cclxxiii sir Francis ENGLEFIELDS case vide this case report by cook in rep and  by Popham the case to recite at large be this sir Francis Englefield knight be  seize in fee of the manor of Englefield in the county of Berks and of diverse  other land in the first year of queen Elizabeth depart out of the realm by  licence of the queen for a time and remain out of the realm in the part beyond  the sea above the time of his licence whereby Leonard the queen by her  warranty under her privy seal require he to return upon which he be warn but  do not come whereupon the queen seize his land for his contempt after which  the statute of fugitive be make Elizabeth upon which by commission find upon  this statute all his land be new seize and afterward Elizabeth by indenture  make between he and his nephew and seal by the say sir Francis at Rome the say  sir Francis covenant with his say nephew upon consideration of advancement of  his nephew and after consideration to raise a use that he and his heir and all  other seize of the say manor c shall hereafter stand and be seize of they to  the use of himself for the term of his life without impeachment of waste and  afterward to the use of his nephew and of the heir male of his body and for  default of such issue to the use of the right heir and assign of the nephew  for ever with a proviso that if the say sir Francis shall have any issue male  of his body that then all the say use and limitation shall be void and that  the say manor c shall be as before afterward the say sir Francis be attaint of  treason suppose to be commit by he Elizabeth at l in birth beyond sea and the  attainder be first by outlawry and afterward by Act of parliament Elizabeth by  which the forfeiture of the say condition be give to the queen and at the same  parliament it be enact that all and every person and person which have or  claim to have any estate of inheritance lease or rend they not enter of record  or certify into the court of exchequer of into or out of any manor land c by  or under any grant assurance or conveyance whatsoever have or make at any time  after the beginning of her majesty by a person attaint of any treason mention  in the say Act after the day of Feb Elizabeth or within two year next ensue  the last day of the section of the say parliament shall open Leonard er p show  in the court of the say exchequer or cause to be open show the same his or  their grant conveyance or assurance and there in the term time in open court  the same shall offer and exhibit upon his or their oath affirm that they have  not the same nor can come by it or that it be never put in write then the  effect thereof to be enter and enrol of record or else every such assurance  shall be void and of none effect to all intent and purpose save to every  person and person other than the party and privy to such conveyance and such  as shall not exhibit the say conveyance accord to the true meaning of this Act  all such right c whereupon the say Francis the nephew the day of November  Elizabeth n his own person affirm upon his oath that he have not he say  conveyance nor know not how to come by it but deliver the effect of the  assurance omit the time when it be make otherwise than that it be Leonard make  after the beginning of the queen reign and before the treason commit by sir  Francis and before the statute of Elizabeth against fugitive and omit also the  last clause of the tender of the king and this he offer open in the court of  the exchequer the same day after which the queen be move with the say  condition make a warrant by letter patent under the great seal date of Mars  Elizabeth to Richard Broughton and Henry bourcher esquire for her and in her  place and stead to deliver or tender to the say Francis the nephew a ring of  gold to the intent to make void the use and limitation limit by the say  indenture and to return their proceed upon it into the court of exchequer  whereupon they make a tender of a ring of gold to the say Francis the nephew  the day of November Elizabeth which he refuse to receive and the two year  after the say session of parliament be the day of march Elizabeth and the say  Broughton and bourcher return all this that they have do as before with their  commission out of the exchequer and this case be a great case and consist of  many doubt and question be often argue and this term sure Elizabeth it be  argue by more of counsel on the part of Francis Englefield and be say when sir  Francis Englefield covenant to stand seize to the use of himself for life c  this be not any new use but part of the ancient use which be in sir Francis  before for there be no consideration to raise a new use to himself for a  consideration be a cause or a occasion meritorial require a mutual recompense  in fait or in law dyer Elizabeth b mutual of each part and here this ancient  use remain for sir Francis can simul semel agree and suffer and here be a bare  covenant without any consideration on the part of sir Francis which see dr and  student cite by Br feoff to use a man can limit a use to himself to be a new  use upon a estate execute as upon a feoff but it shall be the ancient use much  less upon a covenant and that be milfords case pasch Elizabeth rot in the king  bench where a use limit to the right heir of the feoff be hold the ancient use  quod vide also in the case of the earl of Bedford and there be no difference  between our case and the say case unless in the say case the use be limit in  the end and in our case in the beginning of the conveyance but perhaps it will  be object that the particular estate shall be good for necessity for to  support the estate limit in the remainder which be limit upon good  consideration for otherwise the remainder shall be distrain that be not any  reason for that conceit in Bayntons case in blow Com Elizabeth have be  overvoted to be no law in the case of the Lord paget in this court very late  and be say that the condition conceive in the proviso be not give to the  Leonard king by the commonlaw in case of escheat the party come in the post  but a condition run in privity and although the statute of h give to the king  condition yet it do not give the performance of they or ability to the king to  perform they and there be three reason wherefore this condition can pass to  the king there be a condition in the proviso which precede the condition of  the tender videlicet if the say Francis my nephew be give to intolerable vice  then if the say sir Frances deliver or offer c and in the whole plead it be  not aver that the nephew be give to intolerable vice therefore the precedent  condition not be perform the second condition be not ripen nor in season the  substance of this condition consist in the will and pleasure of sir Fr  Englefield therefore it can be give to the queen the prejudice which shall  come to Francis the nephew if this condition shall come to the queen vide Br  Temps h a foundership can escheat or be forfeit by Leonard er p attainder of  felony or treason for it be a thing annex to the blood which can be separate  and he say also that the condition be go before that tender for the conveyance  by which the condition be grant be make void by the Act of h cap by which it  be enact that every person within two year after the last day of this session  shall open show and bring forth into the exchequer his conveyance and there in  the term time in open court shall exhibit the same to be enter and enrol of  record and here the end of the session be such that all the term of the say  two year be pass before the tender make by the queen and although the two year  be not pass yet all the term be pass and the conveyance ought to be show in  term time therefore the true time be incur before the tender and then the  conveyance be void and by that the condition go when the queen be tenant for  the life of sir Francis and make a lease for year and afterward by the  condition have the inheritance if now she shall avoid the lease make by her  when she be tenant for life a seize make a lease or grant a rentcharge and  afterward the disseizee release unto he he shall not avoid his own act a man  seize in the right of his wife make a lease for year have issue and so be  entitle to be tenant by the courtesy the wife die he shall not avoid his lease  feoff and feoff upon condition join in a lease for year the condition be  perform on the part of the feoff he shall not avoid his lease and the  prerogative of the queen shall not alter the matter against level ground good  as to the statute of Elizabeth t be not the intent of that to avoid estate  claim for or by the queen for the estate be make for the benefit of the queen  as to the word of the statute every person or person which have or claim to  have c the queen be not Leonard within the word if a statute ordain attendance  or restraint of any liberty which be before at the commonlaw there the queen  shall not be within it as to attendance the queen be not bind to make claim  upon a fine levy as to regrant the queen be not bind by the statute of  Westminster because buyer the earth also where matter of penalty be impose  also here be a oath to be take c the queen be tenant for the life of another  leas the wood and grant to the lessee power to cut the wood and convert they  to his own use now if after the inheritance come to the queen if the queen may  impeach her grantee true the property of the wood and tree be in the queen at  the time of the grant and although the inheritance come to the queen afterward  yet the same shall not overthrow the first interest of the grantee lessee for  life or for year before the statute of Gloucester can not be impeach for waste  therefore as I conceive the property of the tree be in he for there be no  remedy for they against he see the reason of that in dr and student quasi the  property of the tree pass to the lessee with the demise which shall be take  strong against the lessor if the lessee cut the tree the lessor shall not have  trespass against he nor detinue for the tree lessee without impeachment of  waste cut the tree and leaves they upon the land and die his executor shall  have they and not the lessor the lessor grant all men boscos arbores urge  nothing passes for they pass to the lessee if they be not except the lessor  against his own lease cut the tree without the agreement of the lessee  trespass lie h the heir be in ware cut tree in his land in the possession of  his guardian who bring a action against the heir it be adjudge maintainable  although the freehold be in the heir Egerton solicitor to the contrary admit  the use in sir Francis be the ancient use yet it be but for life and then when  the queen have the estate of sir Francis make a lease for year with the grant  of the wood the say lease be void for the queen be deceive in her grant sir  Francis be punishable for waste therefore the queen have his interest ought  not in justice to have cut the great wood and it be to be presume that if the  queen have know the smallness of her estate she will not have make so great a  lease nor such a grant of the wood the king seize of land in his own right  recite by his letter patent that he have it by attainder of I S give the same  to another the gift be void the king licence one to appropriate a advowson  without be inform that the same be hold in chief it be void a licence to alien  whereas in truth the land be hold in tail the reversion or remainder in the  king be also void and here in our case the queen have but a particular estate  for the life of another Leonard and here out of that petty estate be draw a  lease for year Leonard er p where lessee for life be year of age at the least  and also a grant of all the tree if the queen have a particular estate and  grant totum position suum without recite of such particular estate the grant  be void the queen have the profit of the land of one who be outlaw in a  personal action and grant to another the land it self it be void for it be a  wrong to a three person which the king can do but here the special interest of  the queen ought to be recite now when the queen be tenant for the life of  another make lease ut above and afterward the fee come to the queen the estate  out of which the lease be derive be determine the lease also be determine sure  the estate for the life of another by the accession of the feesimple and the  queen be in by a new right it be adjudge Elizabeth here that where the queen  have the land of a fugitive for the life of another and lease the same to  another how day in shades of dead our men before to touch and after the  feesimple of the fugitive come to the queen by his attainder the same lease be  void king e give to his sister mary manor de b for her life secundum course  execution will sive ultimae will of king Hen who will be that she shall have  it as long as she remain unmarried she grant a rentcharge king e die by which  the fee descend to the say mary be queen of England and afterward she marry he  make it a quaere if the rend be not go dyer Phil mary but Bendloes report the  same case to be adjudge that the rend be go sir Francis Englefield Elizabeth  with leave of the queen go beyond sea his licence expire the queen direct to  he a privy seal with her commandment to return which he receive but do not  return but adhere to the queen enemy there upon which the queen seize his land  and Elizabeth grant a manor parcel thereof and all profit thereof how day in  shades of dead our men before to touch afterward by Act Elizabeth for there be  some doubt if the queen may make lease grant copyhold or usual woodfalls of  such land or only take the ordinary profit thereof as vesturam terrae it be  explain that during the interest of the queen she may do ut above as tenant  for the life of another may do upon which a new seizure be make for the queen  and a steward appoint by the queen letter patent who hold a court and take  surrender in the hand of the queen and grant admittances c and it be resolve  by the two chief justice that the two seizure give not the queen any other or  better seize in the say manor than she have before by the first seizure at the  commonlaw notwithstanding both the say statute and so the court hold by the  queen void and all surrender and admittances also and so it be adjudge  Elizabeth dyer upon Leonard which it may be conclude that if by the say  statute or any of they have have a new right the last copy have be good  notwithstanding the grant of the manor before also for ass the king grant  custodiam terrae heir how day in shades of dead our men before to touch the  heir be a daughter and after a son be bear now the grant of the king be void  tenant in tail the reversion in the king discontinue the discontinuee be  attaint the king seize and leas for year tenant in tail be attaint of treason  now the queen shall avoid her own lease so if the seize be attaint upon which  the queen seize and leas and afterward the disseizee be attaint and he cite  the case of the abbot of Colchester Elizabeth the abbot commit treason and  afterward by the statute or by surrender the abbey come to the crown who lease  the land for year the abbot be attaint of the say treason now the king shall  be seize by force of the attainder and shall avoid his lease as to the lease  make to the defendant by the queen one be make after the statute of Elizabeth  and the same be not save by the save there for the word be of estate then in  be such estate as they have before the make of the Act as to lease make before  they be drown in the feesimple which accrue to the king by the attainder c and  here by this statute the estate of the queen for the life of another be not  save by the statute and then the lease derive out of it be not save the queen  be not bind by the say statute to exhibit any conveyance for she shall not  take any oath accord to the statute and if the queen be not within the body of  the Act she be not within the save now as to the condition the statute of h  give to the queen use right condition it have be object that such condition be  intend to be give to the king which be to be perform on the part of the donee  lessee grantee covenantee but not on the part of the grantor c for it be in  the will of the grantor if he will perform they or Leonard er p not and a will  can be transfer over but as to that it may be answer that a will by parliament  may be transfer over for parliament in all respects to be able it have be  object if that shall be say the will of sir Francis which now be the will of  the queen it shall be a great prejudice to Francis Englefield the nephew for  now he shall be double bridle by his uncle and by the queen it have be object  that here be a conditional condition I if the nephew shall be give to  intolerable vice and it be not add to enable the queen to take advantage of  the condition that he be otherwise than of good behaviour and conversation but  the word of the proviso clear the matter lest he shall be give to intolerable  vice and not if he be give c so as it be not a condition to a condition but a  motive to a condition and Leonard the statute of Elizabeth by which sir  Francis be attaint give to the king all condition it have be object that in  the say statute of Elizabeth S a save by which lease make by the queen be  preserve but if that proviso be well observe it do not extend to our case that  Act extend to make void any grant lease c make by the queen after the treason  commit c but that shall of such force as if the say Act have not be make as to  that I say that this statute do not add or detract from such lease but leaves  they as it find they for the statute give to the queen the condition which  condition avoid the say lease for it avoid the estate of the queen out of  which the say lease be derive and although that the conveyance as to the  benefit of sir Francis or his nephew be void by the statute for not enrolment  of they yet it be not utter void as to the queen also the statute of Elizabeth  enact that lease make by bishop against the form of the statute shall be void  yet they shall not be void against the bishop himself or against the lessor  exception have be take for that the tender of the king be not find by office  but he needs no office for the tender be the act of the queen her self there  she ought not to be inform of it for to what purpose shall the queen be  certify of that which she her self have do t the queen make a lease for year  upon condition that the lessee surrender to her the manor of b here for the  not do of it no office be requisite tenant of the king in capite alien by fine  that needs no office for that appear upon record so here and although the  condition be return in the exchequer after the term yet it be well enough for  the exchequer be never shut as to take and receive money certificate make to  be enrol although it be shut as to all judicial act and although no tender at  all be certify it be not to the purpose for the tender make the estate void  without any other thing and it be not like to a capias ad to give satisfaction  for that be ita quod habeas corpus c therefore the arrest be not sufficient b  it self but the same ought to be remember with a ita quod c but as to that  which have be say that the queen shall not avoid her own lease the same be not  so nor in case of a common person as if tenant in tail feoff his heir within  age who make a lease for year at his full age tenant in tail die now the issue  shall avoid his own lease for be be remit a seize levy a fine to a stranger  the disseizee enter upon the conusee and feoff the seize now he shall avoid  his own fine a much strong in the case of the king now it be to see if the  grant of the wood by the queen be tenant for the term of another life be good  or not he conceive it be not for she be deceive in her grant not know that she  be but a particular tenant it Leonard be object that the queen have property  and right in the tree and wood forasmuch as no waste or trespass lie against  her if she cast they down certain the lessee if the tree and wood be not  except have the property in they but not the absolute property for the writ of  waste shall say ad exhaered to express grief for he can cut they id for so  much to be able quod de jure to be able perhaps the lessee shall have the  windfall because they be sever from the inheritance by the act of God not of  the lessee himself and see h waste and also in Statham distinction waste a  leas to b for life without impeachment of waste a stranger cut tree and the  lessee bring trespass be shall not recover damage for the value of the tree  for the property of the body and the tree be in he who have the reversion he  may give it by which it appear that the lessee be not to recover but only for  the crop and the break of his close h strong in case where the lease be make  without the clause without action of attacking huge as the case at bar be and  therefore when the queen have so feeble a estate make such a grant sure grant  all the wood c the grant be void for she be deceive in her Leonard er p grant  by which if it shall be good she shall wrong her subject a grant to the queen  shall have a reasonable construction as the grant of a common person a grant  to the queen common in all his land the queen by that grant shall not have  common but in land commonable not in his land where his corn be grow or in his  orchard or garden tenant for life grant all the wood upon his land nothing  passes but that which he may lawful grant so in case of grant of the king ass  the king grant to one good catalla tenent of oneself fugitivor no matter how  dampnor the grantee shall not have the good and chattel of one who have kill  the king messenger so in grant of amercement the grantee shall not have a  special amercement c so here the ant of all wood ought to be intend of such  wood as underwood which the queen may lawful grant without wrong to another  and he say that when the queen have grant the land and the wood for year that  grant can be divide and the word of the grant be that it shall be lawful to  cut the wood during the space of year now forasmuch as the lease be surrender  ut above the liberty of cut the wood be go also a man bargain and sell his  manor with all wood upon it grow the deed be not enrol so as the manor do not  pass the wood shall not pass in gross for the grant shall not be divide see  more after sect Leonard trin Elizabeth in the king bench