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.

CXXV. Savell and Badcocks Case. Mich. 26 Eliz. In the Kings Bench.

SAvell brought an Action of Trespass against Badcock, and de∣clared, That Edw. Savell was seised of the Mannor of D. and leased the same for years to Henry Savell, who died, having made the Plaintiff his Executor, who entred, and was possessed until the first day of January, at which time the Trespass was done. The Defendant pleaded, Not guilty. And it was given in Evidence on the Plaintiffs part, That the said Ed. Savell was seised, and leased to the said Henry Savell for years, who so posses∣sed, reciting the said Lease, Demised the said Mannor to Sir William Cordell, Master of the Rolls, to have to him immedi∣ately after the decease of the said Henry for so many years of the said Term which at the time of his death should be unexpired, if Dorothy the Wife of the said Henry should so long live: Henry died, Sir William Cordell entred; Dorothy died within the Term; the Plaintiff the Executor of Henry entred, and was possessed until the first day of Januarii, 23 Eliz. at which day the Trespass was done. On the Defendants part it was given in Evidence, That

after the Grant to Sir William Cordell, the said Henry and Ed∣ward joyned in a fine Sur Conusans de droit, &c. to a stranger, who granted and rendred the Land to the said Henry and his Heirs, who devised the same to the said Dorothy his Wife for life, the remainder to Cordell Savell in tail, the remainder over, and died; Dorothy entred, and died; Cordell Savell, 22 Eliz. conveyed the Mannor by Fine to one Williamson, who entred; and afterwards and before the Trespass aforesaid, viz. 14 January, 23 Eliz. lea∣sed to the Defendant for years, by force of which the Defendant entred. And upon this Evidence, there was a Demurrer in Law. And it was argued by Shuttleworth, who was made Serjeant the last Term. And he said, That the Demise made by Henry Savell is not in the inconveniency of the maxim, that Henry by the said Grant should reserve a lesser Estate to himself, than he had before; For here by this Grant, no present interest passeth by Sir William Cordell, but the effect of the Grant rests upon a Contin∣gency; scil. if he himself dieth within the Term, &c. until which time the whole interest of the Term doth remain in the said Henry Savell subject to the Contingency aforesaid, and amounts to so much; as if the said Henry had granted the same to Sir William Cordell, if he himself should die within the Term: in which Case, it is a limitation when the said Grant shall take effect. As if I grant unto you my Lease for so many years as J.S. shall name, the same is a good Grant to take effect upon the naming of J.S. Then the Case being so, When Henry Savell the Lessee, and Edward Savell the Lessor joyn in a Fine, ut supra, now the possibility of the remnant of the Term which upon the death of Henry Savell and Dorothy his Wife within the Term might accrue to the Executors of the said Henry Savell, is not extinct by the Fine, but doth remain Quodam modo in Henry Savell, to vest in his Executors, if it should happen; And here is not any conclusion by the Fine in this Case; for Henry at the time of the Fine had not in him any Interest, which is now claimed, and so cannot be bound by the Fine: For the In∣terest in respect of which the Plaintiff hath cause of Action, begin∣eth after the death of Henry who levied the Fine; and first accrueth to his Executors, and so shall not be touched by the Fine: and therefore if such a Lessee for years granteth his Term to J.S. Proviso, That if J.S. dieth within the Term, that he himself shall have it again; and afterwards the Grantor joyns with his Lessor in a Fine, and afterwards within the Term J.S. dieth, now the Grantor notwithstanding the Fine shall have the residue of the Term; Then, when the Conusee by the Fine regrants the Land to Henry in Fee, that possibility to have after the death of the Do∣nor cannot be drowned in the Fee simple for the reason aforesaid; And then when Henry deviseth the same to his Wife, that possibi∣lity doth pass to Dorothy, because it was never in the Devi∣sor; and then when Dorothy dieth within the Term, the Residue of the said Term shall accrue to the Plaintiff as Executor of

Henry. Cook, contrary, And he held, The Grant to Sir Wil∣liam Cordell is utterly void; And he agreed, That Grants al∣though in themselves they be uncertain; yet if they may be re∣duced to certain, they are good: but here is no expectance of any certainty in the life of Henry; for the Term limited to Sir Wil∣liam Cordell, is not to begin till the death of Henry, and is to end upon the death of Dorothy, so as here is not any certain beginning, nor certain end; and here this Grant cannot be reduced to any Certainty during the life of the Grantor, and so for that cause is void, See Plow. Com. 6 Eliz. Say and Fullers Case, 273. by Weston, Iustice, If A. makes a Lease for so many years as J.S. shall name, if J.S. in the life of A. name a certain number of years, then the Lease is good; but if the Lease had been for so many years as my Executors shall name, that can never be made good in my life; And upon that reason it is, That an Attornment ought to be made in the life of the Grantor, or else no Reversion shall pass. So 33 E. 3. Entry, 79. A Bishop aliens, and after his death, the Dean & Chapter confirms, it is a void Confirmation. And 7 E. 6. Br. Grants, 154. A Man possessed of a Lease for 40 years, grants so many of the said years which shall be to come at the time of his death, it is a void Grant for the incertainty. Afterwards, Shuttleworth moved another point, viz. The Plaintiff hath declared of a Trespass done, 1 Januarii, 23 Eliz. The Defendant shews in Evidence, a Lease for years to him made 14 Januarii, the same year, which is 13 days after the Trespass whereof the Plaintiff hath declared, and it shall not be intended that the Plaintiff had another Title than that which he hath alledged; and forasmuch as he hath not disclo∣sed in himself any Title Tempore transgressionis the Plaintiff should punish him in respect of his first possession without any other Title. And although it may be Objected, That where the Defen∣dant hath given in Evidence, That Williamson leased to the De∣fendant, that is not sufficient; and the words subsequent 14 Janu∣arii, are void as a nugation and matter of surplusage; Truly, the Law is contrary; for rather those words ante Transgressionem shall be void, because too general, and shall give way to the sub∣sequent words after the videlicet, because they are special and certain: As the Case late adjudged; The Archbishop of Canter∣bury leased three parcels of Land, rendring Rent of 8 l. per annum; viz. for one parcel, 5 l. for another, 50 s. and for the third, 40, which amounts to 9 l. 10 s. It was adjudged, That the videlicet, and the words subsequent concerning the special re∣servation of the Rent, was utterly void, because contrary to the premisses, which were certain, viz. 8 l. and that the Fermor should pay but 8 l. according to the general reservation: but in our case, the words precedent are general, i. e. ante Transgressionem, and therefore the words subsequent, which are special and certain, shall be taken, and the general words rejected; As in Trespass, the Defen∣dant pleads, That A. was seised of the Land where, and held it of

the Defendant; and that the said A. 1 die Maii, 6 Eliz. aliened the said Land in Mortmain, for which he (within a year after) viz. 4 Maii, Anno 7 Eliz. entred, now the same is no bar; for upon the evidence it appeareth, that the Lord hath surceased his time, and the words, (within the year) shall not help him, for they are too general; and therefore, at the subsequent words (viz. &c.) Cook on the Defendants part took Exception; For it appeareth here upon the Evidence of the Defendant, which is confessed by the Demur∣rer of the Plaintiff, That upon this matter the Plaintiff cannot punish the Defendant for this Trespass; for he was not an imme∣diate Trespassor to the Plaintiff; for the Plaintiff hath declared upon a Trespass done 1 Januarii, 23 Eliz. And it is given in Evidence on the part of the Defendant, and confessed by the Plain∣tiff, &c. That 22 Eliz. Cordell Savell levied a Fine to Williamson, by force of which the said Williamson entred, and was seised; and so seised, 14 Januarii, 23 Eliz. leased to the Defendant: Now up∣on this matter the Plaintiff cannot have Trespass, but the De∣fendant; for Williamson was the immediate Trespassor to him; for he entred 22 Eliz. And at length, after deliberation had of the premisses by the Court, The Court moved the Plaintiff to discon∣tinue his suit, and to bring de novo a new Action, in which the matter in Law might come into Iudgment without any other Ex∣ception. But the Plaintiff would not agree to it. Wherefore it was said by Wray, Chief Iustice, with the consent of his Com∣panions, Begin again at your peril; for we are all agreed, That you cannot have Judgment upon this Action.