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.

CXXI. Pepy's Case. Pasch. 25 Eliz. In the Common Pleas.

WAste was brought by F. and his Wife against Pepy; and declared, That the said Pepy was seised, and en∣feoffed certain persons to the use of himself for life, and afterwards to the use of the Wife of the Plaintiff, and her Heirs: The Defendant pleaded, That the said Feoff∣ment was to the use of himself and his Heirs in Fee, &c. absque hoc, that it was to the uses, as in the Count; Vpon which they were at Issue: And it was found by Verdict, That the said Feoff∣ment was to the uses contained in the Count; but further found, That the Estate of the Defendant by the Limitation of the use was priviledged with the impunity of Waste; scil. without Im∣peachment of Waste. It was moved, If upon that Verdict, The Plaintiff should have Iudgment. Anderson and Rhodes, Iustices, conceived, That he should, for that the matter in Issue is found for the Plaintiff; and that is, the Feoffment to uses contained in the Count, and this impunity of Waste is a Forreign matter not within the Charge of the Iury; and therefore the finding of the same is but matter of surplusage: As if I plead a Feoffment of J. S. to which the other pleads, That he did not enfeoff, and the Iury find a Conditional Feoffment, the Court shall not respect the finding of the Condition, for it was not in Issue, and no ad∣vantage shall be ever had of such a Liberty if it be not pleaded, 30 H. 8. Dyer 41. In Dower, the Tenant pleaded, Ne un{que} seisi que Dower, &c. The Tenant pleaded, That before the Cover∣ture of the Demandant, one A. was seised, and gave the Land whereof Dower is demanded to the Husband of the Demandant in tail, who made a Feoffment; A stranger took the Demandant to Wife, took back an Estate in Fee, and died seised, having Issue inheritable: Now although upon the truth of the matter she is n••t Dowable de jure, yet forasmuch as the parties were at Issue upon a point certain, no forrein, nor strange matter not in Que∣stion betwixt the parties shall be respected in the point of Iudg∣ment: But if the Defendant had pleaded it in Bar, he might have foreclosed the Demandant of her Dower. See 38 Ass. 27. 47 E. 19. In a Praecipe quod reddat upon the default of the Te∣nant, came one and shewed, How that the Tenant who made de∣fault, was but Tenant for life of the Lands in demand, the Re∣version in Fee to himself, and prayed to be received: The De∣mandant counterpleaded the Resceit, Dicendo, That the Te∣nant had Fee, &c. Vpon which, Issue was taken: And it was found, That neither the Tenant, nor he who prayed to be recei∣ved, had any thing in the Land. And in that Case, The Court did not regard the matter which was superfluous in the Verdict; For

they were at Issue upon a point certain; scil. whether the Tenant was seised in Fee: For it is confessed of the one side, and of the other, that he had an Estate for life, and of that matter the Iury was not charged, and they are not to enquire of that; And so it is found against the Demandant, by which the Resceit was grant∣ed. See 7 H. 6. 20. The parties were at Issue upon a Dying seised; which is found by Verdict; but the Iury find further, That the other party made continual Claim: The said continual Claim shall not be respected in point of Iudgment, because it was not pleaded in Avoidance of the Disceit, &c. Windham, Iustice, to the contrary, because it appeareth to us upon the Verdict, That the Plaintiff hath not cause of Action, and therefore he shall not have Iudgment: As in Detinue, the Plaintiff declares upon a Baylment by his own hands; The Defendant pleads, Ne De∣tinue pas, the Iury find the Detinue but upon Baylment by another hand: In that case notwithstanding that the Detinue be found; yet the Plaintiff shall not have Iudgment. But Anderson, Rhodes, and Periam conceived, That in the principal Case Iudgment should be given for the Plaintiff: For in no case the party shall have ad∣vantage of that liberty of impunity of Waste, if he doth not plead it; And the Iurors are not to meddle with any matter which is not in issue; and if they do, It is but matter of surplusage, and to no purpose; and afterwards, Iudgment was given for the Plain∣tiff. See the Number Roll, Pasch. 25 Eliz. Rot. 602.