case blunden against baugh Hilary term car roll a be seize of a estate in fee  permit his son to enter into the land and to occupy they as a tenant at will  the son afterward lease the land by indenture for twentyoneyears render rend  the father may at his option construe this demise to be a seize or not a seize  S C Jones latch roll ab   light a note b a note a Com dig palmer Powel on  count burr burr Cowp error of a judgement in the common plea Baugh bring a  ejectment of land in blechingley of the demise of Charles earl of Nottingham  against blunden upon not guilty plead a special verdict be find that Elizabeth  Charles Lord Howard Lord admiral be seize of the say land in tail by indenture  covenant in consideration of marriage betwixt sir William Howard his old son  and heir and Elizabeth daughter and heir of Lord saint John to suffer a  recovery of those land to the use of the say William and Elizabeth and the  heir male of the body of the say William with diverse remainder over that the  marriage take effect and the say William enter by the assent of his father and  occupy at his will and in James by indenture demise that land to Thomas  Humphrys and John Humphrys for twentyone year render rend they enter and be  possess prout law demand and be so possess the say Charles then earl of  Nottingham and the say William then Lord Effingham by indenture covenant with  sir Robert dorm and other for that the say indenture of Elizabeth be not  execute for the performance of the assurance and use comprise therein to levy  a fine of those land to the use of the say William Lord Effingham and  Elizabeth for a jointure for the say Elizabeth and to the heir male of the  body of the say William the remainder over as in the indenture c which fine be  levy accord and to the use in the a see will c and Ann c croak car er p say  indenture mention that in James the say William Lord Effingham die without  issue male of his body and John Humphrys die and in James Thomas Humphrys be  seize or possess croak car prout law demand by indenture enrol within six  month in consideration of a competent sum of money bargain and sell the say  land to Charles Lord Effingham son and heir apparent to the earl and his heir  Charles earl of Nottingham die Charles now earl of Nottingham be his son and  heir enter blunden the defendant by the command of the say Elizabeth enter and  claim it as her jointure and Charles dow earl of Nottingham son and heir of  the say Charles earl of Nottingham the Lord admiral enter and make a lease for  three year to the plaintiff who enter and the defendant as servant of the say  Elizabeth and by her command oust he and if super totan means the court shall  adjudge for the plaintiff they find for the plaintiff if otherwise for the  defendant and they find the say Elizabeth to be yet alive after argument at  the bar in the common plea and at the bench it be by the opinion of Richardson  chief justice Hutton and Vernon adjudge for the plaintiff against the opinion  of Harvey justice who argue strong for the defendant and hereupon a writ of  error be bring and the error assign only in the matter of law and it be  diverse time very well argue at the bar by Littleton recorder of London and  sergeant Brampston for the defendant in the writ of error and by calthrop and  sergeant henden for the plaintiff and afterward by all the justice of the king  bench seriatim and Jones Berkley and myself hold that the judgement be  erroneous the main question be whether by any of these act there be a seize  commit to Charles earl of Nottingham not volens and if there be a seize who  shall be the seize and tenant to the freehold and to the first Jones Berkley  and myself hold that the law will not impute nor construe it to be a seize  unless at the election of Charles earl of Nottingham when as none of the party  intend it to be a seize nor to oust he of the possession for as   light b  define a seize be when one enter intend to usurp the possession and to oust  another of his freehold and therefore to seek be a judge quo mind hoc to make  why be enter and intrude and it be at the election of he to who the wrong be  do if he will allow he to be a seize or himself out of possession and  therefore if one receive my rend it be at my election if I will charge he with  a seize by bring a assize or other action or have a account and if a infant  make a lease for year render rend and the lessee enter it be at the election  of the infant to charge he in a assize or to bring debt for the rend or to  accept the rend at his full age as Edward and other book be so it be if one  enter claim as guardian in soccage or by nurture where he be not it be at the  election of the infant to bring a assize or to charge he as guardian thereby  admit he to be in without wrong as Edward Edward account Henry and many other  book be and tenant at will be at the will of both party and the will shall not  be determine by every act vide croak car Henry Kelway Henry so where a feme  lessee at will take husband or a feme make a lease at will and take husband  although the feme have put her will in her husband yet it shall not be say a  determination without the election of the lessor or husband to the contrary  Henry dyer lessee surrender and yet occupy he be no seize but at the pleasure  of the lessor ass where a man make a feoff and continue in possession and the  common case where a copyholder make a lease for year not warrant by the custom  yet it be no seize and the law account it a good lease betwixt lessor and  lessee and all estranger and to that purpose be cite Hilary James rot Streat v  Virrall ejection strong bring upon such a lease and upon special verdict  adjudge for the plaintiff that it be a good lease against all butt the lord  and they all rely upon another judgement in the point betwixt Powsley v  Blackman a where one car bargain and sell land by indenture enrol to Bertram  upon condition that upon payment of three hundred pound at the end of three  year it shall be void and that in the interim the bargainee shall not meddle  with the profit of a cro James croak car er p the land the bargainer occupy  and make a lease for five year and at the day do not pay the money the  bargainee do not enter but the bargainer occupy it he devise that land and it  be adjudge a good devise but if he have be seize the devise have be void and  here it shall not be intend that the son intend to seize his father but that  the lease be make by the assent of the father also the party to who the lease  be make do not claim any freehold but to have the lease only and to pay his  rend and pay the rend accord so there be no intent in any of the party to make  a seize then the law shall not construe it to be a seize birth against the  will and hereby it follow that the freehold remain in the earl of Nottingham  until the fine levy by he and his son and so the use well raise and the  jointure well assure second admit there be a seize commit by these act the  question be who be seize and tenant of the freehold?And Jones Berkley and  myself hold that William Lord Effingham who make the lease be the seize and  tenant for when tenant at will take upon he to make a lease for year which be  a great estate than he may make that act be a seize and by this lease for year  make and the lessee enter and pay the rend unto he and he accept thereof be be  in as lessee and the lessor be the seize and have the reversion expectant upon  this lease and this lease betwixt they be a interest derive out of the  inheritance gain by this seize for if a lessee for year make a feoff although  it be a seize to the lessor yet it be a good feoff betwixt they de facto  though not de jure and the feoff be in the per ad Edward short catalog Edward  short catalog Henry short catalog f n b Henry per fineux tempt Edward  Counterplee de voucher   light a and warranty may be annex to such a estate  upon which he may vouch as Edward and if such lessee for year or at will make  a gift in tail or a lease for life that create a good lease or a good croak  car gift in tail among themselves and all other beside the first lessor and as  to he they be both disseizors as it appear by the book Edward Edward S issue  Edward issue Edward feoff et faits so it be where a lessee at will make a  lease for year especial by indenture it be a good lease between they and debt  lie for the rend and the lessee shall not avoid it but by a ouster by the  first lessor as Hen S and Jones cite spark v spark a where lessee at will make  a lease for year and he be oust by a stranger bring a ejectment and recover  and betwixt Streat and Virrall ut above and so it be resolve in this court  Elizabeth that a ejection strong lie upon a lease make by a copyholder not  warrant by the custom against any stranger and the yearbook of Edward be  direct to the point so here when lessee for year enter accord to the lease and  pay his rend the freehold betwixt they shall be in William Lord Effingham who  make the lease and not in Humphrys who be only lessee and then the fine levy  by the earl of Nottingham and his son convey well the freehold and the use be  well raise upon this fine and the jointure well settle and then during her  life the earl of Nottingham have no title to make a lease wherefore the  judgement ought to be reverse and so much the rather for the great mischief  which will ensue if one who have a tenant at will who make a lease for a small  time and the first lessor not know thereof levy a fine for a jointure for his  wife or to perform his will or to other use c if he shall be adjudge seize and  as a disseizee to levy a fine which shall tend to the benefit of the lessee  for year and be adjudge a seize against his intent or knowledge as in this  case be pretend many shall lose their inheritance in many manor be diverse  tenant at will where the father be tenant at will and after he the son enter  and occupy at the will of the lord and be so repute and the lord allow they  and never account they as disseizors if such tenant at will make underleases  for a year or for half a year if the lord of those manor levy fine of those  manor and this shall tend to the benefit of the underlessees who shall be  repute to be disseizors without the intent of any of the party many lord shall  hereby be disinherit whereupon they conclude that Humphrys the lessee be  neither seize nor tenant but only William Lord Effingbam and be be the seize  and tenant and the fine levy by a cro Elizabeth hetley more croak car er p  Charles earl of Nottingham and William Lord Effingham his son be a good fine  and the use well raise whereby Elizabeth the wife of the say William Lord  Effingham have good title and the defendant under her wherefore the judgement  ought to be reverse but Richardson chief justice argue to the contrary and  continue his former opinion that Humphrys be the seize and be tenant of the  freehold at the time of the fine levy and then the fine by the earl of  Nottingham be a disseizee and his son William Lord Effingham adjutor to the  seize shall inure to bar the right of the earl of Nottingham and for the  benefit of the say Humphrys accord to the opinion in   buckler case and that  he be a seize to the earl of Nottingham not at his pleasure but de unavoidably  for a seize be a tortuous ousting of any one from his croak car seize and here  this take of the lease by Humphrys from Lord Effingham tenant at will and his  enter by colour of the say lease be a seize and here be a entry usurpand law  another without consent of the earl of Nottingham and as tenant at will may  not grant his estate as Henry pl be no more may be make a estate and the earl  of Nottingham have no election to say it be no seize but be agree to the case  where a infant make a lease for year reserve rend and the lessee enter the  infant have election to allow he to be his tenant or to be a seize which be  most for his advantage so where one enter and claim as guardian and occupy the  infant may allow he either seize or accountant which shall be for his best  advantage second he hold that Humphrys be the sole seize and tenant of the  freehold for he by his entry do the sole act which make the seize for the  lease for year be mere a void contract and when one enter by colour of a void  conveyancer he be the seize as in Crofts v howel a where a guardian assign  dower to a feme who be not dowable and she enter by her entry she be a  disseizeress Edward pl if one enter by colour of a void extent it be at the  peril of he who enter and take the profit to see by what right be enter and he  deny that the make of a lease for year be either a express or imply command to  enter or make a seize and he deny that the make of a lease for year have gain  the reversion to the lessor but if lessee for year or at will make a lease for  life or a gift in tail he by make livery transfer the freehold and gain to  himself the inheritance but by a nude and void contract he can gain the  reversion whereupon he conclude that Humphrys be the seize and tenant and that  the fine inure to the benefit of Humpbrys and not to the limitation of the use  in the indenture because none of the party have anything in the land at the  time of the fine levy and that the judgement ought to be affirm but afterward  for the reason of we three the judgement be reverse note sir Robert heath  chief justice of the common plea Crawley justice baron Denham and baron Trevor  agree with this judgement in the king bench and conceive that it will be very  mischievous if it shall be adjudge otherwise but sir Burgundy davenport seem  to doubt whether the lessee for year ought not strict to be take for the seize  and tenant