The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CXIV. Segar and Boyntons Case. Mich. 21 Eliz. In the Common Pleas.

* 1.1IN Trespass, the Case was this; King Henry the 8th, Anno 27 of his Reign, gave the Mannor of D. to Sir Edward Boyn∣ton, Knight, and to the Heirs Males of his body; Sir Edward Boynton had Issue Andrew his eldest Son, and C. the Defen∣dant his younger Son, and died: Andrew Boynton Covenan∣ted by Indenture with the Lord Seymore, that the said Andrew Boynton would assure the said Mannor to the use of himself for life, the Remainder to the said Lord and his Heirs: The said Lord Seymore in recompence thereof, should assure other Lands to the use of himself for life, the remainder to the use of the said Andrew Boynton in tail; who 37 H. 8. levyed a Fine of the said Mannor without proclamations to two strangers, to the uses according to the said Agreement; and before any Assu∣rance made by the said Lord, The said Lord was Attainted of Treason, and all his Lands were forfeited to the King: And af∣terwards the said Andrew Boynton made a Suggestion to Queen Mary, of the whole matter; and upon his humble Petition, the said Queen by her Letters Patents reciting the said Mischief, &c. et praemissa considerans, et annuens Petitioni illius, granted to him the Mannor aforesaid; and further de ampliori gratia sua, Relea∣sed to the said Andrew Boynton all her Right, Possession, &c. which came to her ratione attincturae praedict', vel in manibus nostris exi∣stant, vel existere deberent: After which, viz. 5 Eliz. Andrew Boynton levied a Fine to the Plaintiff with proclamations, and died without Issue. And, the Defendant as Issue in tail entred. Puckering, Serjeant; It is to see, 1. If by the words of the Let∣ters Patents of Queen Mary, viz. de ampliori sua gratia, &c. the Reversion in Fee which the Queen had, passed or not. 2. Admit∣ting that the Reversion did not pass, Then if the Fine levied by Andrew Boynton, 5 Eliz. to the Plaintiff, the Reversion being in the Queen, be a Bar to the Issue; For when the first Fine was levied 37 H. 8. which was levied without proclamations, the same shall not bind the Issue in tail, neither as to the Right, nor to the Entry, for it is not any Discontinuance, because the Reversion is in the King, as of things which lie in Discontinuance, Rent, Common, &c. For such Fine is a Fine at the Common Law, and not within the Statute of 4 H. 7. And such a Fine is void against the Issue: But if such a Fine without proclamations be levied of a thing which lieth in Discontinuance, then such a Fine is not void, but voidable by a Formedon: And therefore this Fine, in the Case at Bar, being levied without proclamations of Lands entailed, whereof the Reversion is in the King at the time of the Fine le∣vied, shall not bind the Issue; And by such Fine the Conusee hath

which Fee was forfeited to the Queen by the Attainder of the Lord Seymore, and that the Queen immediately restored to Andrew Boynton, because the Lord Seymore had not according to Agree∣ment betwixt them, assured his Lands to the said Andrew Boyn∣ton in Recompence; For the Indentures themselves were not sufficient to raise any use. See acc. 1 Mar. Dyer, 96. As to the point he conceived, That nothing passed of the Reversion, For the Grant hath reference to the words, All his Right, Possession, &c. which came to her ratione attincturae, and all the residue of the Grant, ought to have reference to that, to the ratione attincturae praedict. which was the foundation of the whole grant; And here the intent of the Queen was not to other intent, but only to restore Andrew Boynton to the said Mannor, and to his ancient Estate in it; And nothing appears in the said Letters Patents by which it might appear, that the Queen was apprised of her Reversion which she had by descent, and therefore the same cannnot pass by ge∣neral words: If the King grants the Goods and Chattels of all those who have done any Trespass for which vitam amittere debent, The Goods of him who is Attainted of Treason, shall not be for∣feited or granted by such general words: 8 H. 4. 2.* 1.2 The King grants omnia catalla Tenentium suorum qualitercun{que} damnatorum, the same doth not extend to the Goods of him who is condemned for Treason. See 22 Ass. 49. So in our Case, the Patent shall not serve to two Intents, and not to pass two Interests by these general words; and then nothing passeth but the Fee determin∣able which was conveyed to the Lord Seymore, and forfeited by the Attainder. Then it is to be considered, How after the said Grant, the said Andrew Seymore is seised; And he conceived, That he should be in of the said Fee determinable, and not of an Estate in tail, against his own Fine; and then if he be not seised by force of the Tail at the time of the Fine levied, 5 Eliz. the same Fine can∣not bind the entail: But admitting, That at the time of the second Fine levied, that he was in of an Estate in tail, yet that Fine shall not bar the Issue; For first, This Fine cannot make any Discon∣tinuance, because that the Reversion in Fee is in the King, which is not touched by the Fine. See the Case of Saunders, Where A. makes a Lease for years, to begin at a day to come, and after∣wards levies a Fine to a stranger with proclamations, and the 5 years pass, and afterwards at the day of the beginning of the said Lease, the Lessee enters; his Entry is lawful, and he shall not be bounden by the Nonclaim; and so it was adjudged in Saunders and Starkies Case. Vide inde Saffins Case, 3 Jac. Cook 5 Part, 123, 124. After the making of the Statute of 4 H. 7. of Fines, It was much doubted, If the Issues of Common Tenants in tail should be bound by a Fine with proclamations, because upon the death of their Ancestors, they are as new Purchasors per formam Doni. And therefore it was provided by 32 H. 8. That the said Statute of 4 H. 7. should extend to such Common entails; but there was

no doubt of an Estate tail of the gift of the King. And see Mich. 15 & 16 Eliz. Rot. 1474. between Jackson and Darcy, in a Par∣titione facienda, the Case was, Tenant in tail, the remainder to the King, after the Statute of 32 H. 8. levied a Fine with procla∣mations, and it was adjudged, That the same should bind the Issues; The Act of 32 H. 8. doth not extend but where the Rever∣sion is in the King, but no mention is there of a Remainder, be∣cause that the words of the said Act are general of all Tenants in tail; The makers of the Act perceiving, That it might be doubted, that the generality of the words might include all Estates tails of the gift of the King, they restrained the words in a special man∣ner; as appeareth by the last Proviso of the same Act, Nor to any Fines heretofore levied or hereafter to be levied by any person or persons of any Mannors, &c. before the levying of the said Fine, gi∣ven, granted or assigned to the person or persons levying the said Fine, or to any of his or their Ancestors in tail by Letters Pa∣tents, or Act of Parliament, the Reversion whereof at the time of the levying of such Fine was in the King: And so such Estates are excepted, And that in such Cases, where such Fines are levied, they shall be of such force as they should be if the said Act had not been made. And therefore it seemed to the said Parliament, That such Estate tails of the gift of the King were not bounden by the Statute of 4 H. 7. for otherwise, the said Proviso or Exception had been frivolous. Walmesley, Serjeant, to the contrary; And he agreed, That the first Fine was not any Discontinuance; and yet he conceived it is not altogether void against the Issues before that they entred; For no right remains in the Conusor against his Fine: And also he conceived, That this Clause, ex uberiori gra∣tia, did extend to pass more than passed before; For he conceived, That the Queen intended more liberally, viz. the Reversion; For this is not any matter of Prerogative, but the same is a matter of Interest, which might also in the Kings Case pass out of the King by general words. See 3 H. 7. 6 & 7 Br. Patents, 48. A Grant of the King ex insinuatione, doth not hinder the force of the words, ex mero motu. And it was the Opinion of the whole Court, That the Reversion which was in the King did not pass by that Grant; For the whole scope of the Patent was, as he conceived, to grant only that which the King had then ratione attincturae. Anderson conceived the Patent insufficient, because the Petition was not full and certain; Also he said, That ex speciali gratia, &c. would not help this Case; For the Estate tail is not recited, but only that he was seised de Statu haereditario, &c. so the Queen was de∣ceived, &c. Periam contrary, The Queen was advised of the Mis∣chief, and granted such Estate with which he parted by the Fine. And as to the other Point, Walmesley conceived, That the Fine with proclamations should bind the tail: And as to the Objection which hath been made, That the Conusor at the time of the Fine levied, was not seised by force of the entail; The same had been a

good matter to have alledged to avoid a Common Recovery in the Tenant to the Praecipe, but not to this purpose: For if there be Tenant in tail, and he levieth a Fine, although he was not seised at the time of the Fine levied by force of the entail, yet such a Fine shall bind the issue; So if Tenant in tail discontinueth, and disseiseth the Discontinuee, and so levies a Fine. And he concei∣ved, That the issue in tail is bound by the Statute of 4 H. 7. even of the Gift of the King. See 19 H. 8. 6 & 7. Where it is holden, That the Issue in tail is bound by the Statute of 4 H. 7. And where it hath been Objected, That it doth not extend but to such Fines which make Discontinuance at the Common Law, The same is not so: For if Tenant in tail of a Rent, or Common, levieth a Fine with proclamations, it is clear, that the issues shall be barred by it. And he much relyed upon 29 H. 8. Dyer, 32. Tenant in tail of the Gift of the King levieth a Fine, or suffereth a Common Re∣covery, although it be not a Discontinuance, because that the Re∣version is in the King; yet it is a bar unto the Issue. But Note, That that was before the Statute of 34 H. 8. See Wisemans Case, 27 Eliz. Cook 2 Part. And see the Lord Staffords Case, 7 Jac. Cook 8 Part, 78.

Notes

• * 1.1

  2 Len. 156.
• * 1.2

  Vid. Roll. Tit. Prerogat.