  the heir male of his body by lovis Carteret here it have be observe that if  the lease have be call in question while it subsist it can not have be avoid  but will have be adjudge absolute for the benefit of the lessee and Leon more  and Savill and other book be cite as authority to support the observation  AnswerThe objection to the lease be that it never do subsist for the reason  which have be mention and if the lease be void from the beginning it be a  burrow contradiction to say light shall be adjudge absolute and the authority  cite be all of condition subsequent to the estate create at the same time with  the condition in which case there be no objection to the estate for the estate  be allow to be well create but the objection be to the condition which be  subsequent to the estate it have be observe far that the eye of the court do  not pierce further than the shell of a conveyance not to the design of the  maker of it here indeed burrow er p one must be at a loss for a answer for  want of know what the shell of a conveyance S but there be one thing that  appear upon this special verdict which very much favour if it do not direct  establish what we have be contend for and that be the verdict which be find to  have be obtain by sir r a the son against dame Ann the second wife of sir r a  the father which verdict be a disaffirmance of the lease and jointuring power  and can not have be obtain if those power have subsist it be true there be a  deed find also in the special verdict which be make between the death of sir r  a the father and the bring the ejectment and to which sir r a the son be a  party in which deed there be a recital that sir r a the son then claim the  estate in question by and under the great deed which deed be not give in  evidence on the trial of the ejectment but this find be a matter of no moment  for the little deed be execute either before or at the time or else subsequent  to the time of execute the great deed if it be execute subsequent to the  execution of the great deed then the little deed and fine control the great  deed by extinguish the power if it be execute before or at the time of execute  the great deed then the two deed and the fine may be take as one assurance V  ante and in that case the little deed correct the great one by limit the  estate in question to sir r a the father discharge of the power and in either  case it may be say with great truth that si r a the son claim under the great  deed however suppose the person who draw the deed have mistake the law and mad  a false recital sure a misrecital of matter of law will not conclude a court  of justice and what sir r a the son own opinion upon the matter be will appear  by the recent pursuit of his title against dame Ann for sir r a the father die  in February and in Trinity term follow sir r a the son bring his ejectment  against dame Ann who be then in possession of she estate under the jointuring  power but it have be find that afterward dame Ann bring a ejectment and  recover the estate burrow upon two demise one make by herself and the other by  the survive lessee for life it have be insist that dame Ann can not have  obtain that verdict unless the two power or one of they at least have then  exist to which it may be answer that it do not appear that the little deed be  produce in evidence upon the trial of that ejectment or perhaps the jointuring  power only may then be in question or there may have be other reason for the  difference in opinion but however it may happen still that verdict be not  conclusive here Mr Knowler argue that the lease to the Dacres must have  determine in upon the death of sir r a the son without issue male and that the  lessor of the plaintiff be bar of his remedy by this action of ejectment be a  action ground on a entry because it be not bring within year after his title  accrue and consequent his entry be not lawful by James c but these part of his  argument be omit for the reason give in the note p three point or head but  suppose the lease and the jointuring power do exist and be well execute by sir  r a the father the matter which fall next under consideration be whether the  lease or jointure make in execution of the power be a impediment to sir r a  the son suffer the recovery the point we shall endeavour to establish be that  James earl the person against who the writ of entry be bring be tenant of the  freehold when judgement be give against he in the common recovery and we shall  begin with observe that the jointure or the lease can be no impediment to sir  r a the son suffer the recovery because neither of the lessee or dame Ann be  in possession of the estate at the time when sir r a the son make the feoff to  the say James earl if the court shall be of opinion on the authority of  Anderson that the indenture tripartite date that may vide pa NoteUpon his  first argument he have urge upon the authority of bro Abr title Fefferment de  earth pl that no freehold pass by the livery to any of the three lessee except  John Dacres who execute the letter of attorney to take it which John die in  the lease expire then but he do not now insist upon this point but seem rather  to give it up burrow er p the livery under the letter of attorney of John  Dacres vest the freehold in his colessees as well as in himself and not in  himself only then we insist that the livery be void because the burrow lessee  be in possession by the deed for if tenant for life have a power to make lease  for life and make a lease for life by livery the livery be void because the  lease take effect by the deed for by seal the deed the power be execute levinz  Wigson and garret Ventris the earl of Leicester case and the livery be void  the lessee be never in possession for it be find by the verdict that the  lessee or either of they be never in possession otherwise than by the livery  and as the lease be no impediment so the jointure can be none for it be find  that dame Ann be in possession by virtue of the deed of appointment and claim  the estate for her life for her jointure a ejectment be bring on the demise of  sir r a the son and I walker his trustee against dame Ann and the tenant in  possession for the recovery of the estate and that there be a verdict for the  plaintiff and judgement on it and that a writ of possession be award and that  soon after the judgement and during the life of dame Ann sir r a the son enter  into and be in possession of the estate and that he continue in possession to  the day of his death by this it appear that the jointure and possession of  dame Ann be remove out of the way it can be no objection to the legality of  sir r a the son possession that the judgement be not execute by a writ of  possession since something equivalent to it be find videlicet that soon after  the judgement sir r a the son enter into and be in possession of the estate  and there be no rule of law more uncontroverted than that a recoveror may  enter without a writ of execution where the demand be certain the demandant  after judgement in a common recovery may enter or take out execution at his  election Shelleys case Rep mary Portingtons case Rep conusee may execute a  fine executory which do not take effect till execution by entry bro title the  plaintiff may have a redisseizin on the statute of Merton c which give it  after a recovery in a assize of novel seize and delivery of seize by the  sheriff as well where he execute the recovery by entry as where the sheriff  deliver seize to he the patron who recover quaere hinder may present without a  writ to the bishop Hutton Rudd v bishop of Lincoln and the lessor of the  plaintiff may enter after recovery in ejectment side sir Robert the son be  thus in possession of the estate and the possession which be find to have be  in dame Ann have be remove the effect and operation of the feoff come next in  order to be consider burrow but Mr Knowler say he will out of the respect due  to what come from the court take notice of a intimation of one of their  lordship express a desire to hear it argue hypothetical suppose the less deed  to have be first execute and suppose the power to have subsist and to have be  well execute and consequent that sir r a the son vas only tenant in tail in  remainder what will be the effect of the entry of such tenant in tail in  remainder under or in consequence of a judgement in ejectment and he hope he  say to make it appear beyond controversy that sir r a the son after his entry  in consequence of the judgement in ejectment become tenant in tail in  possession I e become seize of a estate tail execute the gentleman who have  argue for the lessor of the plaintiff have call the possession of sir r a the  son a naked possession but he to maintain his position will show that the  right of possession be in sir r a the son there be a sound distinction in law  between a naked possession and a right of possession a seize have only a naked  possession the disseizee have the right of possession for he may enter upon  the seize but when a descent be cast the right of possession be no long in the  disseizee but be in the heir of the seize for the disseizee can enter upon the  possession of the heir so that a right of possession and a right of entry be  convertible a judgement be a act of law and while it continue in force it  destroy the title of the adverse party a judgement in ejectment by which only  the possession be recover not only destroy the right of possession which be in  the adverse party but give a right of possession to the recoveror and if the  judgement in ejectment this have be intimate by one of the judge at the end of  the second argument burrow er p do not produce this effect the lessor of the  plaintiff can not enter or be entitle to the writ of to have facias possession  but his have a right to enter and to sue out that writ infer his right to the  possession while the judgement stand in force it remove a intervene estate out  of the way and during that time it be the same thing as if it have never exist  and the recoverors right to the possession will continue till the judgement be  reverse by error or falsify in another action like the case where the tenant  in tail suffer a erroneous recovery so long as the recovery remain in force it  be a bar to the tail and the issue in tail have no right to the estate tail  for if the tenant in tail shall seize the recoveror and die the issue will not  be remit because he have but one burrow title to the land which be the title  by descent and there must be two title in the same person to make a remitter    Litt a now the consequence of this be that the right to the possession and the  remainder in tail meeting in the same person and that person be sir r a the  son the possession and the remainder in tail unite and sir r a the son become  seize of a estate tail execute or in other word of a estate tail in possession  if the nature of a action of ejectment and the consequence result from a  recovery in it be consider this will appear in a clear light a ejectment be a  possessory action in which almost all title to land be try whether the party  title be to a estate in fee fee tail for life or for year the remedy be by one  and the same action in a action of ejectment the plaintiff recover only the  possession of the land and the execution be of the possession only but if the  lessor of the plaintiff recover only the possession of the land it may be ask  how he become seize accord to his title to which it may be answer that when a  person be in possession by title as every person be who enter in execution of  a judgement in ejectment because the law do no wrong the possession and title  unite for it be a rule of law that when a man have a title to a estate come to  the possession of it by lawful mean he shall be in possession accord to his  title as where the title be to have a fee he become seize in fee where the  title be to have a estate tail he become seize of a estate tail and so on the  law cast the estate upon he accord to his title and be it not so a ejectment  will be the most ineffectual remedy for the trial of title to estate and it  will never answer the purpose for which it be bring into use if as the counsel  on the other side will have it the lessor of the plaintiff have no more than a  bare possession after a execution or entry on a judgement in ejectment but  this be not all for a great absurdity will follow be it otherwise a man will  have a rightful possession with a immediate remainder to himself in tail a  notion which never exist till this case come to be debate what be it that  convert a estate tail in remainder into a estate tail execute in any case  certain nothing more or less than the possession come to the remainder in tail  for if there be tenant for life with remainder to a three person in tail  nothing come to the remainderman upon the death of the tenant for life but the  possession for the estate tail be in he before burrow and while the estate  tail continue execute sir r a the son make the feoff to James earl which  discontinue the tail and vest a defensible fee in he and the praecipe upon  which the common recovery be suffer be bring against he and sir r a the son be  a party to the common recovery as vouchee the common recovery thus  circumstance bar the estate tail and the remainder over and though dame Ann  falsify the recovery in ejectment bring by sir r a the son by the judgement in  the ejectment afterward bring by herself yet that falsification have no other  effect upon the estate than to revive her right to the possession like the  case just now cite of a erroneous common recovery suffer by the tenant in tail  where if the issue in tail reverse the common recovery by a writ of error the  reversal revive his title to the estate tail and consequent he be then tenant  in tail by remitter so that dame Ann by mean of the recovery in the ejectment  bring by herself have the right to the possession become tenant for life again  in possession with a remainder in fee thereupon expectant to the recoveror in  the common recovery or to the person to who use the common recovery be declare  that estate may open and shut or be spread and expand as event happen be not  burrow er p unusual in our law if a estate be limit to a for life remainder to  his first and other son in tail remainder to a and the heir of his body till a  have issue he be seize of a estate tail execute upon the birth of a son that  estate open and let we in the son and a thereupon become tenant for life with  remainder to his son in tail and this be Lewis bowl case   so if land be limit  to all the child either in possession or remainder upon the birth of the first  child the whole estate vest in he or her upon the birth of another child the  estate open and take in that child and open in like manner on the birth of  every other child ld raym earl of Sussex v temple vern cook v cook but the  resolution of the question now under consideration do not altogether depend on  the quantity of the estate which sir r a the son have at the time when he make  the feoff it depend on the quality of the conveyance he make use of all the  gentleman who have argue this case on the other side have blend and confound  the several operation burrow of different conveyance and have not consider  they with that distinction and precision that be necessary for the solution of  the present question if due attention be give to the operation of the several  conveyance which the law have establish the seem difficulty of this part of  the case will be remove all conveyance operate as a feoff or as a grant a  feoff operate on the possession without any regard to the estate or interest  of the feoff a grant operate on the estate or interest which the grantor have  in the thing grant but to be more particular accord to Lord coke enumeration a  man may purchase or convey land by ten manner of conveyance videlicet by feoff  grant fine common recover exchange release confirmation grant of reversion  with attornment bargain and sale will to make a feoff good and valid nothing  be tin g but possession and where the feoff have possession though it be as  bare and naked S the gentleman will have it yet a freehold or feesimple passes  by reason of the livery Poph Litt   Litt b a a grant passes nothing but what  the grantor may lawful grant Poph Litt a fine and common recovery be liken to  a feoff for one be call a feoff of record and the other be say to be in nature  of a feoff of record that which occasion the likeness between a feoff fine and  recovery be that they all pass a fee though the feoff conusor or tenant have  none   Litt b but to give they this uniform operation the conusor in the fine  and the tenant to the praecipe must be seize of a freehold I e a estate for  life at least otherwise the fine may be avoid by the plea of part Finis nil to  have and the recovery by the plea of nontenure I e that the person against who  the writ be bring be not tenant of the freehold by right or by wrong by this  it appear that a fine and a common recovery be both void for want of a  freehold but it no where appear notwithstanding what have be urge that a  estate in the feoff be necessary to support a feoff but it do appear and I  have a great authority for it that it be no plea in avoidance of a feoff to  say that the feoff have nothing in the land at the time of the feoff because  the land passes by the livery if the operation of the feoff be question the  only plea be not feoff pass which put in issue only the livery this be the  opinion and this be the language of Littleton Edward burrow all other  conveyance as exchange release confirmation grant of reversion bargain and  sale will pass nothing but what the grantor may lawful convey without livery  and on that account be in the nature of a grant Litt Hardr Edward v slater it  be the operation of these conveyance that the gentleman in the course of their  argument have apply to a feoff but with what propriety be submit to the court  upon what be now disclose but it have be say that such a feoff as this may be  make by any person in possession and if establish will introduce a new law in  westminsterhall contrary to all former rule and doctrine to which objection  the answer be that it be most clear that a feoff may be make by any person in  possession for it be the doctrine the law teach and it have be the language of  the great professor of it Lord coke in his comment on the that chapter of W  which give a writ of novel seize where tenant for year burrow er p alien in  fee by feoff ground his distinction between case which be within the Act and  case which be not within the Act on possession only for he say though the Act  speak of a alienation by feoff by a tenant for year yet it extend to tenant by  elegit statute merchant statutestaple tenant at will and tenant at sufferance  because all these have a possession but it be otherwise of a bailiff for he  have no possession at all this show how great one of the gentleman be mistake  when he assert that a conveyance of a estate of freehold by a tenant at  sufferance will be void since it appear by the statute and by the comment upon  it that a feoff by a tenant at sufferance who have no more than a bare  possession will unquestionable pass a freehold and the case of butler v  Buckmanton cro James prove no more than that the release of tenant in tail to  a tenant at sufferance be not good for want of a privity between they beside a  release as have be already observe passes no great estate than the releaser  can lawful convey Lord Ch just holt lie it down as clear law in the case of  hunt v burn annae that if lessee for year make a feoff with livery though the  lessor be on the land protest against it yet the land passes because the  lessee be entitle to the possession and Lord Ch just holt be support in his  opinion by the case of read and Mopeth v errington cro Elizabeth where the  question be if a feoff by lessee for burrow year the lessor be upon the land  be a good feoff for it be pretend that his be upon the land guard the land so  that no feoff can be make but the court be of opinion that the feoff be good  because the lessee have the sole right to the possession and livery ought  always to be give of the possession notice have be already take that it be no  plea in avoidance of a feoff to say that the feoff have nothing in the land at  the time of the feoff let we here add the form of plead a feoff by tenant for  life and tenant for year good plead be a infallible test of the law if feoff  in fee be plead by tenant in fee the conclusion be that the feoff be by virtue  thereof seize in fee and the same conclusion be make on the feoff in fee of  the tenant for life and tenant for year that by pretext thereof the feoff be  seize in fee the entry of Albany case in Rep be a proof of this it appear by  Jennings case in the that Rep that the feoff of lessee for year be a good  tenant to the praecipe in the case of smith v Parkhurst or dorm and fortescue  it be admit that there will have be a good tenant to the praecipe if Mr just  dorm have make a feoff and the question in sir William pelham case   b be a  admission that the feoff of lessee for year will pass a freehold that  possession only will support a feoff be the doctrine at westminsterhall in  elder time in Perkins a book of no mean authority section it be lie down as a  rule that without possession a man can make livery a feoff by the lessee for  year though the lessor be upon the land passes the land and the reason for  this be render in the book because the lessor have nothing to do with the  possession it be the law when land be devisable only by custom that a man may  devise that his land shall be sell by his executor in which case the land  descend upon the death of the testator to his heir at law and the executor  take no interest by the will babington a learned judge in put this case and  take notice of the feoff of the executor make this remark and so say he a man  may have a lawful freehold from a person who have nothing in the land as a man  may have fire from a flint which have no fire in it and he further illustrate  his conclusion with the instance that a woman shall recover her dower which be  a estate for life against a guardian in chivalry who have no freehold h burrow  in h it be mention as a thing notorious that those who have no freehold may  convey a freehold the conveyance which will pass a freehold from a person who  have none must necessary be a feoff since there be no other conveyance in the  law which will produce the like effect before the statute of use a beneficiary  who use convey the use by bargain and sale and afterward levy a fine to  stranger and the question be whether the V ante p burrow er p fine be not void  as neither of the party have any thing in use or in possession for by the  bargain and sale the use be in the bargainee and nothing be in the bargainor  or in the stranger it be argue that f this fine be not good great  inconvenience will follow for that many recovery have be suffer against the  bargainor after he have convey the use to this Fitzherbert reply it be the  folly of purchaser that they do not take a feoff from the beneficiary who use  before the fine be levy for if they do the fine will be good I for my part say  he will never purchase any land without take a feoff so that I may be in  possession when the fine be levy for then the fine will undoubted be good h  the possession here speak of must be a freehold at least because nothing less  than a freehold will support a fine for if neither conusor or conusee have a  estate of freehold in possession remainder or reversion at the time of levy  the fine the fine be void the feoff here speak of be the feoff of a  beneficiary who use after he have part from the use and while the freehold and  inheritance of the estate be in the feoff so that it be the feoff of a person  who have only a bare and naked possession unaccompani with right to a stranger  the feoff can not have be make good by the statute of r c because after the  bargain and sale the use be in the bargainee and the feoff be no long  beneficiary who use this be the opinion and this be the practice of one of the  great lawyer of the age in which he live for it be say that Fitzherbert and  baldwin were the great lawyer of that age the observation upon the opinion of  Fitzherbert be that if a feoff from the beneficiary who use to a stranger  after he have convey the use will have make the fine undoubted good the like  feoff will have make a good tenant to the praecipe and for this plain reason  because the feoff pass a freehold how will this great judge have be surprise  to have hear the operation of a conveyance which he rely on as the basis of  his title to his estate doubt and debate this case be a additional authority  that the feoff of a tenant at sufferance will pass a fee for after the  beneficiary who use have convey the use by bargain burrow and sale he be no  long a tenant at will to his feoff it be likewise a proof that the feoff of a  deforceor who be a wrongful withholder passes a fee for after the bargain and  sale the beneficiary who use have no right to the possession but be a wrongful  withholder upon this it be submit whether the confirmation of this doctrine by  the judgement of the court will introduce a new law into westminsterhall  contrary to all former rule and doctrine or whether it will not rather revive  a doctrine almost wear out of memory it be so long since a feoff be in common  use that it be no wonder the gentleman shall think the doctrine new and that  the property of a feoff shall be so little know but it have be say that the  feoff of tenant in tail in remainder expectant upon a estate for life will not  make a discontinuance though the feoff be make with the consent of the tenant  for life and for this the case of swift v heath Carthew be cite this must be  admit because a feoff do not make a discontinuance unless the tenant in tail  be seize of the estate tail in possession but do this case prove that a feoff  by a remainderman with the consent of the tenant for life be void nothing less  the question in the case cite whether the feoff make a discontinuance admit  the feoff to be good for the doubt be upon the operation of it to put a end to  the question there be a case in which it be determine that the feoff of he in  reversion or remainder in the absence of the tenant for life be a good feoff  it be in dyer the case be that he in remainder in fee feoff a stranger in the  absence of the tenant for life who neither attorned nor assent to the feoff  but occupy the estate during his life and it be hold to be a good feoff for  the feesimple where be the difference between this case and the present in the  case before the court be not the feoff make by the remainderman in the absence  of dame Ann the tenant for life do she ever attorn or assent and do not she  occupy the estate during her life the only difference that can be pretend  between the two case be that in one the remainderman be tenant in fee in the  other tenant in tail but will that make any difference it be impossible it  shall because the feoff in both case take effect by the livery it have be  further say that sir r a the son can not convey a freehold by burrow er p a  rightful conveyance as by fine release or bargain and sale and if not by a  rightful he can not do it by a wrongful one burrow here be a distinction make  which be never meet with accord to their notion of instrument of conveyance a  fine release and bargain and sale be rightful conveyance a feoff a wrongful  one whereas it be most manifest that all conveyance be in themselves equal  rightful and be to be make use of accord to the nature of the case to which  they be applicable and their be rightful or wrongful do not depend upon their  name or their property that a freeholdwill not pass by a fine release or  bargain and sale from a person who have only a bare and naked possession for  that be the subject we be now upon do not proceed from those conveyance be  lawful one but from the nature of those conveyance who property it be to  convey nothing but what the maker of they may lawful convey because they  operate as a grant therefore to infer from thence that a freehold will not  pass by a feoff a conveyance of a different operation and who property be to  pass freehold and fee by force of the livery be a inconclusive argument  another observation have be make that if the law consider that some person  have this power to make a feoff and other have not the law will never suffer  that to be do by fraud which can be do fair and regular answer every one who  can get into possession have and ever have a power to make a feoff and the law  make no distinction of person and whenever a tenant in tail in remainder have  obtain the possession whether by right or by wrong and have do a act while in  possession to make a tenant to the praecipe in order to suffer a common  recovery no instance can be produce where such act have be adjudge fraudulent  unfair or irregular it be very common in practice for tenant for life to  surrender his estate to the remainderman in tail conditional in order to give  the tenant in tail in remainder a opportunity to bar the estatetail and the  remainder over and though such surrender be a mere contrivance between the  tenant for life and the remainderman in tail yet no commonrecovery be ever  avoid on that account if tenant in tail in remainder seize the tenant for life  and during the continuance of the seize suffer a common recovery by their own  admission the common recovery be not avoidable by reason of the seize so where  trustee to preserve contingent remainder during the life of a tenant for year  have convey the freehold burrow to make a tenant to the praecipe in order to  give the remainderman in tail a opportunity of suffer a recovery there be no  instance of such a recovery be set aside at law upon a suppose practice  between the tenant for year the trustee and the remainderman in tail and if a  remainderman in tail who come to the possession by a wrongful act or by  stratagem and contrivance may make a tenant to the praecipe in order to suffer  a recovery sure a remainderman in tail who come to the possession by a lawful  act may do the same where tenant in tail be party to the recovery as tenant or  as vouchee such recovery be not in the eye of the law either fraudulent or  collusive because the law have make the estatetail and all the remainder and  the reversion expectant on it subject to the pleasure of the tenant in tail  and give he a right to bar they all if a reversioner expectant upon a estate  tail can avoid a recovery suffer by the tenant in tail as fraudulent collusive  unfair or irregular the law will have devise some mean for avoid it and the  reason why there be no such mean be because a reversion expectant on a estate  tail be of no consideration in law a reversion expectant on a estate tail be  no asset the reversioner can falsify a common recovery suffer by tenant in  tail neither be resceit give by the statute of W c to a reversioner on a  estate tail the reason of all this be because the estate tail be ail  inheritance which may continue for ever there be no provision by the statute  of h c and Elizabeth c to preserve a remainder or reversion expectant on a  estate tail as there be when they be expectant on a estate for life and the  tenant for life be only vouch but Fermors case   have be object as if there be  no difference between a fine or recovery by tenant for year tenant for life or  a copyholder by covin to the intent to bar the reversioner or the lord of his  inheritance and a recovery suffer by tenant in tail to the intent to bar the  estate tail and the reversion burrow er p it have be matter of surprise to  hear the gentleman mention the statute of g c because that statute be make in  aid if recovery and not to invalidate they and more especial as the proviso in  the Act that it shall not be construe to prejudice or affect any question ill  law which may arise upon common recovery not remedy or intend to be remedy by  it but all such common recovery be to remain and be of such force and effect  as the will have be if the Act have not be make beside there be a proviso in  the et that no common recovery shall be call in question after year burrow the  principal armament which the gentleman have oppose to the doctrine which we  have be endeavour to support may be reduce to the head of inconvenience and  they have argue upon it as if the decision of the question depend on private  opinion and not on the law but the question be not what inconvenience will  attend the determination either way but what be the law the inconvenience if  there be one arise from the nature and operation of afeoffment and can be  avoid but by take away that conveyance or deprive it of a operation which it  have be allow to have by all the sage of the law but to do this be not in the  power of a court of justice since no maxim of the commonlaw can be abrogate or  abolish but by a legislative authority it be once think to be a great  inconvenience that a descent immediate after a seize shall take away the entry  of the person seize at another time it be think to be no small one that the  son shall lose his patrimony because he happen to be bear out of time and till  late a heir may have be deprive of his familyestate by the warranty of a  ancestor who be never in possession of it the inconvenience occasion by the  maxim I have just now hint at be as great as that which be pretend to arise  from the feoff of a tenant in tail in remainder expectant upon a estate for  life and yet they continue through age of the law till the legislature take  they away the inconvenience which attend the law in those instance be as  universal as any that can be suggest to follow from the doctrine we have be  endeavour to support and yet court of justice never think themselves warrant  to depart from the law can the court of commonlaw have determine that a  descent after a recent seize do not take away a entry without determine at the  same time that a descent do not take away a entry can they have determine that  a posthumous child shall take though the estate which be the support of the  limitation to it determine before its birth without resolve at the same time  that a contingent remainder shall take effect though it do not vest during the  continuance or upon the determination of the estate create for its support or  can they have determine that a heir shall take a estate notwithstanding the  warranty of his collateral ancestor without determine that collateral  warranties do not bind and can the court determine in the present case that  the recovery be void without adjudge that a feoff burrow have not the  operation which it have have ever since it become a common assurance when the  law be doubtful it be Allowable to draw a argument from inconvenience but  where the law be clear and precise as it be that the feoff of a person in  possession let he come to that possession how he will passes a fee a argument  from inconvenience be not admissible because it tend to undermine and  overthrow the law much have be say of seize and many critical observation have  be make upon that subject in order to show that sir r a the son can not be a  seize all that needs be say to they be that sir r a the son enter by right or  by wrong for there be no medium and that he enter and take the profit be admit  now if he enter of his own wrong he be a seize for he oust the tenant for life  and if he be a seize it be agree there be a good tenant to the praecipe if he  enter by right then for the reason already offer he have power to make a  tenant to the praecipe by his feoff so that in either case James earl be a  good tenant to the praecipe at the time when judgement be give in the common  recovery and so he be warrant he say to conclude that the recovery be good and  bar the estate tail limit to sir r a the son and consequent the remainder fee  which be limit to sir r a the father and by he devise to the lessor of the  plaintiff burrow er p the four point or head suppose the recovery to be good  whether the reentry of dame Ann under the recovery and judgement in the second  ejectment do avoid it the gentleman who make this question say it seem to be  of considerable weight whether it be so or not we shall see present what he  undertake to maintain be that the entry of dame Ann after she have recover in  the second ejectment revested her estate for life and the remainder in fee and  put the estate in the same plight it be in before the common recovery be  suffer and to make this out he compare the entry of dame Ann to the regress of  the disseizee which void all intermediate act by relation and make that  instance the foundation of his argument Mr Knowler here observe how  inconsistent this argument of the gentleman be with the former the direction  burrow and force of his former argument under the last head be to show that  sir r a the son enter by title and can not possible be a seize the drift of  this argument be to prove he to have be a seize this show how difficult it be  to be consistent when a person will reconcile matter not supportable the  question be not to be determine by the rule or instance which the gentleman  have apply to it but upon this distinction where the entire estate be defeat  and where only part of the estate be defeat by one who have a prior title the  case which the gentleman put fall under the first member of the distinction  the present case fall under the second member of it the subsist estate at the  time when dame Ann enter under the judgement in the second ejectment be a  estate in fee in Robert atkins the nephew and heir of sir r a the son all the  interest that she can derive to herself by force of the judgement in the  second ejectment be a estate for life for she can recover no otherwise than  accord to her title and therefore dame Ann entry under that judgement can have  no other effect than to diminish and lessen the interest of Robert atkins by  take out of it a estate for her life this will appear by some instance which  shall be mention tenant for life surrender his estate to the next remainderman  in tail conditional to enable the remainderman to suffer a common recovery a  recovery be suffer and the condition be break the tenant for life reenter the  reentry of the tenant for life will not avoid the recovery and revive the  estate that be bar by it this appear by every day experience one of the  gentleman seem to admit the law to be so and account for it by say it be  because the tenant to the praecipe be make by force of a rightful estate but  that be not the reason the true reason be what have be already mention that  only part of the estate be defeat by the entry of the tenant for life and not  the entire estate a tenant for year or by elegit can avoid or falsify a  recovery during their particular estate only a wife can avoid a recovery  suffer by her husband alone as to her title of dower only and no further  remainderman in tail expectant on a estate for life seize the tenant for life  and levy a fine with proclamation the tenant for life enter on the conusee and  it be determine that notwithstanding the regress of the tenant for life the  reversion remain in the conusee not defeat and this be the case of oak ex  discontinue Lord Sturton which be cite in Popham lessor seize his lessee for  life and make a lease for life to another the first lessee reenter he leaves  the reversion in the second burrow lessee for life who shall have the rend  reserve on the first lease earl of Gloucester case cite in sir moil Finchs  case more proof may be bring to confirm this part of the argument but in so  plain a case these may suffice and with they we may conclude that the reentry  of dame Ann under the recovery and judgement in the second ejectment do not  avoid the common recovery suffer by sir Robert atkins the son and let it be  observe that the argument make use of have not be draw from general reason and  reflection but have be suggest from authority and from the experience and  practice of learned man upon the whole he pray judgement for the defendant in  replyit be urge on the part of the plaintiff first as to the great and little  deedsthat the little deed do not revoke the great one or destroy the power  thereby give which be support chief by argument draw from the deed themselves  burrow er p as to the lease to the Dacres be fraudulent V ante the case in  Savile be not like the present for here be express legal motive for make the  lease whereas there be none in that case for make the feoff as to liveryit be  not necessary and therefore void Ventr as to the recovery the authority be not  ad idem nor as to the feoff for this be a fictitious possession and in frown  not a actual possession No freehold be recover in ejectment so that sir r a  the son be not tenant in tail in possession for want of the freehold and  without be tenant of the freehold the recovery can not be valid Mr Knowler  admit that the possession of the bailiff will not do V ante and sure this case  be strong than that of bailiff as to cro James the case of butler v Duckmanton  V ante the possession of the tenant at sufferance be consider as no possession  at all in that case therefore we may admit all Mr Knowlers case because they  do not come up to the present case of sir r a the burrow son possession  consequent the remainder be not affect by any thing do under this nugatory  possession dame Ann be tenant of the freehold and without disseizing her there  can be no tenant to the praecipe who will be tenant of the freehold sir r a  the son do not enter as a seize but as have a title and he have a title under  the judgement to enter and the estate which pass by the feoff be accord to his  right Ro Abr   Litt b and the warranty extend only to the fictitious title in  ejectment the possession only be transfer to he not the freehold and this be a  mere naked possession a accidental possession Carthew prove that the remainder  be not discontinue for want of tenant to the freehold dame Ann be never out of  possession of the freehold so that the estate which sir Robert gain by his  entry upon dame Ann can not be a estate tail in possession because there be a  prior rightful estate for life in another person therefore it must be a estate  tail in remainder it be ask when he first begin to hold over unlawful the  answer isfrom his first entry his entry be not wrongful therefore he can be  consider as a seize but he hold over unlawful it be like a tenant by  sufferance or a man who enter upon the king who can be put out of possession  or a husband after the death of his wife c and it be not easy to apprehend the  distinction between enter under the ejectment and enter in pursuance of the  ejectment consequent his be a mere naked possession and the freehold remain  undisturbed in dame Ann as to the fraud and collusion of suffer a recover  ythere be sure such a insufficiency of estate in a tenant in tail in remainder  that he can suffer a common recovery and sure the court will not permit a  person who can be a tenant to the praecipe himself to make a tenant to the  praecipe and they strong urge the vast inconvenience that must attend this  doctrine now advance that a tenant in tail in remainder only who can obtain a  mere naked possession may legal suffer a recovery and bar the subsequent  remainder four point as to the reentry of lady Annthe verdict do nothing it be  the entry that revests it revested her estate which be a estate for life  whereas sir r a the son entry under his verdict only operate to give burrow he  a naked possession he have no right to a estate tail in possession and he can  not be tenant in tail in possession to one purpose and in remainder to another  then her reentry leave he tenant in tail in remainder as it find he in the  case in Ro Abr title remitter letter in pl the wife enter under a Act of  parliament which remit her that point as to the remedy the plaintiff be not  bar of his entry by the statute of limitation I c for the recoveree be not  entitle to suffer a recovery not be tenant in tail in possession as to dame  Ann recovery in the ejectment bring by Milesthe demise be here be a like  omission as to the argument concern the validity and determination of the  lease to the Dacres as in the adverse argument see the note on p and the rest  of this argument be omit for the reason give in the subsequent note burrow er  p lie so far back as to overreach the whole term which sir r a the son have  recover it be lie so far back as to five day after the death of sir r a the  father and her estate have never be discontinue nor her right of entry take  away so that sir Robert the son be never tenant in tail in possession the  lessor of the plaintiff can not therefore enter till the jointure of dame Ann  be at a end and her lifeestate determine neither can he enter so long as the  lease to the Dacres be in be which do not expire till the death of Thomas  Dacres the survive lessee on d July note the last of the four argument of this  case be intend chief for the information of Lord Mansfield who have not hear  any of the former before it come on his lordship have read the case and see  note of all the former argument send for the counsel and agent on both side  and tell they that a point occur to he which do not seem to have be particular  attend to in draw up the special verdict and which he observe have be very  little go into in any of the former argument that it seem to he material and  therefore he wish to have it speak to and he choose to apprise they of it  beforehand to avoid further expense and delay to the party because if he shall  defer mention it till after he have hear they in court and if they shall omit  go full into that point in their argument and his lordship shall continue to  think it material it must occasion a new argument the point be whether suppose  the recovery to be bad yet the plaintiff ejectment be not bar by the statute  of limitation burrow that depend he say upon many consideration which he  desire they to think of as first whether the lease be make pursuant to the  power or in other word whether the lease be void as not be make pursuant to  the power second whether it be not determine upon the extinction of the estate  tail in three whether at this special verdict be find a objection from the  statute of limitation be now open to be make and he mention some case to they  which he desire they to look into accord upon this last argument the say  question be very full discuss on both side but to avoid prolixity I have omit  to report these argument of the counsel because every thing material upon this  point will appear from the follow unanimous resolution of the court give by  Lord Mansfield Lord Mansfield now deliver the resolution of the court have  first state the case and special verdict sir Robert atkins the son be dead  without issue male the reversion in fee devise to the lessor of the plaintiff  be come into possession and consequent he must be entitle to judgement in this  ejectment unless the defendant can set up a bar to his right or to his remedy  by a ejectment they set up a bar to both in bar of his right they insist upon  the common recovery suffer in Hilary term Ann a d in bar of his remedy they  insist upon the statute of limitation the common recovery if duly suffer  certain destroy the right of the lessor of the plaintiff the statute of  limitation if his title of entry accrue above twenty year before the that of  December have certain take away the remedy by ejectment the merit therefore  must depend upon two general question first whether the say common recovery be  duly suffer second whether this ejectment be bar by the statute of limitation  as to the first the objection be that there be not a burrow good tenant to the  praecipe for lady atkins the widow of sir Robert the father have a estate for  life in the premise and do not join by surrender or otherwise in any  conveyance of the freehold to James earl the tenant against who the praecipe  be bring there be no occasion to entangle this part of the case with the  demise to the three Dacres the defendant contend that there be a good tenant  to the praecipe upon two ground saint because lady atkins have no estate for  life and so sir Robert the son be tenant in tail in possession dly suppose she  have a estate for life yet earl be a good tenant to the praecipe by seize  which they endeavour to prove they fall under the second point see ante p in  the note and p and burrow er p two way videlicet saint that sir Robert atkins  by his entry be himself a seize and by his feoff the that of January convey  the freehold he have acquire by seize to James earl and dly suppose sir Robert  the son be not a seize yet his say feoff be a seize and make James earl a good  tenant of the freehold by seize as to the first ground that lady atkins have  no estate for life  the whole argument depend upon this proposition that the  lesser deed be execute after the great deed and consequent the power to sir  Robert atkins the father to make a jointure be distinguish by the fine levy in  Trinity term but the jury have not find the fact which be first execute b the  deed bear the same date they be both consistent they be both manifest but one  agreement execute by different instrument to answer different purpose and to  suit probable the convenience of one party who be interest only in a small  part of the transaction the fine levy in Trinity term pursue both deed and  comprise all the premise in the great deed by which the power be create it  never can be the intent to revoke these power at the instant they be create by  the lesser deed which make no mention of they or by a fine levy agreeable to  the great deed in which they be contain sir Robert atkins who survive the  transaction above thirty year have show by many act that he understand the  power to be well create and subsist if it be necessary we ought to presume the  lesser deed first execute to support the clear intent of party in a family  settlement make for valuable consideration burrow for it be impossible to  suppose they can real mean to revoke or extinguish these power and take this  way of do it but in this case there be no room for presumption the internal  evidence of the thing itself speak they to be one transaction and the same to  all intent and purpose as if express in one instrument as the jointress clear  have a estate for life the next ground be that James earl be a good tenant to  the praecipe by seize the better to judge of this question it may be proper to  try to find out what the old law mean by a seize which constitute the tenant  of the freehold in respect of every demandant sue out a praecipe although the  owner entry be not take away for where the right of possession be acquire and  the owner put to his real action there without doubt the possessor have get  the freehold though by wrong all the law concern disseizins which be any way  applicable to the present inquiry exist and be in use and practice before the  assize of novel seize the assize be introduce probable from the usage of  Normandy for the grand Coustumier treat of assize in or before the reign of  Henry the in Glanville who write in that reign call the great assize two  benefit mercy Princeps de council nobles poplar tree dispensation and the  mirror foe say Glanville introduce it seize be a technical term to denote the  completion of that investiture by which the tenant be admit into the tenure  and without which no freehold can be constitute or pass to know be feudum  without investiture nullo modus to put posse feud lib title lib title Craig  lib title seize therefore must mean some way or other turn the tenant out of  his tenure and usurp his place and feudal relation at the time I speak of no  tenant can alien without licence of the lord when the lord consent the only  form of conveyance be by feoff public make in person pair curiae with the lord  concurrence homage or fealty be solemnly swear and suit of court and service  be frequent do the freeholder represent the whole fee do the duty to the lord  and defend the whole fee against stranger the freehold never can be in  abeyance because the lord must never be at a loss to know upon who to call as  his tenant nor a stranger at a loss to know against burrow who to bring his  praecipe from the necessity of there be always a visible tenant of the  freehold and the notoriety who act and do suit and service as such many  privilege be allow to innocent person derive title from the freeholder de  facto if the seize die after one year nonclaim the descent to his heir give he  c p edit burrow er p the right of possession and take away the true owner  entry the stat of h c require five year nonclaim the feoff of a seize acquire  title and possession at the time I speak of by one year nonclaim the descent  to his heir remain privilege as it be at commonlaw for the h c extend not to  any feoff of the seize immediate or mediate   Litt a the feoff of a seize be  favour because he come innocent into the tenure by a solemn and public  investiture with the lord concurrence but the statute because buyer the earth  which take away subinfeudations and give free liberty of alienation to the  tenant of subject and to those who hold of the king as of a honour or manor  and other statute which extend the power of alienation to the king tenant in  capite the frequent release of feudal service the statute of use and of will  and at last the total t abolition of all military tenor have leave we little  but the name of feoff seize tenure and freehold without any precise knowledge  of the thing original signify by these sound the idea modern time annex to  freehold or freeholder be take mere from the duration of the estate copyhold  and the customary freehold in the north retain faint trace in imitation of the  old system of feudal tenor it be obvious how a man may visible be the  copyholder or customary freeholder de facto in prejudice of the rightful  tenant it be obvious too that usurp such copyhold or customary tenure be a  different fact from a naked possession or occupation of the land but whoever  will look into the practice of other country where tenor subsist with all the  solemnities of feoff and seize upon every change of a tenant by descent or  alienation and upon every usurpation of the real right will easy comprehend  that at the time I speak of it may be as notorious who be the feudal tenant de  facto as who be now de facto incumbent of a live or mayor of a corporation  seize be a complicate fact and differ from dispossess the freeholder by seize  differ from a possessor by wrong Bracton c de assisa novae Disseysinae foe put  many case of possession wrongful burrow take which he call intrusion because  there be no seize possession who to make naked be entirely et without to some  place garment who to say intrusion garment be seize investiture from whence  the Saxon term vest a metaphor the feudists take from cloth by which they mean  to intimate that the naked possession be cloth with solemnities of the feudal  tenure a particular tenant accord to feudal notion be in as of the seize of  the fee of which his estate be a part if he alien the fee which he can only do  by solemn feoff with the concurrence of the lord of who the fee be hold he  forfeit his particular estate for have betray his seize with which he be  entrust but on account of the privity and confidence between he and the  reversioner and the notorious solemnity of the Act of investiture his feoff  seize the reversioner Bracton who write in the reign of Henry before tenant  can alien without licence mention the seize in this case as a necessary  consequence and as a thing which can not possible be otherwise c de assisa Nov  a Disseysinae b a item compose quis disseysinam cum quis in seysina to be ut  de book tenement ad vine well ad boundary a year well nomin watch well to some  place elsewhere modus other feoffaverit in precedent very domini to make one  book property cum two simul et semul de eoden tenement in solidun be non to be  able in seysina he consider it as impossible for the true tenant not to be put  out when the other actual come into his place so late as the d of Elizabeth n  the case of Matheson v trot Leon b the e vide c c and c c vide lib c a this  seem to be a mistake of Bracton it may not be easy to understand clear all his  distinction but this be clear that seize be not in his idea of it a complicate  fact as here represent thus much be certain that in his sense of intrusion  that may be without seize and he define it in the beginning of the second  chapter to be where quis c b it appear by the report of that case in Leon and  by the reference to burrow er p distinction upon which the judgement turn be  that Henry Denny gain a wrongful possession in fee but do not gain any seize  so no seize therefore the descent to his heir be not privilege nobody can  seize the king neither can any one be seize to the use of the king the king  may be wrongful dispossess but the intruder be injurious possession be without  to some place garment and call intrusion the king can be make a seize not  because it be wrong for he may in fact withhold the possession of land from a  subject contrary to right but the reason seem accord to the feudal system to  be this a subject never can stand in the king seize or tenure and the king  never can be in the seize tenure or feudal relation of a subject by that  policy all real property be hold mediate or immediate of the king in the king  himself all real property be allodial burrow the precise definition of what  constitute a seize which make the seize the tenant to the demandant praecipe  though the right owner entry be not take away be once well know but it be not  now to be find the more we read unless we be very careful to distinguish the  more we shall be confound for after the assize of novel seize be introduce the  legislature by many act of parliament and the court of law by liberal  construction in furtherance of justice extend this remedy for the sake of the  owner to every trespass or injury do to his real property if by bring his  assize he think fit to admit himself seize it lie against adviser aider or  abettor who be not tenant   Litt b it lie against the tenant who be no seize  as the heir of a seize or his feoff stat Gloucester it lie for the owner  against the seize of the seize the tenant not be ready to pay a rentseek when  demand be for the benefit of the owner remedy a seize light it lie for  outrageous distress Inst it lie against guardian or particular tenant who make  a feoff as well as against their feoff Inst the stat of Westminster c extend  it to a man depasture the ground of another or take fish in his fishery if one  receive my rend without my consent I may elect to make he a seize style if a  guardian assign dower to a woman not dowable the owner may elect to make her a  disseizoress Edward cite in cro car in a word for the sake of the remedy as  between the true owner and the wrong doer to punish the wrong and as between  the true owner and naked possessor to try the title the assize be extend to  almost every case of obstruction to a owner full enjoyment of land tenement or  hereditament the report of assize can only relate to case where the owner  admit himself seize the lawbook treat of seize with a view to the assize which  be the common method of try title till ejectment come in use Littleton who  write long after the remedy by assize be enlarge by statute and by a equitable  latitude of construction speak of disseizins principal as between the owner  and trespasser or possessor with a eye to the remedy by assize these be the  common place from whence many description have be cite of a seize but such  burrow authority can give little light to the present question which depend  upon the nature of such a seize as make the seize tenant to every demandant  and freeholder de facto in spite of the true owner yet the definition in the  book though very imperfect savour often of that which original be a actual  seize in spite of the owner Littleton in define seize with a c where a man  enter into land or tenement where his entry be not congeable and oust he which  have the freehold c  The comment say every entry be not seize unless there be  a ouster of the freehold and   light b say seize be put a man out it in    light b that the judgement be not find upon the point here mention but upon  one very different videlicet as express by ld coke there that a entry by a  heir of the devisor and die seize will not by law take away the entry of the  devisee for if it shall it will be a bar to his right because the devisee have  only a title of entry like the case of a title of entry for breach of a  condition or mortmain in which and other like case no die seize and descent  will take away a entry burrow er p of seize and ever imply a wrong but  dispossession or ejectment be put out of possession and may be by right or  wrong seize be un personal trespass de tortuous ouster deal seize though the  term seize use happen to be the same the thing signify by that word as apply  to the two case of actual seize or seize by election be very different this  distinction of seize at election be make in the case of blunden v Baugh cro  car of which case we have see a manuscript report full than the print one the  three judge with who agree the four judge of the common plea argue and hold  that the lessee for year of the tenant at will be a seize at the election of  the original lessor for the sake of his remedy but never can be look upon as  the freeholder or a seize in spite of the owner or with regard to three person  the manuscript report say if a praecipe be bring against he he may say I be  not tenant to the freehold a variety of like case be put in cro c r to which I  refer in the manuscript report there be more when the easy specific remedy be  by assize where the entry be not take away theinjured owner may for his  benefit elect to consider the wrong as a seize so since a ejectment be become  the easy specific remedy he may elect to call the wrong a dispossession where  a ejectment be bring there can be no seize because the plaintiff may lie his  demise when his title accrue and recover the profit from the time of the  demise the entry confess be previous to make the lease but there be no real or  suppose reentry after the ejectment complain of if it be consider as a seize  no mesne profit can be recover without a actual reentry if the lessee for life  or year make a feoff the burrow lessor may still distrain for the rend or  charge the person to who it be pay as a receiver or bring a ejectment and  choose whether he will be consider as seize Metcalf on the demise of Kynaston  v Parry and other a case reserve at Salop assize that march for the opinion of  the court of exchequer who give judgement in it on the that of November be  this tenant in tail of land lease by his father to a second son for life a  under a power upon his father death receive the rend from the occupier as  owner and as if no such lease have be make during his whole life he suffer a  common recovery it be hold that this be only a seize of the freehold at  election and that therefore he can not make a good tenant to the praecipe and  the recovery be adjudge bad except the special case of fine j with  proclamation which stand entire upon distinct ground and the construction of  the stat of h c for the sake of the bar I can think of a case where the true  owner who entry be not take away may not elect by pursue a possessory remedy  to be deem as not have be seize the consequence of actual disseizins consider  as such continue law to this day the disseizee can dispose or devise the  descent take away his entry there be two case cite in the case of blunden v  Baugh material to this point pously v Blackman b r Trin James rot palmer which  be more full state in the manuscript report than in croak the case in effect  and operation be this tenant at will make a lease for year the original lessor  devise though the lease by tenant at will at the election of the original  lessor be a seize yet they adjudge his devise good because he have not elect  to admit himself seize and by make a will intimate the contrary another case  not in the report in cro James but cite in the manuscript be in the that of  Elizabeth sir Ambrose cone of his own head enter into land of sir William  Hollis and pay sir William afterward a certain rend claim to hold as tenant at  will and die his heir enter upon who sir William enter it a that and the case  cro car be case only of recovery of rend and not of a actual possession by the  feoff beside accord to the report of the case of Metcalf v Parry it be not  material whether the recovery be good or not for the lessor of the plaintiff  be lessee under a power in the settlement create the entail and therefore his  title do not at all depend on the invalidity of the recovery but single on the  question whether the power be well execute or not v cro James S c burrow er p  be adjudge that at the election of sir William sir Ambrose be a seize but as  sir William have not determine his election before the death of sir Ambrose  and enter upon his heir it be no seize and consequent the descent no bar to  his entry burrow in the case of pously v Blackman palmer it be say if a  disseizee devise and afterward enter the devise be good which dodderidge deny  and say there must be a new publication which seem right if there ever be a  seize for where a actual entry be necessary it will not make good a conveyance  make before as be hold in b r dom proc in the case of Berrington v Parkhurst  the actual entry can not support the lease make before yet in salk it be agree  the devise be good because he be seize ab beginning so as he may bring  trespass I e he never be seize at all by his election and he may make that  election without a entry he may bring his ejectment he may bring trespass  without a reentry if it be not for this doctrine of election what a condition  will man be in in the case of pously v Blackman there be no entry and after  much argument it be at last resolve unanimous by the whole court from the  inconvenience which will be introduce if a lessee by a secret contract with a  stranger can defeat the will of his lessor that the devise be good and in the  manuscript report where it be cite one point say to have be resolve be I that  the owner by make a devise show his election not to be seize I will now  consider whether James earl can be deem a good tenant of the freehold by seize  seize be a fact it be not find all the jury say be that soon after the  judgement in ejectment sir Robert enter and be in possession this must be take  to be a entry in consequence of the judgmentIt be so consider upon settle the  special verdict otherwise the defendant have no case for it be not find that  lady atkins be ever oust or quit the possession or that sir Robert ever be  seize take possession under a judgement in ejectment never can be a seize of  freehold suppose it a real proceedingthe termor of a disseizee may at the old  law recover against the seize he may recover against the feoff of his lessor  but he never can thereby become a seize of the freehold he never can be other  than a termor enjoy in the nature of a bailiff by virtue of a real covenant in  respect of the freehold his possession enure always by right and never by  wrong if the lessor have feoff it enure to the alienee if the lessor be seize  and burrow may enter it enure to the disseizee if his entry be take away it  enure to the heir or feoff of the seize who in that case have the right of  possession suppose the proceed as it be a fictitious remedy then in truth and  substance a judgement in ejectment be a recovery of the possession not of the  seize or freehold without prejudice to the right as it may afterward appear  even between the party he who enter under it in truth and substance can only  be possess accord to right prout law demand if he have a freehold he be in as  freeholder if he have a chattelinterest he be in as a termor and in respect of  the freehold his possession enures accord to right if he have no title he be  in as a trespasser and without any reentry by the true owner be liable to  account for the profit it be find that the ejectment be bring by sir Robert  atkins to recover the possession but it be not find that he claim the freehold  the title must now be take as in this special verdict therefore it appear he  have no right to the possession his feoff can be in no other condition than  himself he have a possession without prejudice to the right and can convey no  other he be not in as a particular tenant there be no privity of any seisin he  have only a naked possession but the case be still strong the true owner can  even elect to make a person in possession under a judgement in ejectment a  seize he can not bring a assize of novel seize the entry be not injust without  judgment but under authority may salk bunter v coke burrow er p of a court of  justice and lawful therefore not liable to punishment by fine as every seize  be the true owner may enter upon a seize but after a judgement in ejectment a  actual entry will not be permit if there have be any election in this case the  true owner elect not to be seize and recover by ejectment which if there have  be a seize will have purge it but there be still behind though it happen not  to be necessary a large ground upon which to determine this question and more  satisfactory because more Intelligible from the nature of a common recovery  now and a feoff to make a tenant to the praecipe with that view only burrow  the sense of wise man and the general bend of the people in this country have  ever be against make land perpetual unalienable the utility of the end be  think to justify any mean to attain it nothing can be more agreeable to the  law of tenor than a male fee unalienable but this bend to set property free  allow the donee after a son be bear to destroy the limitation and break the  condition of his investiture No soon have the statute de gift repeat what the  law of tenor say before that the tenor of the grant shall be observe than the  same bend permit tenant in tail of the freehold and inheritance to make a  alienation voidable only under the name of a discontinuance but this be a  small relief at last the people have groan for year under the inconvenience of  so much property be unalienable and the great man to raise the pride of their  family and in those turbulent time to preserve their estate from forfeiture  prevent any alteration by the Legislature the same bend throw out a fiction in  Taltarums case by which tenant in tail of the freehold and inheritance or with  consent of the freeholder may alien absolute public utility adopt and give a  sanction to the doctrine for the real political reason to break entail but the  ostensible reason from the fictitious recompense a hamper succeed time how to  distinguish case which be within the false reason give but not within the real  policy of the invention till at last the legislature applaud common recovery  and lend their aid by the act of h c h c pound h c Elizabeth c and late g c  which be a retrospective and declaratory law and seem to have restore the  original tenant to the praecipe before the statute of because buyer the earth  subinfeudations whereupon rend and service be reserve do not prevent the  praecipes lie against the freeholder of the seignory when common lease to  farmer for one or more life or life reserve rend come in use they for that  purpose resemble subinfeudations and ought not to prevent the praecipe be  bring against the owner of the freehold under which such lease be grant as the  legislature have for age avow the proposition we may now say that common  recovery be a mere burrow form of conveyance all necessary circumstance of  form and ceremony be take from its fictitious original the policy of this  species of alienation mean to take a middle way as to entail between  perpetuity and absolute property alienation be allow yet in such a shape as  necessary require deliberation and delay and they be only allow to be make by  tenant in tail in possession or by tenant in tail in remainder with consent of  the owner of the first estate for life the old son be restrain in the lifetime  of his father or mother or any other ancestor or relation seize for life under  a family settlement the Act of g proceed upon the party to a recovery have  power to suffer it sir Robert atkins the son have no right to suffer a common  recovery without the concurrence of the jointress any contrivance to do it  without her join be artifice and evasion if tenant in tail in possession be  seize though the praecipe be bring against the seize yet if he be vouch the  recovery shall bar because he have power to bar in Lincoln college case   the  judge support the collateral warranty of Sibil because she and Edward have  power to bar Pigot of common recovery p Leon a this be not so as to the  remainder and reversion big burrow er p in Jennings case   the recovery be  support because the party have power by parity of reason this recovery ought  not to be support because the party have no power if it be the law must be  overturn every remainderman in tail may easy get a naked possession and make a  secret feoff the plan of marriage and other family settlement be to limit a  remainder to the first and every other son in tail the negative which the  father now have upon the old son suffer a common recovery be the very mean and  consideration of get the estate resettle upon the marriage of the old son by  this method the moment he attain to the age of year he may set his father at  defiance suffer a common recovery and bar all the rest of the family this  consequence alone in a case unprecedented be a sufficient objection burrow  when a termor after the that of h that make a feoff and levy a fine with  proclamation and insist upon five year nonclaim the judge with strong sense  say though a feoff by tenant for life or year or at will be a seize it shall  not operate as a seize to enable the termor himself to bar the inheritance by  a fine with proclamation accord to the that h c for say they it be never the  intent of the maker of the Act that those who can not levy a fine shall by  make a estate by wrong and fraud be enable to bar those who have right for if  they themselves without such fraudulent estate can not levy a fine to bar they  who have the freehold and inheritance certain the maker of the that of h c do  not intend that by make of a estate by fraud and practice they shall have  power to bar they and such fraudulent estate be as no estate in the judgement  of the law so say I in the present case it be never the intent that those who  can not suffer a recovery shall by make a estate by wrong and fraud be enable  to bar those in remainder or reversion who have a right for if they themselves  without such fraudulent estate can not suffer a recovery to bar those in  remainder and reversion certain the framer of this qualify species of  alienation do not intend that by make a estate by fraud and practice they  shall have power to bar they and such fraudulent estate be as no estate in the  judgement of the law the judge then put many case where a recovery in dower or  other real action a remitter to a feme covert or a infant a warranty a sale in  market overt the king letter patent a presentation a administration in short  all act temporal and ecclesiastical shall be avoid by covin and from thence  argue that a fine which the party have no power to levy direct shall not be  support indirect by covin so argue in the present case a common recovery which  the party have no power to suffer direct shall not be make good by wrong and  fraud in the spirit of the maker of the g I say the party to this recovery  have not power to suffer it therefore it be substantial bad this be not the  case of a feoff to a three person but for his own benefit it be in effect to  the use of sir Robert the wrongdoer himself the law consider a feoff to the  intent to be tenant to the praecipe as a mere instrument for one purpose of  form only his wife shall not be endow his statute or judgement shall not  affect the land if he have a term for year it shall not merge let I appeal  burrow then to the old authority in those time when the solemnity and  notoriety of feoff and the feudal veneration in which they be hold give they  all that wonderful efficacy we read of can a man by his own injurious feoff  have acquire a advantage to himself Littleton shall answer he tell we what be  establish long before he write light if a seize feoff his father in fee and  the father die seize of such estate by which the land descend to the seize as  son and heir c in this case the disseizee may well enter upon the seize  notwithstanding the descent for that as to the seize the seize shall be  adjudge in but as a seize notwithstanding the descent because sharing in sin  after the statute de gift tenant in tail in remainder with the concurrence of  the freeholder may make a voidable alienation by discontinuance but he can not  acquire to himself that privilege by a injurious entry and feoff he ill  remainder in tail seize tenant for life and make a feoff and die without issue  and the tenant for life die he in reversion may enter it be no discontinuance    light a b it be no seize of the reversion if remainderman for life burrow er  p seize the immediate tenant for life after the death of the immediate tenant  he be in as tenant for life neither shall a reversioner by a injurious entry  upon the tenant for life be in respect of stranger allow to transmit to his  heir the privilege of descent if the reversioner seize tenant for life and die  seize the descent shall not take away the entry of a stranger hob from the  whole we may conclude if before the introduction of common recovery as a  conveyance this question have be agitate in a adversary real action upon a  plea that earl be not tenant of the freehold it will have be adjudge from the  law and artificial learning of tenor that he can not be so consider if the  question have be whether tenant in tail in remainder shall by such injurious  entry and feoff require a benefit to himself to the prejudice of his  reversioner it will have be adjudge from eternal principle of justice that a  act find in wrong shall not by virtue of the crime itself become legal for the  author advantage as it be now agitate when recovery be establish as a species  of alienation the only question be whether the rule of law which require the  concurrence of the owner of the first estate for life shall be overturn it be  better to subvert the rule direct than suffer it to be do by a secret  injurious entry and feoff which can be prevent and which the owner may never  hear of burrow there be no injury or wrong for which the law do not provide a  remedy but if this stratagem shall prevail redress must follow too late unless  the entry of the tenant for life shall avoid the recovery if it will there be  a end of the present question for the jointress enter and be entitle to the  profit from sir Robert atkins as a trespasser ab beginning in every light and  upon every ground of law this recovery be bad as there be no bar to the right  of the lessor of the plaintiff the second general question be whether the  lessor of the plaintiff be by the statute of limitation bar from recover in  this ejectment this point be certain not insist upon at the trial and  therefore the special verdict be not adapt to it the abstruse learning upon  which the validity of the common recovery depend may engross the whole  attention at the trial and the special verdict have no fact which easy may  have be find particular applicable to a objection from the statute of  limitation may occasion the question not have be make at the bar till the last  argument the point however be certain open upon this special verdict a  ejectment be a possessory remedy and only competent where the lessor of the  plaintiff may enter therefore it be always necessary for the plaintiff to show  that his lessor have a right to enter by prove a possession within twenty year  or account for the want of it under some of the exception allow by the statute  twenty year adverse possession be a positive title to the defendant it be not  a bar to the action or remedy of the plaintiff only bus take away his right of  possession every plaintiff in ejectment must show a right of possession as  wellas of property and therefore the defendant needs not plead the statute as  in the case of action a the question then be whether it appear upon this  special verdict that the lessor of the plaintiff may enter when he bring this  ejectment b on the that of November sir Robert atkins die without issue male  burrow on the that of October lady atkins the jointress die then accrue the  title of entry of the lessor of the plaintiff his only excuse for not enter be  that he be prevent by the say lease of the first of may to the three  Dacres  That upon the death of Thomas Dacres the survive lessee on the d of  July a new title of entry accrue upon which he enter on the that of December  and bring this ejectment three answer be give any one of which if well find be  sufficient a this be not necessary for twenty year possession be a good title  in ejectment for a plaintiff as well as for a defendant salk pl ld raym let  the right of property be where it will salk b see dom proc that the question  put to the judge be whether sufficient appear by the special verdict in this  cause to prevent the lessor of the plaintiff by force of the statute of  limitation of the first of James the first from recover in this ejectment  burrow er p saint that the say lease be absolute void and of no effect d if  good it determine by the estate tail be spend by the express tenor of the  demise d if subsist yet upon the extinction of the estate tail it be a trust  to attend the inheritance in the lessor of the plaintiff and make part of his  title deed therefore can not stop the statute run to protect a adverse  possession nor give he any new right of entry first that the lease be void sir  Robert atkins the father be only tenant for life can by virtue of his  ownership make no estate to continue after his death this lease therefore  after his death can only be support by his power if it be make pursuant to it  whether it be make pursuant to his power be the question the limitation and  modify of estate by virtue of power come from equity into the commonlaw with  the statute of use the intent of party who give the power ought to gain every  construction he to who it be give have a right to enjoy the full exercise of  it they over who estate it be give have a right to say it shall not be exceed  the condition shall not be evade it shall be strict pursue in form and  substance and all act do under a special authority not agreeable thereto nor  warrant thereby must be void of all kind of power the most frequent be that I  to make lease for the encouragement of farmer to occupy stock and improve the  land it be necessary they shall have some permanent interest unless the owner  of the estate for life be enable to make a permanent burrow lease he can not  enjoy to the best advantage during his own time and they who come after must  suffer by the land be untenanted out of repair and in a bad condition the plan  of this power be for the mutual advantage of possessor and successor the  execution thereof be check with many condition to guard the successor that the  annual revenue shall not be diminish nor those in succession or remainder at  all prejudice in point of remedy or other circumstance of full and ample  enjoyment there be two method of lease in common use in this kingdom at the  best rend and upon fine which as the life or lease drop be consider among the  annual profit this power be always adapt to both it be insert in almost every  strict settlement of every kind it be insert in the great deed of the that of  June and give indiscriminate to sir Robert the father sir Robert the son and  lovis his wife the nature and view of a power so usual give be well understand  and court of justice have always look with a jealous eye to see that the  condition in favour of the next taker be pursue not literal only but  substantial it be not sufficient that the ancient rend be reserve it must be  reserve with all the beneficial circumstance if Payable before at four it can  be reserve at two payment Lord Mountjoys case   b the whole rend must be  Payable annual during the whole term in that case it be hold that less can not  be reserve even to the lessor himself during his own life one of the reason in  elmer case   show the rend must be Payable annual during the term in the case  of lady Charlotte Orby all v lady Mohun Vernon Lord Cowper holt and Trevor all  three hold clear that a lease reserve the best rend though good against a  owner of the inheritance be void under a power and Cowper and Trevor hold that  reserve the ancient rend where land have be usual demise though good and  certain enough by reference against a owner of the inheritance be void under a  power because it put the remainderman under difficulty in avow the intent be  say they that the tenant for life in possession may lease so it be on the  other hand that the revenue shall not be diminish but the ancient rend at  least reserve and in such beneficial manner as may with certainty and without  any difficulty be recover burrow the question here be not say they whether the  lease be void for incertainty as between the lessor and lessee but whether all  requisities be observe and such beneficial clause and reservation as ought to  have be for the benefit of a three person the remainderman in the case of the  earl oh Cardigan v Montague that June a decretal order burrow er p on the  master report the duke of Montague tenant for life without impeachment of  waste have power to lease reserve ancient rend where usual demise and best  rend where not usual demise he make twentyfour lease the master report as to  many of the lease which he report bad be submit to as where ancient covenant  to grind at mill or to pay land tax be not in the new lease where some part  not within the power be include in the lease where many manor be include in  the lease reserve a sum certain as the best rend which lie the remainderman  under difficulty to find out whether it be the be rend or not as to five of  they which the master report to be good exception be take their validity turn  upon this case the word in the power be reserve ancient usual and accustom  rend heriots boon and service in the former lease the tenant covenant to keep  in repair that covenant be omit in this the Lord chancellor be of opinion that  that covenant be a boon and beneficial to the remainderman and hold these  lease void for want of it he take some day to consider and declare he be clear  upon the argument but take time because there be no case in point the more he  think of it the more he be convince the principle he rest upon be that the  estate must come to the remainderman in as beneficial a manner as ancient  owner hold it a I have go so far at large into the general doctrine not from  any difficulty but because the point be of so much consequence to the lessor  of the plaintiff for this write of the first of may have not colour enough to  make a question saint it be no lease at all the very definition of a lease be  a contract between landlord and tenant by which both be bind in mutual  stipulation a sale and lease be define to be the same species of contract a  sale can be unless somebody agree to pay the price nor can there be a lease  unless somebody agree to hire and to pay the rend this write purport to be  such a contract it be a indenture which imply reciprocal instrument tally one  with the other it burrow profess be make by sir Robert atkins on the one part  and the three Dacres on the other part but it be not the Dacres be not bind  they never execute this or any counterpart it do not appear they know or  consent to the make of it livery of seize be immaterial a lease by virtue of a  power take effect out of the settlement that give the power but John Dacres  who give the letter of attorney to take livery die in Robert die in sir Robert  atkins the father live till suppose at his death a year a beneficial rend  those in remainder can not demand it Thomas Dacres have not execute the lease  he have not accept it he never have enter under it no distress can be take  from he no action can be bring against he one man can oblige another to be his  tenant at a high rend without his consent this be so plain that on the part of  the plaintiff they have argue that Thomas Dacres be bind by acceptance three  way saint because livery of seize be take in the name of John Robert and  Thomas answer Thomas give no authority so to do it do not appear that he know  of it but the mere take livery of seize if he never enter or occupy will not  be sufficient to charge he with the rend reserve d in the ejectment bring in  Hilary term a demise be lie from Thomas Dacres as well as the jointress and  the plaintiff have judgement to recover separate boundary answer the two title  be inconsistent so there can not be real a recovery upon both but t e  judgement pursue the declaration and be mere form it do not appear that Thomas  Dacres know his name be make use of and he never enter or take possession  instead of certain see hereon Eq Abr case vin power a pl cro car hetl new Abr  vern by in case of lease make pursuant to Henry Danv a this case of earl of  Cardigan v Montague be cite in bro by which it appear that the case be remove  into the house of lord after Montague be become ld Beaulieu and there in it be  say by counsel that the decree of the lord be disapprove by Lord Thurlow but  queen as to the citation ib this be wrong as appear from Bac burrow er p d  that acceptance shall be presume and it be compare to grant and Thompson v  leech be cite V lev m answer the ground of Thompson v leech and of all the  case there put be that a gift import a benefit and consent to receive a bounty  may fair be presume till the contrary appear but the offer of land to a  substantial man at a rack rend do not import such a benefit as nobody in his  sense can refuse and here there be no room to presume for the contrary appear  Thomas burrow Dacres dissent during his whole life and never take possession  the contrary appear too from the write itself it never be the intent that the  Dacres shall take possession or pay rend it be to be a conveyance only of the  ideal freehold which may nonsuit the remainderman in case he bring a ejectment  against three person or prevent his suffer a recovery but never can be any  security to he for his rend it be immaterial whether a owner of the  inheritance can convey all ideal freehold to delay the tenant in tail claim  under his grant from suffer a recovery the question here be whether it be that  usual husbandry lease reserve a rack rend which be intend by every power of  lease it be very clear that none of the lessee be bind by this write more  especial that Thomas Dacres be not but I go further sir Robert atkins the  nominal lessor be not bind by it the deed never be out of his own possession  the declare intent prove it a trust for sir Robert himself his will under  which the lessor of the plaintiff claim aver it to be a trust and devise it as  such it be no objection to a lease under a power that it be in trust for he  who execute the power provide the legal tenant be bind during the term in all  requisite covenant and condition but here at the death of sir Robert the  father those in remainder have no tenant to resort to and the nominal tenant  never do in fact enter nor can either in law or equity ever have be compel to  enter or pay one farthing rend so that this write call itself a indenture and  purport to be a contract be waste paper only by which nobody ever be bind but  suppose it have be execute by the three Dacres it can not be support as a  lease within the meaning of the power upon a variety of plain objection in  respect of the premise the rend and the remedy saint as to the premise demise  it comprise too much and lie the remainderman under difficulty to know whether  the best rend be reserve it extend to thing out of which no rend can be  reserve as tithe rend of assize rend of customary tenant commons feed and land  in the several tenor of particular person the condition of the power be that  there shall be no term exceed three life in be at the same time yet the demise  extend to all and every the rend reserve upon any lease or grant burrow dly as  to the rend reservedthe power require I the best rend that can be reasonable  get to be reserve Payable during the term there be no covenant for payment  under a be reservation it can not be Payable till entry and therefore in fact  may never be Payable during the term it be not find to be the best rend dly as  to the remedythere be no covenant to pay the rend the lease may be assign to a  succession of beggar there be no clause of reentry the ground may lie  unoccupied without any or not sufficient distress upon it so that the  remainderman can neither have his rend nor his land there be no counterpart a  unusual omission and very prejudicial therefore the lease can not have be  support if it have be execute by the three Dacres which be not the case every  fraudulent unfair prejudicial execution of such a power in respect of those in  remainder be void at law if the lease be a void execution of the power against  all claim under the settlement it can be make good against the reversion in  fee whereof sir Robert atkins the father be seize either by virtue of the  livery or by way of estoppel suppose the three Dacres to have execute because  a interest will have pass during the life of sir Robert atkins the father and  there be no estoppel where any interest passes and to make it operate by  virtue of the livery out of the reversion in fee will be contrary to the whole  intent of the deed plain express which bring I to a second answer give burrow  er p d answer suppose this pocket undelivered grant of the ideal incorporeal  freehold a good execution of the power they have argue that it determine with  the estate tail that the only cause of the grant be to preserve the reversion  during the estate tail must qualify the grant and amount to a limitation that  there be no technical form of word necessary to express a contingency upon  which a estate for life may soon determine the deed may have say express if  the heir male of sir Robert atkins the son continue so long or that the lease  shall determine if during the life the estate tail shall be spend that the  intent of the deed plain express be tantamount burrow d answer suppose it to  subsist it be as a trust and devise as such to attend the inheritance of the  lessor of the plaintiff which come into possession the that of October his  title and right of entry then accrue this lease be one of his muniment a mere  weapon in his hand and it will be go a great way to say such a form shall take  from a adverse possession the benefit of the statute but as we be all clear  that at the trial a surrender of such a lease may and ought to be presume to  let in the statute of limitation the special verdict here not have find such  surrender we can come at the justice of the case in that shape it be  unnecessary to go into this point or the former and it will be very improper  unnecessary to do it if the Dacres have no estate by virtue of this demise  upon the that of October then this ejectment be not bring within twenty year  after the lessors title accrue and no fact be find to excuse he within any of  the exception therefore we be all of opinion that there shall be judgement for  the defendant a writ of error be bring in the house of lord and come on upon  Thursday that January the counsel agree and be allow to argue the last point  for the judgement of the house first because if their lordship shall be of the  same opinion with the court of king bench that this ejectment be bar by the  statute of limitation it will be quite unnecessary to go into the first  question all the judge be order to attend to who after the argument at the bar  be over the house propose the follow question videlicet whether sufficient  appear by the special verdict in this cause to prevent the lessor of the  plaintiff by force of the statute of limitation of the saint of king James the  first from recover in this ejectment whereupon the Lord chief justice will  have confer with the rest of the judge deliver their unanimous answer that  sufficient do appear by the special verdict in this cause to prevent the  lessor of the plaintiff by force of the statute of limitation of burrow the  first of king James the first from recover in this ejectment then the  judgement of the court of king bench be affirm with cost