a report of a judgement give in the king bench enter of record in easter term  in the that year of the reign of queen Elizabeth and of part of the argument  upon a demurrer in replevin shed by robert smith against thomas Stapleton and  John HEYCOCK and the record be as follow easter term Elizabeth rot rooper et  Heywood Essex declaration same precedent raze Entr b pl Thomas Stapleton and  John Heycock be summon to answer Robert smith of a plea wherefore they take  the cattle of the say Robert and they unjust detain against gauge and pledge c  and whereupon the same Robert by Francis Sandbach his attorney complain that  the aforesaid Thomas and John the that day of November in the ten year of the  reign of the lady Elizabeth now queen of England at Goldhanger in the count  aforesaid in a certain place there call Faity in the land ground in Goldhanger  take the cattle videlicet six cow of the say Robert and they unjust detain  against gauge and pledge until c and whereupon he say that he be damnified and  have damage to the value of pound and therefore he produce the suit c avowry  and the aforesaid Thomas Stapleton and John Heycock by Richard Haywood their  attorney come and defend the force and injury when c all the take and  whatsoever c and as bailiff of John Reynolds well acknowledge the take of the  cattle aforesaid in the aforesaid place in which c and just c because they say  that the same place in which the take of the cattle aforesaid be suppose to be  do be and at the aforesaid time of the take of the say cattle above suppose to  be do be acre with the appurtenance in Goldhanger aforesaid whereof long  before the take of the say cattle above suppose to be do one Charles late duke  of Suffolk be seize in his demesne as of fee and be so seize thereof the same  late duke of Suffolk before the aforesaid time when c videlicet the that day  of march in the thirty year of the reign of Lord Henry the eight late king of  England at Goldhanger aforesaid give grant and confirm to one Robert trap of  London goldsmith and to Joan then his wife the aforesaid place with the  appurtenance in which c among other thing to have and to hold to the same  Robert and Joan for term of their life and of the long liver of they without  impeachment of any waste the remainder thereof after the death of the  aforesaid Robert trap and Joan to Nicholas trap one of the son of the say  Robert trap and to the heir of his body lawful beget and for default of  Plowden such issue the remainder thereof to one Francis trap another of the  son of the say Robert trap and to his heir and assign for ever by virtue of  which say gift grant and confirmation the aforesaid Robert trap and Joan his  wife of the aforesaid place in which c be seize in their demesne as of  freehold for term of their life the remainder thereof to the aforesaid  Nicholas trap and to the heir of his body lawful beget the remainder thereof  in form aforesaid and the aforesaid Robert and Joan be so seize thereof and  the aforesaid Nicholas be so seize of the remainder thereof the aforesaid  Nicholas trap afterward and before the aforesaid time when c videlicet the  that day of may in the thirtysixth year of the reign of the say late king  Henry at London aforesaid of such his estate thereof die seize after who death  the aforesaid remainder of the aforesaid place ill which c among other thing  descend to one mary wife of one Lord Giles Paulet and to Alice wife of one  Henry brown as daughter and heir of the same Nicholas of his body lawful beget  whereby the same Lord Giles and mary Henry brown and Alice his wife in right  of the same mary and Alice be of the say remainder of the aforesaid place in  which c among other thing seize as of fee and right videlicet to the aforesaid  mary and Alice and to the heir of their body lawful beget by the form of the  gift aforesaid and afterward the aforesaid Robert trap and Joan be so seize as  be aforesaid of the aforesaid place in which c the aforesaid Robert trap the  that day of December in the three year of the reign of the say lady the queen  now at London in the parish of saint Vedast die and the aforesaid Joan survive  he and hold herself in the tenement aforesaid with the appurtenance in which c  by right of survivorship and be thereof sole seize in her Plowden er p demesne  as oh f freehold and she be so thereof seize at London aforesaid the that day  of January in the six year of the reign of the lady the queen now of such  estate thereof die seize after who death the aforesaid Lord Giles and mary his  wife and the aforesaid Henry brown and Alice his wife in right of the same  mary and Alice into the aforesaid tenement with the appurtenance in which c  among other thing as in the remainder of the say mary and Alice enter and be  thereof among other thing seize in their demesne as of feetail by the form of  the gift aforesaid in right of the same mary and Alice and the say Lord Giles  and mary Henry and Alice be so thereof seize before the aforesaid time when c  videlicet the that day of July in the seven year of the reign of the lady  Elizabeth now queen of England at Goldhanger aforesaid partition of the place  aforesaid in which c and of other tenement which descend to the aforesaid mary  and Alice as daughter and heir of the aforesaid Nicholas in the say county of  Essex be make between the aforesaid Lord Giles Paulet and mary and the  aforesaid Henry brown and Alice by which say partition the aforesaid place in  which c among other thing be allot and assign to the aforesaid Lord Giles and  mary in recompense and allowance of the whole purparty of the aforesaid mary  fall to the say mary out of all the tenement aforesaid with the appurtenance  which be the aforesaid nicholas her father by virtue of which say partition  the same Lord Giles Paulet and mary as in right of the same mary be of the  aforesaid tenement with the appurtenance in which c among other thing seize in  their demesne as of feetail videlicet to the aforesaid mary and to the heir of  her body lawful beget accord to the form of the gift aforesaid and the same  Lord Giles and mary be so seize thereof before the aforesaid time when c  videlicet the that day of march in the nine year of the reign of the say lady  the queen now at Goldhanger aforesaid demise the aforesaid place in which c  among other thing to the aforesaid John Reynolds to have and to hold to the  aforesaid John Reynolds from the same that day of march unto the end of the  term of twentyone year from thence next follow and full to be complete by  virtue of which say demise the same John Reynolds the that day of march in the  nine year of the reign of the lady the queen now into the aforesaid place in  which c enter and be thereof possess and because the aforesaid cattle the  aforesaid time when c be in the aforesaid place in which c eat up the grass  then and there grow and do damage there the same ThomasStapleton and John  Heycock as bailiff of the same John Reynolds well acknowledge the take of the  cattle aforesaid in the aforesaid place in which e and just c for the damage  then there so by they do and this they be ready to verify wherefore they pray  judgement and a return of the cattle aforesaid together with their damage cost  and charge by they about their suit in this behalf expend accord to the form  of the statute in such case late make and provide to be adjudge to they c bar  and the aforesaid Robert smith say that by any thing by the afore say Thomas  Stapleton and John Heycock above by plead allege the same Thomas and John the  take of the cattle aforesaid in the aforesaid place in which c just ought not  to acknowledge because he say that well and true it be that the aforesaid  Charles duke of Suffolk be seize in his demesne as of fee of Plowden and in  the aforesaid place in which c and be so seize thereof he the say that day of  march in the thirty year of the reign of Lord Henry the eight late king of  England at Goldhanger aforesaid give grant and confirm to the say Robert trap  and Joan his wife the aforesaid place with the appurtenance in which c to have  and to hold to the same Robert and Joan for term of their life and of the long  liver of they without impeachment of any waste the remainder thereof after the  death of the aforesaid Robert and Joan oh Nicholas trap one of the son of the  say Robert trap and to the heir of his body lawful beget and for default of  such issue the remainder thereof to the aforesaid Francis trap another of the  son of the say Robert trap and to his heir and assign for ever and that the  aforesaid Robert trap and Joan his wife by virtue of the gift grant and  confirmation aforesaid be seize in their demesne as of freehold for term of  their life the Plowden er p remainder thereof to the aforesaid Nicholas trap  and to the heir of his body lawful beget the remainder thereof in form  aforesaid but further the aforesaid Robert smith say that the aforesaid Robert  trap and Joan his wife be so seize of the aforesaid place in which c the  remainder to the say Nicholas trap as be aforesaid on the octave of saint  Hillary in the thirtyfifth year of the reign of Lord Henry the eight late king  of England in the court the of the same late king at Westminster in the county  of Middlesex before John Baldwin William Shelley Thomas Willoughby and  Burgundy brown justice vide Leon a certain final concord be make and afterward  from the day of easter in fifteen day in the thirtysixth year of the reign of  the same king Henry the eight there grant and record before the same justice  and other faithful man of the say late king Henry the eight there present  between the say Nicholas trap complainant and one Stephen Beckingham  deforceant of the place aforesaid in which c among other thing by the name of  one message one garden sixty acre of land six acre of meadow one hundred acre  of pasture twenty acre of wood and three hundred acre of marsh with the  appurtenance in Goldhanger whereof a plea of covenant be summon between they  in the same court by which say fine the same Stephen acknowledge the say  tenement with the appurtenance to be the right of the say Nicholas as they  which the same Nicholas have of the gift of the same Stephen and they remit  and quitclaim from himself and his heir to the same Nicholas and his heir for  ever for which say acknowledgement remise and quitclaim fine and agreement the  same Nicholas grant to the same Stephen the say tenement with the appurtenance  and they to he render in the same court to have and to hold to the same  Stephen from the Feast of saint Michael the Archangel then next to come unto  the end of the term of fiftyfour year from thence next follow and full to be  complete yield therefore yearly during the whole term to the same Nicholas his  heir and assign pound S d Payable at the feast of the annunciation of the  bless mary and of saint Michael the Archangel by equal portion upon which say  fine proclamation be make accord to the form of the statute in such case make  and provide that be to say the first proclamation thereupon be make the that  day of may in the term of easter in the thirtysixth year of the reign of the  say late king Henry the eight the second proclamation be make the that day of  may in the same term the three proclamation be make the d day of may in the  same term the four proclamation be make the that day of may in the same term  the five proclamation be make the that day of June in the term of the holy  Trinity in the thirtysixth year of the reign of the aforesaid late king the  six proclamation be make the that day of June in the same term the seven  proclamation be make the that day of June in the same term the eight  proclamation be make the d day of July in the same term the nine proclamation  be make the saint day of November in the term of saint Michael in the say  thirtysixth year of the reign of the aforesaid late king the ten proclamation  be make the that day of November in the same term the eleven proclamation be  make the that day of November in the same term the twelve proclamation be make  the that day of November in the same term the thirteenth proclamation be make  the that day of February in the term of saint Hillary in the thirtysixth year  of the reign of the aforesaid late king Henry the eight the fourteenth  proclamation be make the that day of February in the same term the fifteen  proclamation be make the that day of February in the same term the sixteenth  proclamation be make the that day of February in the same term by virtue of  which fine with proclamation aforesaid Stephen Beckingham be possess of the  interest of the term aforesaid and further the same Robert smith say that the  that day of may in the thirtysixth year of the reign of the late king Henry  the eight the aforesaid Nicholas trap at Goldhanger aforesaid die and  afterward the aforesaid Stephen Beckingham be possess of the say interest of  and in the tenement aforesaid as be aforesaid at London in the parish of the  bless mary of the arch in the ware of Cheap make his testament Plowden er p  and last will and therein constitute Joan Beckingham his wife sole executrix  and afterward videlicet the that day of December in the first year of the  reign of the lady the queen now at London in the parish Plowden and ware  aforesaid die and the aforesaid Joan Beckingham afterward videlicet the that  day of December in the first year abovesaid take upon herself the burden of  the testament aforesaid and accord to the ecclesiastical law the same lawful  at the city of London videlicet in the parish of the bless mary of the arch in  the ware of Cheap prove before Nicholas Wotton doctor of both law dean of the  church of Christ in Canterbury and the chapter of the same place to who all  and all manner of jurisdiction spiritual and ecclesiastical which to the  archbishop of Canterbury in full see appertain that see be vacant be notorious  know to belong by virtue whereof the aforesaid Joan Beckingham as executrix of  the testament aforesaid be of the interest of the term aforesaid possess and  the aforesaid Joan Beckingham be so possess afterward videlicet the that day  of December in the first year of the reign of the say lady the queen now at  London in the parish and ware aforesaid make her testament and last will and  therein make and constitute one George Keynsham and Richard Buckland executor  and afterward videlicet the that day of December in the first year abovesaid  at London aforesaid in the parish and ware aforesaid die which say George  Keynsham and Richard Buckland take upon themselves the burden of the testament  of the aforesaid Joan Beckingham and the same testament lawful and accord to  the ecclesiastical law prove at the city of London aforesaid videlicet in the  parish and ware aforesaid before the aforesaid Nicholas Wotton doctor of both  law dean of the church of Christ in Canterbury and the chapter of the same  place to who all and all manner of jurisdiction spiritual and ecclesiastical  which to the archbishop of Canterbury in full see appertain that see be vacant  be notorious know to belong by virtue whereof the aforesaid George Keynsham  and Richard Buckland as executor of that testament be possess of the interest  of the term aforesaid and afterward the aforesaid Robert trap and Joan his  wife die after the death of which Robert and Joan the aforesaid George  Keynsham and Richard Buckland before any entry into the aforesaid place with  the appurtenance in which c by the aforesaid Lord Giles and lady mary and by  the aforesaid Henry brown and Alice his wife or any of they the that day of  January in the six year of the reign of the say lady the queen now as executor  of the testament of the aforesaid Joan Beckingham executrix of the testament  of the aforesaid Stephen Beckingham claim their term aforesaid into the  aforesaid place with the appurtenance in which c enter and be of the same as  executor of the testament aforesaid possess for the term aforesaid after that  partition of the place aforesaid in which c be have as the same Thomas  Stapleton and John Heycock by plead have allege and the aforesaid George  Keynsham and Richard Buckland be so thereof possess as be aforesaid before the  aforesaid time when c videlicet the that day of September in the six year of  the reign of the say lady the queen now at Goldhanger aforesaid demise the  aforesaid place in which c to the aforesaid Robert smith to have and to hold  to the same Robert smith his executor and assign from the Feast of saint  Michael the Archangel then next follow unto the end of the term and for the  term of seven year from thence next follow and full to be complete by virtue  whereof the same Robert smith into the aforesaid place in which c enter and be  of the same possess until the aforesaid Thomas and John take his cattle  aforesaid in the same in manner and form as in his declaration aforesaid he  have allege and this he be ready to verify wherefore for that the aforesaid  Thomas Stapleton and John Heycock the take of the cattle aforesaid in the  aforesaid place in which c acknowledge the same Robert smith pray judgement  and his damage aforesaid by occasion of the take and unjust detention of the  cattle aforesaid to be adjudge to he c defendant demurrer and the aforesaid  Thomas Stapleton and John Heycock say that the plea aforesaid by the say  Robert smith in manner and form aforesaid above by plead in bar to the  cognizance aforesaid plead and the matter in the same contain be insufficient  in law to preclude they the say Thomas and John from have their cognizance  aforesaid to which say plea they the same Thomas and John have no necessity  nor be by the law of the land bind in anywise to answer where Plowden er p  before for want of a sufficient answer in bar to the cognizance aforesaid in  this behalf the same Thomas and John as before pray judgement and a return of  the cattle aforesaid together with their damage cost and expense by they about  their suit in this behalf expend accord to the form of the statute in such  case make and provide to be adjudge to they c joinder in demurrer and the  aforesaid Robert smith say that the plea aforesaid by he the say Robert smith  in manner and form aforesaid by plead in bar to the cognizance aforesaid plead  and the matter in the same contain be good and sufficient in law to preclude  the aforesaid Thomas Stapleton and John Heycock from have their cognizance  aforesaid which say plea and the matter in the same contain the same Robert  smith be ready to verify and prove as the court c and because the aforesaid  Thomas Stapleton and John Heycock to that plea do not answer nor the same  hitherto in anywise deny the same Robert smith as before pray judgement and  his damage aforesaid by the Plowden occasion aforesaid to be adjudge to he c  and because the court of the say lady the queen here be not yet advice of give  their judgement of and upon the premise day therefore be give to the party  aforesaid before the lady the queen at Westminster until next after to hear  their judgement of and upon the premise c because the court of the lady the  queen here thereof not yet c the case a stranger levy a fine to tenant in tail  in remainder expectant on two estate for life sur conusance de law come Ceo  and ill ad de son do and the conusee by the same fine render to the conusor  for fiftyfour year to commence at Michaelmas ensue and die and all the  proclamation aremade after his death the tenant for after the time in which  the lease be limit to commence die adjudge that the term be good against the  issue in tail for the fine be not avoid by the descent of the remainder S c  cite more say Bulst show west Symb pt foe b sheep pract Couns Bac Abr vin Abr  title fine pl S pl the case be recite in this manner Charles duke of Suffolk  be seize in his demesne as of fee of and in acre in Goldhanger in the county  of Essex and be so seize the that day of march in the thirty year of the reign  of king Henry eight he give the say land to Robert trap and to Joan his wife  for their life the remainder to Nicholas trap one of their son and to the heir  of his body beget the remainder to Francis trap another of their son and to  his heir for ever by force whereof the husband and wife be seize accord the  remainder over in form aforesaid and they be so seize on the octave of saint  Hillary in the thirtyfifth year of the reign of king Henry eight in the common  bench a final concord be make and afterward on the quinzime of easter in the  thirtysixth year of the reign of the same king grant and record before the  justice of the same bench between the say Nicholas trap complainant and one  Stephen Beckingham deforceant of the say tenement by which fine the say  Stephen acknowledge the tenement to be the right of the say Nicholas as they  which the say Nicholas have of his gift for which fine the say Nicholas trap  grant and render the same tenement to the same Stephen Beckingham to have and  to hold to the same Stephen from the Feast of saint Michael then next follow  unto the end and term of fiftyfour year from thence next ensue and full to be  complete yield therefore yearly during the say term to the say Nicholas his  heir and assign pound S d at the feast of the annunciation of our lady and of  saint Michael the Archangel by equal portion and afterward videlicet the that  day of may in the thirtysixth year of the reign of king Henry eight the say  Nicholas die leave issue two daughter videlicet mary the wife of Lord Giles  Paulet and Alice the wife of Henry brown after who death proclamation be make  upon the say fine that be to say the first proclamation be make the that day  of may in the thirtysixth year of the reign of king Henry eight and three  other proclamation be make the same term and four proclamation in each of the  three term follow and afterward videlicet in the first year of the reign of  queen Elizabeth the say Stephen Beckingham make Joan his Plowden er p wife his  executrix and die who prove the testament and make George Keynsham and Richard  Buckland her executor and die in the say first year of the reign of queen  Elizabeth and afterward videlicet in the three year of the reign of queen  Elizabeth the say Robert trap die and afterward in the six year of the reign  of queen Elizabeth the say Jo a wife of the say Robert trap die after who  death and before any entry make by the daughter of the say Nicholas trap or  their husband the say Keynsham and Buckland executor of the say Joan  Beckingham enter into the say tenement claim their say term of fiftyfour year  and afterward videlicet the that day of September in the say six year of the  reign of queen Elizabeth they lease the say tenement to the say Robert smith  the plaintiff for seven year next follow the Feast of saint Michael the  Archangel then next ensue by force whereof smith enter and be possess and  afterward the say two husband and their wife enter and the that day of July in  the seven year of the reign of queen Elizabeth make partition of the  hereditament descend to they from the say Nicholas trap by which partition the  say tenement in Goldhanger be allot to the say pound d Giles Paulet and to  mary his wife as part of their purparty whereupon they the that day of march  in the nine year of the reign of queen Elizabeth make a lease of the say  tenement to one John Reynolds for twentyone year next ensue the say that day  of march by force whereof on the morrow afterward the say Reynolds enter and  the say Robert smith the plaintiff put in his cattle videlicet six cow and the  say Thomas Stapleton and John Heycock as bailiff of the say John Reynolds the  that day of November in the ten year of the reign of queen Elizabeth distrain  they whereupon he sue a replevin against they which be remove into the king  bench and they as bailiff of the say John Reynolds make cognizance for  damagefeasant and show the say conveyance make by the duke and the descent and  the partition and the lease to Reynolds and the plaintiff by way of bar to the  cognizance show the fine and the proclamation and the rest of the say matter  and so the whole matter before show be disclose and thereupon Stapleton and  Heycock have demurrer in law exception whether it be necessary for he that  derive title to land by a lease for year make by husband and wife tenant in  tail in right of the wife to allege the same to be make by deed or to aver the  life of the husband and wife p Sav vide die pl pl   a b Leon cro r cro hall  winch roll r Bac Abr and the matter be argue at the bar in the king bench in  October in the ten year of the reign of queen Elizabeth by Thornton and  manwood on the part of the defendant and by Thomas Bromley and a apprentice of  the middletemple on the part of the plaintiff and Bromley take exception to  the plea of cognizance make by the defendant for that they have make  cognizance for damagefeasant in the land of their master and his title be show  to be by Plowden force of a lease make by the Lord Giles Paulet and his wife  for twentyone year which lease be not show to be by deed in which case it be  not the lease of the wife but of the husband only and therefore they ought to  have show that the husband and wife be in full life at the time of the  distress take for if the husband be dead the lease be absolute determine as  against the wife because it be make without deed and if the wife be dead then  the estate of the husband who make the lease be end if it be not show that he  be tenant by the courtesy and then the lease for year be also end wherefore  the defendant in order to enable themselves to punish the plaintiff by  distress for his wrong to Reynolds ought to aver the life of the husband and  wife which they have not do and for this reason their plea be bad in answer to  which it be say that it be show that the wife have a estate of inheritance in  the land videlicet a feetail and so have the husband in her right and when a  lease be derive from one who have a inheritance whether he be a abbot bishop  dean tenant in tail or the like the inheritance shall be intend to a see ante  c and the book there cite a continue in he and he in the inheritance until the  contrary be show otherwise it be of a particular estate as for life b S p roll  Abr pl Sav vide   a vin Abr title possession g per totum see post c b and also  the possession continue in the lessee shall Plowden er p enable he to distrain  damagefeasant the cattle of a stranger that have no title although his estate  in right be end but if the husband have grant a rentcharge to a stranger and  he have distrain for it there will have be great reason to aver the life of  the husband but here this distress for damagefeasant be in respect of the  possession rather than of a good title which possession be not show to be  remove c S p Litt r palm Sav c and also it be plead by way of bar for although  he that make cognizance make title to have a return yet it be also a bar to  the plaintiff for it excuse the defendant of the wrong d see ante b and the  book there cite d and a bar shall be good to a common intent and at the end  this exception be disallow by the rule of the court exception whether  partition plead inter alian be good another exception be take to the plead of  the partition in the defendant plea of cognizance for that it be plead that  the place where c among other thing be allot and assign to Lord Giles and his  wife in recompense of her purparty and they have not show in particular all  that be allot to they but have only say that the place where c among other  thing be allot to they and have not show the certainty of the land allot to  the other coparcener to which it be say that the plead be good enough and in  the usual form and the plaintiff in his bar to the cognizance have in precise  word confess the say partition accord as it be allege wherefore this exception  be disallow by the court exception whether it be a good form of plead a fine  to say that a final concord be make c and if it be necessary to show that it  be levy in the common bench vide Mod Entr b pl another exception be take by  Thornton and manwood to the plead of the fine in the plaintiff bar to the  cognizance for that he have plead that a final concord be make and have not  plead that a fine be levy as the usual form be and although the fine here be  not engross until easter term yet it may be say that the fine be levy in  Hillary term for in that term the writ of covenant be return with the dedimus  power and the concord and the king silver be enter the same term and the note  be make that term in which the writ be return which make it a fine so that it  may well be say that the fine be levy in Hillary term although it be not  engross until easter term e m h b Fitzherbert to know facias bro sheep pract  Couns e and upon this the case in h be cite where Bremingham bring a to know  facias upon a fine levy in easter term year Edward and it be recover and  engross in Trinity term the same year and exception be take because the  mittimus do not make mention that the fine be engross but cum quidam Finis to  lift up only but it be there say that although a fine be levy and not engross  yet it be a fine and remain of record to the intent to be execute afterward as  strong as if it have be engross and there be diverse fine execute in this  place which never be engross f f n b a   b Poph strange Curson Manby booth  west Symb pt foe f and before the engross of it a man shall have a quid law  proclaim to compel the tenant to attorn g Curson Manby booth west Symb pt foe  a g for without attornment the waste will be dispunishable which be there  affirm by the whole court but after the fine be engross he shall not sue a  quid law proclaim nor make avowry nor punish the waste without attornment and  neither in the certiorari which issue out of the chancery to the chamberlain  to remove a fine levy in one term and engross in another term nor in the  mittimus be there any mention make of the engross wherefore the tenant be  there drive to answer over from whence it be sa it appear in our case that the  plaintiff may have say that the fine be levy in Hillary term although it be  not engross until easter term and therefore inasmuch as he have not pursue the  usual form of plead the bar to thecognizance be not good and also it be not  show that it be levy in the common bench in answer to which it be say that the  matter and the substance of the fine be here show by this form of plead as  full as by the other so that there be no Plowden er p variance in substance  and in such case a man be not tie up to one particular form of plead but if he  show the matter effectual it be sufficient and as to its not be say that it be  levy in the common bench to this it be answer that the usual form be to say  that the fine be levy in the court of the lady Plowden the queen at  Westminster as it be before plead and not to say that it be levy in the common  bench and precedent hereof be cite in the raze Entr last edition foe a book of  entry title formedon foe and in diverse other place wherefore these exception  be disallow by the rule of the court as to the matter in law the main point of  it be whether or no the lease for year make by the fine be defeat and in order  to understand this it be say it be first to be consider how and in what degree  the lease at first pass by the fine and then whether or no by the death of  Nicholas trap and the descent of the remainder in tail to his daughter those  daughter be remit to the remainder in tail in such manner that the lease shall  be adjudge in law to be utter defeat by the descent of the remainder and last  what be the force of the proclamation upon the fine make after the death of  the say Nicholas trap and as to the first point videlicet in what degree the  lease at first pass from Nicholas trap it be say it be to be observe that  Robert trap and his wife be tenant for life of the land the remainder to  Nicholas in tail in which case when Beckingham acknowledge the tenement to be  the right of Nicholas as they which he have of his gift his estate in rei in  point of fact be not alter for Beckingham have no right nor estate in the land  so the in fact nothing pass from Beckingham to Nicholas although during the  life of Nicholas he shall be conclude by estoppel to say otherwise but that he  receive a feesimple from Beckingham forasmuch then as nothing be in fact do by  the acknowledgement of Beckingham to Nicholas the render of Nicholas to  Beckingham be to be consider which be for fiftyfour year to commence at the  Feast of saint Michael the Archangel then next come at which time Nicholas  have but a remainder in tail depend upon a estate for the life of husband and  wife and the husband and wife be alive at the time when the lease for year  take its commencement and for the better understanding this matter it be say  it be to be divide into diverse part first it be to be consider what will have  be the operation of the law if the lease have be make by parole without deed  and then what will have be its operation if it have be make by deed poll  without estoppel and last what shall be the operation of the law if it be make  by deed indent or by fine which be estoppels in themselves and as to these the  apprentice say a S p die pl in margin more Litt r hut Hardr sheep pract Couns  Bac Abr ante c post b a if a man be seize of land in feesimple and make a  lease for twentyone year to commence present render rend and afterward the  same day make a new lease by raze Entr last edition foe a parole to another  for the same term or for a lesser term this second lease be utter void to all  intent and purpose so that although the first lessee surrender his term to the  lessor or lose his term by reason of a condition break or forfeit it by a  feoff make and by entry of the lessor yet the second lessee shall never have  his term because his lease be void at the beginning for when the lessor have  make the first lease he have then nothing in he but the reversion and the  lessee have the land and the possession of it during the twentyone year so  that for that time the lessor have no interest in he to meddle with the  possession nor authority to contract for it for it be the lessee land for that  time and he only have the possession of it during his term and therefore the  lessor have no power to contract for that which be not his own but another b  die pl b for it be requisite that he who by his contract make another the  possessor of any thing be the proprietor of the same thing or else it be  reasonable that his contract shall be Plowden er p void c vin Abr title  contract c pl c for if I be possess of a horse and sell the horse to another  upon condition that he pay I S for he at Christmas and before Christmas I sell  the horse to another and afterward the first vendee fail of payment at  Christmas so that I reseize the horse the second vendee shall never have he  for at the time of the second contract I have no interest in nor property nor  possession of the horse nor any thing but a condition which be not sufficient  to enable I to contract for the property and possession and therefore the  second contract be mere void so shall the second lease be in the say case but  if the lessor after the lease make for twentyone year grant the reversion by  deed for twentyone year immediate there this grant be good with attornment and  the grantee if he obtain attornment shall have the reversion for twentyone  year which be as long as the first lease continue and he shall have the rend  reserve upon the first lease as incident to it for there the grant be not of  the same thing which the first lessee have for he have the land in possession  and the second grantee have but the reversion of it which be quite a different  thing and of a different nature for possession and reversion be several thing  and mere contrary to each other S p Plowd quaer admit and so the lessor who  have make a lease for twentyone year may by parole make a lease for year to  commence after the determination of the first lease for this second lease be  of another thing for the second lessee be to have the possession after the  first possession and interest be expire so that it be of another thing than  that which the first lessee have d S p h bro lease cro e per gawdy Bac Abr  Plowd quaer Wentw off of exec d but if the lessor who have make a lease for  twentyone year to commence present make another lease by parole for thirtyone  year to commence present also there this second lease be good for the last ten  year only and for no part of the first twentyone year of the second term  although the first lease end within the time by forfeiture or otherwise for as  to those twentyone year the lessor have no power to contract because the first  term of twentyone year stand in the way as it be say before but as to the last  ten year the case be just the same as if he have make a lease for ten year to  Plowden commence from such a day which be the first day after the  determination of the first term of twentyone year by effluxion of time for if  it be end by surrender or other abbreviation yet the ten year shall not  commence until the time of twentyone year be expire and pass for the lease for  thirtyone year make by parole as to the first twentyone year of it be void as  well against the lessor for the rend and all other purpose as against the  lessee and then the last ten year shall commence not after the surrender of  the first lease but after the number of twentyone year be expire at which time  they shall commence for although the contract for thirtyone year be void in  part videlicet for the first twentyone year yet it shall be good for the  residue for in the demise or contract for thirtyone year the term be executory  for every ear and as to the matter of the execution it be the same as if there  have be several a see Litt r a contract one for one year and another for  another year and so for every year and every day several and then although it  be void for the first twentyone year yet it be good for the other ten year  remain as if several contract have be make for they b vin Abr title contract e  pl b so that one and the same contract may be void in part and good in part c  vin Abr title estate b b pl c as if a man who be seize in fee make a lease for  twentyone year to commence ten year afterward and the same day make a second  lease by parole to a stranger for thirtyone year to commence present render  rend there the second lease be good only for the first ten year and void for  the last twentyone year as well against the lessor as against the lessee so  that the lessor shall not have any rend for the last twentyone year nor shall  the second lessee have the land after the first ten year end although the  first lessee before the commencement of his term regrants his term to the  first lessor because the second lease for the last twentyone year be void to  all intent and purpose for the lessor have no authority nor power to contract  Plowden er p with the second lessee for such time inasmuch as he have before  lease the land to the first lessee for that time whereby he have discharge  himself of the land and of all power to contract for it as to that time d p h  bro lease   a more Bac Abr cro e per gawdy ante c vin Abr title estate b b pl  Wentw off of exec contra Plowd quaer d but if a man who be seize in fee make a  lease for life and afterward make a lease to another by parole for forty year  to commence present and within a year afterward the lessee for life die there  the lessee for forty year may enter and shall have the land for as many of the  forty year as be then to come for the first estate for life have no certainty  of continuance because nothing be more incertain than the life of man and  although it be so far certain that the lessee for life shall have the land as  long as he shall live yet how long he shall live be utter incertain and  therefore this can be resemble to the say case of a lease for twentyone year  where the second lease be for thirtyone year for there it be certain that the  first lease will continue for twentyone year and neither more nor less so that  upon such certainty the law can say that the second lease be void for the  first twentyone year because another have the land for that time in which case  the lessor have no power nor interest to contract for the land with another  for that time but yet the second lease be good for the residue of the  thirtyone year videlicet for the last ten year so here the lessor have no  power to contract for the possession during the life of the tenant for life  and therefore if the lessee for life e S p Bac Abr say ante d e surrender yet  the lessee for forty year shall not have the land during his life though after  his life he shall have it for as many of the forty year as be then to come  because in a contract for a lease for year which be but a agreement for the  land for the time every year and day and other part of the time which be to  come be executory as to the lessee and he shall have it if there be no  impediment to the contrary and when the estate for life be end then the  contract which be executory for the time to come shall be execute and the  impediment videlicet the estate for life which make the contract void as long  as the life continue be now remove so that nothing stand in the way of the  contract from thenceforward and so the lessee shall have the residue of the  forty year which be to come after the death of the first lessee for life and  thus he take the law to be touch a present contract for land by parole f hut  Bac Abr vin Abr title estate b b pl ante a f but if a man make a lease for  twentyone year to commence present and the lessee enter and afterward the same  day the lessor make a new lease by deed poll to a stranger for the same year  or for a lesser time there if the first lessee attorns the second lessee shall  have the reversion and the rend reserve upon the first lease g see ante b and  the book there cite g for in the demise of the land the reversion shall pass  with attornment if the possession can for if a man by deed enrol bargain and  sell a acre of land and he have but a reversion in it depend upon a estate for  life the reversion shall pass and every man may use his deed as he himself  please and therefore although the deedpoll speak of a present lease for year  of the land yet the party may use it as a grant of the reversion but so he can  use a demise which be by parole without deed h cro c pl n lev h for a  reversion for year can be grant by parole without write but if the lessee will  use the lease by deedpoll as a present lease for year or if he do not obtain  attornment of the first lessee then such lease by deedpoll be absolute void as  much as if it be without deed so that if the first lease be forfeit or defeat  by condition break the second lessee b deedpoll can enter although the time of  his year be not elapse nor can the lessor have a action of debt for the rend  reserve I vin Abr title faits g a pl I because a contract by deedpoll can make  that to pass which another then enjoy but it be void Plowden a   a die pl skin  Bac Abr sheep pract Couns a but if the second lease be by deed indent or by  fine as our case be Plowden er p then if the first lease be surrender or  defeat by forfeiture or condition break or otherwise end the second lessee may  enter and hold it against the lessor b   Litt b finch finch Bac Abr W Jones  see ante b b for inasmuch as the lease be by indenture or by fine both party  be conclude to say the contrary but that the lessor have the land in  possession to pass and that it pass in possession accord to the tenor of the  lease c see the book next before cite Clayt Plowd queer c for if the lessor  have nothing in the land but purchase it after such lease or if the land  descend to he afterward the lessee may enter upon he by reason of the  conclusion and also the lessee by estoppel shall be compel to pay the rend d  Litt d for Littleton in his chapter of tenant for year say if a man bring a  action of debt for rend reserve upon a lease for year it be a good plea for  the lessee to say that the lessor have nothing in the tenement at the time of  the lease make except the lease be by deed indent in which case such plea do  not lie for the lessee to plead and thus he say stand the law with regard to a  present lease for year make by parole by deedpoll and by indenture or other  matter of estoppel where the land be as long in lease before in our case then  Nicholas trap who make the lease by fine to commence immediate after the Feast  of saint Michael then next follow have nothing in the land but a remainder in  tail and both at that time and at the day when the lease ought to commence his  father and mother hold the land for term of their life in which case the lease  be not mere void for if it have be make by parole and the lessee for life have  die during the life of Nicholas trap Beckingham the lessee may have enter and  have hold the land against Nicholas as lend and inasmuch as the lease be make  by fine which carry a estoppel to every party the lease shall b strong thereby  and so the lease in the life of Nicholas trap shall not be say to be void but  shall be good in estate to have the residue of the year which be not incur in  the life of the tenant for life and by estoppel the lease be a good lease in  possession for all the fiftyfour year but the great matter be when Nicholas  trap die before the commencement of the lease and t he remainder in tail  descend to his two daughter and the proclamation upon the fine be all make  after the death of the tenant in tail whether or no they shall bind the tail  and make the lease for fiftyfour year good against the issue in tail and  hereupon the statute of h cap and of h cap and the branch and the meaning of  they be consider and whereas the say statute of h ordain that all fine levy  with proclamation of any land entail to the person levy the fine or to any of  his ancestor shall after fine engross and proclamation make be adjudge and  accept a sufficient bar and discharge for ever against the say person and  person and their heir claim only by force of any such entail it be object by  the counsel for the defendant and also affirm by the say apprentice e   b and  kelw b e that if the estate give upon which the fine be levy by the tenant in  tail be absolute defeat before the last proclamation make then notwithstanding  all the proclamation afterward pass and be make the estatetail shall no be bar  f   b sheep pract Couns see   a f as if tenant in tail be seize and afterward  he levy a fine to the seize sur conusance de law or upon release and die and  the issue in tail enter before all the proclamation make and afterward all the  proclamation be make the tail be not bar but the issue be remit and be in as  tenant in tail for although the statute of h say that the fine after the  proclamation make shall be a bar to the tail yet these word be so to be  understand that if the fine remain in force until the proclamation be make  then after the proclamation be make it shall be a bar to the tail but when the  issue in tail before all the proclamation make enter where his entry be lawful  there by such entry he have annul the estate which the party to the fine have  and thereby he have annul the fine and be remit to the estatetail and then the  proclamation which proceed afterward and be consummate be of no force inasmuch  as the fine be of no force for the fine which be the Plowden er p principal be  annul the proclamation which be only accessary to the fine must also be annul  and so the general word of the statute which be that the fine after the  proclamation make shall be a bar to the tail be to be construe in this  reasonable sense for else it be idle to say that it shall be a bar after the  proclamation if nothing can be do before the proclamation and the proclamation  be ordain to the intent that those who have right or title shall have notice  of the fine which notice be to give they who have right or title a opportunity  of defeat the fine before the last proclamation by entry claim or action and  to no other purpose be it by which it be to be understand that the entry or  other lawful divest of the possession by he that have right before the last  proclamation make shall aid he that have right or else the proclamation will  but be superfluous for to give notice by the proclamation to those that have  right and when they have notice not to permit they to take the proper method  of prevent and oppose the force of the proclamation will be to a very idle and  frivolous purpose wherefore it appear to be the intent of the maker of the Act  that those who have right may avoid the fine and the force of the proclamation  by entry or other lawful divest of the estate and possession of the land  before the last proclamation Plowden a Poph sheep pract Couns a also it be say  that if tenant in tail of a rend or of a advowson or of tithe or such like  levy a fine thereof to a stranger come Ceo and ill ad de son do and die before  all the proclamation be pass if the issue suffer the possession to continue  accord to the fine until the proclamation be pass the tail be bar for ever but  if he get seize of the rend or of the tithe or of the presentment to the  advowson before the proclamation the whole force of the fine and of the  proclamation be defeat causan how above and it be say if so be the issue can  get seize of the rend or of the tithe or of the presentment to the advowson  before the last proclamation be pass as perhaps he can because it may happen  that no day of payment be incur and that no tithe or avoidance of the advowson  have fall after the acknowledgement of the fine and before the last  proclamation yet if the issue come to the land before the last proclamation be  make and claim the rend or the tithe or to the church and claim the advowson  this be sufficient to defeat the fine and the proclamation and to save the  tail b Litt b for as such claim be sufficient for the lord of a villain to  remove out of the villain such thing purchase by he and to vest they in the  lord as Littleton say so by the same reason in this case such claim shall be  sufficient for the issue in tail to divest such thing out of the conusee and  to revest they in the issue in tail which the law of itself will not otherwise  do although the thing be in tail and although the fine make no c Litt   Litt b  sheep pract Couns c discontinuance d   b Bac Abr sheep pract Couns d but if  tenant in tail of land levy a fine of it to a stranger sur conusance de law  come Ceo and ill ad de son do and die and before all the proclamation be pass  the issue bring a formedon in descender against the conusee and pen the action  all the proclamation pass there it be say the issue shall be bar and the  discontinuee may plead in bar of the tail for ever this fine with proclamation  make pen the writ which be well bring and the reason be because the fine be  not annul before the proclamation be consummate and the stat of h say that ale  fine after the proclamation make shall be accept to all intent and purpose a  sufficient bar to the heir in tail and so this bar make pen the writ be strong  and sufficient enough to bar the heir by the letter of the Act and by the  intent of the maker of it for their intent be most strong against estate tail  and this Act do not allow to the heir in tail who be privy any benefit by  bring of action before the proclamation incur as the statute of h do to  stranger within five year e S p accord die pl   a and pl cro I roll r sheep  pract Couns winch jenk pl Bac Abr west Symb pt foe a e and Thornton say that  if a stranger levy a fine to the tenant in tail come Ceo and ill ad de son do  and he render to he a rend in fee and the proclamation upon the fine incur and  the tenant in tail die the issue shall avoid the Plowden er p rend for he be  remit to the land and the fine shall not bind he for the rend because his  ancestor be not tenant in tail of the rend but of the land so that the rend be  another thing than that which be entail and therefore the fine be not levy of  any thing entail and consequent the rend be out of the provision of the Act of  h f west Symb pt foe b sheep pract Couns say contra wats finish incumb because  the presentation and nomination be in effect the same thing and the fruit and  frill profit of the patronage the thing entail post b but if tenant in tail of  a advowson grant by fine the nomination of a clerk to one and to his heir so  that when the church become void the grantee and his heir may nominate a clerk  to the tenant in tail and his heir and that he or they shall present the clerk  so nominate to the ordinary and the tenant in tail die such fine shall not  bind the issue in tail because there the nomination and the presentation be  distinguish so that the fine be not levy of the thing entail dodder finish  Pars wats finish incumb f so be it he say where tenant in tail of a advowson  render or grant to one by fine the nomination of a clerk to the advowson g the  authority of the case here put be great impeach by the opinion of Hobart and  Harvey I in the case of heliot v sander where they hold that if tenant in tail  of a rentcharge issue out of a manor levy a fine of the manor this be a bar of  the rend because the fine be levy of the land inclusive give the rend and they  strong deny this case put by Thornton to be law cro I roll r winch jenk pl yet  quaere that case for there appear to be no fine levy of the rend which be the  thin entail and not the land shall it seem descend to the issue till the  entail thereof be bar by a fine and with the opinion of Thornton here agree  that of winch I Brownl sheep pract Couns west Symb pt foe b S p die pl g and  he say if tenant in tail of a rend seize the tenant of the land and levy a  fine with proclamation of the land to a stranger and the proclamation pass the  heir in tail shall not be bind for the rend because the fine be not levy of it  but of the land which be another thing quod to be concession but it be say  that in the principal case the render of the tenant in tail be of the land  which be entail so that it be of the thingitself entail and therefore if the  lease be not defeat before the last proclamation make the proclamation shall  bind the tail here as to the lease as much as they shall do in a freehold or  inheritance and therefore whether or no the lease be defeat before the  proclamation pass be make the principal point of the case and as to this it be  say on the part of the defendant that it be to be consider that Nicholas trap  who make the lease be but tenant in tail in remainder depend upon a estate for  two life and the lease make to commence immediate after the Feast of saint  Michael then next follow after the fine levy can not take effect nor be  execute until after the death of the tenant for life and it may so happen that  it never can be execute for if either of the tenant for life shall outlive the  term of fiftyfour year then the lease for year can never commence or take  effect in deed and the issue in tail who do not come in by the donee in tail  only but by the donor shall not be estopped to show the estate of the tenant  for life which disturb the commencement of the lease at the day limit in the  fine but he may show the truth of the matter well enough and it be confess on  all side that the survivor of the tenant for life die in the six year of the  reign of the present queen so that the truth be confess all estoppel be take  away h same diversity   b west Symb pt foe b see Sav it be say that this  difference be not clear see die a h and although by the statute the issue in  tail shall not aver continuance Plowden of the possession against the fine of  his ancestor come Ceo and ill ad de son do yet upon other fine as this be here  he shall not be estopped and inasmuch as the tenant for life be alive at the  time of the lease make they may possible have outlive the term of fiftyfour  year and if they have do so then the lease will never have take effect and if  they die within the fiftyfour year the lease may take effect so that it  Plowden er p rest upon a contingency whether it shall ever be a lease or not  which contingency be incertain make it also incertain whether the lease shall  ever take effect or not and therefore it can not be precise call a lease but a  title to or possibility of a lease and then when Nicholas the lessor die  before the time limit for the commencement of the lease the remainder in tail  by his death descend to his two daughter and heir which remainder be in they  without any entry or claim as full as it be in his father for the continuance  of the estate of the tenant for life make the remainder to be in the daughter  of Nicholas as actual and full as a remainder can be in any one and the  descent of the remainder to they and their seize of it wrought in they a  remitter to the remainder which remitter purge and discharge the remainder  from the say title to or possibility of the lease a post c a for if Nicholas  who have the remainder in tail have grant a rentcharge out of it to a stranger  and have die and the remainder have descend to his daughter they shall have  hold it discharge of the rend and if they have grant the remainder by fine to  a stranger and afterward the tenant for life have die the stranger shall have  hold the land discharge of the rend because the descent of the remainder remit  the daughter and purge the remainder of all encumbrance as full as the descent  of the possession in tail purge the possession of all encumbrance and if  Nicholas have make a lease for forty year to commence after the death of the  tenant for life the descent to the daughter shall have avoid such lease which  have a certain commencement and a certain end a strong then it shall avoid  this lease which can well be call a lease but rather a possibility of or title  to a lease for the daughter can make claim to avoid the lease because they  themselves have the remainder of the land and they can make claim in their own  land as they may to have a thing out of the land of another as in the case put  of a rend and such like but the operation of law without claim give to they by  the descent and remitter the like advantage by way of discharge as they shall  have by claim in the land of another and then if the descent and remitter have  avoid the lease thereby it have defeat the fine as full as the entry of the  issue in tail shall do in the case before specify where the issue in tail  after the seize of his father enter upon the conusee or obtain seize of the  rend before the proclamation pass and then the proclamation which be all make  after the descent and remitter be of no force but be as absolute void as the  fine itself be and so the lease for fiftyfour lease and also the estate of the  say Robert smith the plaintiff be void and therefore he shall be bar on the  other side it be argue that the lease for fiftyfour year be good against  Nicholas trap himself upon this contingency that the tenant for life have die  before he for the cause before show and that too although the lease have not  be by fine but by parole or deedpoll in which there be no estoppel and when  Nicholas die and the remainder in tail descend to his daughter the lease shall  not be adjudge in law to be present void as to the daughter because there be a  rend reserve upon it so that there be a recompense for the land which may be  as advantageous to the issue as it will be to have the lease void at least it  will be of no damage to he b lev post Manxels case big on recov b and the  issue in tail shall never avoid thing do by his ancestor but where they be or  may be to his disadvantage c t Edward pl Fitzherbert charge bro tail   Litt b    b b   b roll Abr g pl Bulst Brownl hard keb and t raym show Chan Cas Kitch  Bac Abr post Manxels case big on recov Curson c for in the case of Octavian  lombard in Edward where tenant in tail upon defeasible title grant a  rentcharge of pound to he that have right for a release of his right the court  be of opinion that the rentcharge shall be levy upon the issue of the tenant  in tail because the grant of the rend be for the release of the right so that  the issue have benefit thereby for which reason he shall not avoid the grant d  h Edward pl Bulst d so it seem by Edward that if land be give in tail so that  the donee may alien for the profit of his issue this be a good Plowden er p  condition or power limit to he e see post Manxels case g and the book there  cite e and if the tenant in tail suffer a common recovery in which he vouch  and have recompense the issue shall be bind because he be not damnified  thereby f   b Curson see ante b f and so if he alien with warranty and leaves  asset to his issue the issue shall not avoid the alienation because it be not  to his disadvantage g see show g so here inasmuch as a rend be reserve upon  the lease it may be that this rend be equivalent to or more than the value of  the land and also it may be that the land lie at a great distance from the  daughter so that it may be more advantageous for they to have it in lease and  to receive the value of it in rend than to manure and cultivate it themselves  and therefore it do not appear that this lease be to their disadvantage and  put the case that the tenant for life happen to die and that the lessee enter  and at the day of payment pay the rend to the daughter and they accept it by  that acceptance they have affirm the lease and they shall not avoid it  afterward during their life which can not be so if the law be to adjudge the  lease void upon the descent of Plowden the remainder in tail and here the  daughter may have have a action of debt for all the arrear incur after the  death of their father and in the life of the tenant for life or of the  survivor of they for on this part there be a estoppel that be to say  Beckingham the lessee and his executor be estopped by the fine to say  otherwise but that the lease take effect immediate after the Feast of saint  Michael next after the fine and that they ought to pay the arrear unless they  can allege a entry in fact and a expulsion by the tenant for life claim by  title paramount the lease for life and this benefit will be lose to they if  the law shall adjudge the lease void by the descent a   Litt b roll Abr pl h  pl die pl in margin Bac Abr Mod j Carth per holt CJ but the other three doubt  see side opee v Thomasius l p hold by all the judge except Twisden a and if  tenant in tail make a lease for forty year to commence ten year after render  rend and die the day after the issue in tail enter and make a feoff before the  ten year be lapse here it can be present affirm that the entry of the issue  have avoid the lease which be executory and not execute for if the feoff waive  the possession of the land at the end of ten year and the lessee enter and  occupy the land and at the next day of payment pay the rend to the feoff who  accept it the lease be thereby make good and the election for the allowance of  the lease remain to the feoff as well as to the issue and so peradventure for  the b see show b disallowance of it for perhaps he may have have a action of  trespass against the lessee for enter and then if the law be so that the entry  of the issue into the land before the lease commence shall not be adjudge a  avoidance of the lease for year executory a strong in our case the descent of  the remainder where there be no entry shall not avoid the lease which be  executory c see die pl keb t raym   b cro e c but in the case put of the grant  of a rentcharge out of the remainder by Nicholas trap this if he have make any  shall have be discharge by the descent of the remainder to the daughter for it  can be presume to be for the benefit of they who be his issue but to their  disadvantage because there be not quid pro quo but it be a mere charge and  nothing else for which reason the law do not suspend his gift of it as a  thingindifferent but say that it be a charge to the issue and can be for his  benefit and therefore it adjudge it to be void d ass pl bro charge execution h  Edward Fitzherbert charge Bridgm d and hereupon the apprentice say that he  well allow the judgement in Cauxtons case in ass where tenant in tail grant a  rentcharge and die the issue enter and make a feoff and take back a estate and  a assize be bring for the rend and there it be adjudge that the land be  discharge forasmuch as the issue in tail have enter after the death of his  ancestor who charge it Plowden er p but both he and Bromley disallow the  judgement in the case of Edward e h Edward Fitzherbert Resceit ass pl say  contra ass pl bro statute merchant p h b per Paston bro execution statute  merchant Bridgm e where it be adjudge that if tenant in tail be bind in a  statutemerchant and die and the issue enter into the land entail and alien the  land shall be bind which they say be not so for the remitter discharge the  execution here as well as it do the rentcharge in the case before f p Edward a  per Litt ante c and the other book there cite f and so it be say if tenant in  tail alien the tree and die before they be cut and the issue enter the vendee  shall not have the tree as it be put in Edward so that they say there be a  diversify when the thing may be to the benefit of the issue in tail and when  to his charge wherefore the demise and the contract by fine in our case be not  defeat by the descent of the remainder but shall be say to continue and then  the proclamation come afterward fortify the lease and take from the heir all  election of disallowance of it for inasmuch as the lease have continuance when  the proclamation be make whether it be a lease upon a contingency or otherwise  the word of the Act make the fine to be for ever a sufficient bar for the term  against the tail g   b   b g but the apprentice say that if there be tenant in  tail and a stranger by fine acknowledge the tenement to be the right of the  tenant in tail come Ceo and ill ad de son do and the tenant in tail grant and  render the land to he again for life in tail or in fee and die before all the  proclamation be make and before the conusee have enter and the issue enter and  afterward all the proclamation pass in this case the conusee to who the land  be render shall never have a seine facias to execute the fine nor can he enter  h   b h for when the tenant in tail have render the land yet the land be not  out of he until the conusee have execute the fine by entry or writ of  execution and therefore when the tenant in tail die before execution the land  descend to his issue and when he enter he be remit and thereby he utter avoid  the fine and the estate render by it and then every proclamation make  afterward be void and if the conusee bring a scare facias against the issue to  have execution he shall plead in bar his remitter and so shall exclude he of  execution and entry also but in our case there be no such avoidance of the  fine for inasmuch as the lease for fiftyfour year may be to the benefit of the  issue in tail the law will not say that the descent have avoid it but that it  continue until the proclamation be pass and when they be pass the lease become  indefeasible whereupon they pray judgement for the plaintiff and many other  thing be say on both side which I have here omit it be my design to make a  brief report of this case and therefore I have only give concise the reason  and case above write which be the most weighty and material in my apprehension  and after these argument the justice take advice and in Hillary term in the  eleven year of the reign of queen Elizabeth they command the prothonotary to  enter judgement for the Plowden plaintiff because they take the law to be that  the lease be good and that the fine with proclamation be a sufficient bar for  the term against the estatetail but the judgement be not then enter because  the plaintiff neglect to come to the prothonotary to require it and to pay for  it and the judgement remain unentered until easter term in the fifteen year of  the reign of queen Elizabeth and then the plaintiff come to the bar by his  counsel and show how that the judgement be not enter through his default and  pray that it may be now e litter and the court advice thereupon until another  day at which day upon the plaintiff prayer they order the judgement to be  enter which be do accord and be as follow the rest of the record judgement  whereupon all and singular the premise be see and by the court of the lady the  queen here more full understand and mature deliberation be thereupon have for  that it seem to the court of the say lady the queen here that the plea  aforesaid by the aforesaid John smith in manner and form aforesaid above plead  in bar to the cognizance aforesaid and the matter in the same Plowden er p  contain be good and sufficient in law to preclude the say Thomas Stapleton and  John he cock from have their cognizance aforesaid therefore it be consider  that the aforesaid Robert smith his damage as well by occasion of the take  aforesaid c as for his cost and charge by he about his suit in this behalf  expend ought to recover c but because it be not know to the court of the say  lady the queen now here what damage the aforesaid Robert smith have sustain as  well by occasion of the take aforesaid c as for his cost and charge by he  about his suit in this behalf expend therefore the sheriff be command that by  the oath of good and lawful man of his bailiwick he diligent inquire what  damage the aforesaid Robert smith have sustain as well by the occasion  aforesaid as for his cost and charge aforesaid and the inquisition which he  shall take thereupon he send to the lady the queen on the octave of the holy  Trinity wheresoever c under the seal c and the seal c together with the royal  writ to he thereof direct c the same day as give to the aforesaid Robert smith  c