bearcroft against GEERY TR car rot ante occupant error of a judgement in c b  in ejectment of land in Worcester on special verdict at the assize who find  the dean and chapter of Worcester Elizabeth make a lease to Edgham for the  life of three daughter with livery who James lease to Dindly for year if the  three life so long live provide he shall permit Edgham to take the profit for  his life and his Keble wife after he dingly enter and after Edgham enter and  die in possession and his wife first enter into the land and after surrender  upon the death of dingly unto the dean and chapter who make a due lease to her  and after make a lease to the administrator of d the plaintiff and Newdigate  pro plaintiff in the writ of error who be also plaintiff in c b the judgement  be there pro defendant that lessee for year or at will of tenant pur auter vie  Cr dyer shall be occupant and lessee for year remainder for another life also  shall be occupant also I agree administrator of lessee shall be occupant  whereof I have see a authority Elizabeth Bulstr I agree lessee at will of  tenant for year shall be occupant be always in actual possession but here the  lady Edgham be not in actual possession at her husband death but the  possession in law be in dingly the case come not to this Cr nor have the lady  any estate but a agreement and a trust to take the profit at the time of the  husband death but like Cr pously against Blackman and at commonlaw as Inst on  light sect he can not enter but trespass lie against her therefore the  freehold be cast upon dingly light sect and he be not exclude by his write  seal as to her because before entry she be not capable of a release light sect  dyer also here it rest on a contingency whether she shall ever be tenant at  will or not for she have election as well as dingly therefore till that make  there can be no estate in her and consequent as latch there can be no  occupancy and Cr such interest can be divest but if the agreement have be  express that the bar pe shall be tenant at will she shall have be the occupant  but here her estate be not complete till her entry which be after the death of  the husband also she be not without remedy upon the agreement in chancery but  this equity shall not entitle her to a estate in law also the freehold can be  in suspense as it will be till her election make also she take her estate as  occupant after the death of dingly and as such surrender and so she will  hereby cozen the dean and chapter like Cr c b pasch Elizabeth lessee pur auter  vie leas for year to begin after his death the lessee die and a stranger first  enter after death of tenant pur auter vie and adjudge the lessee shall be the  occupant send per curian not unless he enter and like to this be the case in  car brazier against Thomas before Jones at Hereford assize lessee Keble for  life devise to the benefit of infant and a stranger first enter and adjudge by  he the stranger shall be the occupant Jones pro defendant there be no entry of  dingly find after the death of Edgware but only April Raworth refuse new lease  on the surrender of a old one take by Hensham the father in his son name to  son and his heir if a b and c live the son be dead and leave cousin heir as  special occupant though the son never enter nor enjoy it nor the cousin a  infant but only the father Keble er p upon the first lease therefore the wife  of Edgware be occupant the possession requisite to make a occupancy be  primitive right before property begin must not be only a possession in law but  a actual take of the profit or be present on the ground as h appear by the  plead mich James chamberlain against ewer Bulstr whereof I have report to the  same purpose Trin James rot and to say be enter and be seize be as much as to  take into possession but to have say only seisitus be not sufficient pasch  Elizabeth dudleu against knight more pl adjudge the word to take into  possession as much as be glad to be to have and hold and that he take the  profit it be find the wife primo to go into and Dinglys possession must either  be because his lessee at will be his actual which be but to some purpose but  not to this for tenant at will be occupant as be agree or he must have some  actual possession since which do not appear I agree light sect but that differ  in reason from this for there may be a possession to maintain trespass that be  not actual to all purpose as on voluntary waste by tenant at will be  punishable by trespass by the lessor but the trespass in the case of light  sect be ground on the possession the heir have before the lease as h per Brian  when the estate of lessee be determine and possession wave therefore as light  sect l   tenant at will by continuance of possession after his estate  determine be become tenant at sufferance which he can not be be the possession  to all purpose actual in the lessor for the reason of this tenancy be because  he continue and hold over his ancient possession which if it be new will be a  trespass and if to any purpose the possession do continue it do continue in  this case of occupancy also the pe be tenant at will by the same conveyance as  the husband be and her title as ancient by the contract of dingly and it be  not material what estate she have whether more or less than at will by right  or by wrong so she have the first possession and to make a breach of trust  contra to the party own agreement be inconvenient it be also express find she  first enter therefore it may be intend she enter eastern instant that the  husband die and there can be no mesne possession by dingly or any other but  dingly can be volens not a occupant till election make unless he be a tort  feasor as hill h James rot in c b bolls against mason Owen report and Keble  Brownlow adjudge that copiholder may be a occupant but not not volens so  Brownlow of lessee for year who else may lose a long term for one life and  there be nothing find in this verdict that make any election in dingly to be  occupant but the contrary that he suffer her always to take the profit Twisden  say it be resolve in starchamber in the case cite Brownlow that the lessee be  occupant but he may wave it which Windham agree he may do it by show the  special prejudice as heir successor or executor may do lease charge c the  manner of wave be different in precipe quod To give back distress or other  action bring Keeling Ch just say the lessee can not wave the occupancy for  then the freehold will be in obeyance and no real action can be bring against  any man and this be not like copyhold who may have another occupant of the  freehold which can here be but if tenant at will be the occupant the lease for  year must be determine but if it be to be wave it be considerable whether this  waver must be during the life of the lessee for year or by his administration  Windham say there be several step to the possession to several purpose for a  executor make at London may have trespass of good at York but the lord shall  not have trespass of a stray before actual seizure for the come on the land be  not a full and perfect seize to all purpose Adjornatur