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.

CCXXXVI. Venable's Case. Mich. 29 Eliz. In the Kings Bench.

THe Case was;* 1.1 A Lease was made to A. and B. for their lives, the remainder to Tho. Venables in tail; who 3 Eliz. was attainted of Felony: 23 Eliz. there was a General Pardon. Tho. Venables, 24 Eliz. levied a Fine, and suffered a Recovery to the use of Harris, Serjeant: Office is found, Harris traversed the Office; and thereupon was a Demurrer: It was argued by Leake, That Traverse did not lie in this Case; 4 H. 7. 7 Where the King is entituled by double matter of Record, the party shall not be admitted to his Traverse, nor to his Monstrans de Droit, but is put to his Petition. Which see, 3 E. 4. 23. in the Case of the Earl of Northumberland; Where Tenant of the King is At∣tainted of Treason, and the same is found by Office. See also 11 H. 4. in the Case of the Duke of Norfolk; And the same is not helped by the Statute of 2 E. 6. Cap. 8. for the words are, Untruly found by Office, but here the Office is true: By this Attainder, Tho. Venables is utterly disabled to do any Act; For by Bracton, a Person attainted forisfacit Patriam, Regnum, & Haere∣ditatem suam, 13 E. 4. One was attainted of Felony: And before Office found, the King granted over his Lands. Also he is not helped by the General Pardon; For before the General Pardon, he had a special Pardon; therefore the General Pardon nihil ope∣ratur as to him: But by the Iustices, the forfeiture doth remain until the General Pardon.

Harris, to the contrary. And he put the Case of Sir James Ormond, 4 H. 7. 7. Where the King is entituled by matter of Record, and the subject confesseth the title of the King, and avoids it by as high matter as that is for the King, Traverse in that case lieth: and if the King be entituled by double matter of Record, if the party avoids one of the said Records by another Record, he shall be admitted to his Traverse; And so here we have the Par∣don which is a Record, and that shall avoid the Record for the King: And here the Pardon hath purged the forfeiture in respect of the Offence. And he said, That Tenant in tail being attaint∣ed of Felony, shall not lose his Lands, but the profits only, for he hath his Interest by the Will of the Donor, and it is a Confidence reposed in him; and as Walsingham's Case is he cannot grant over his Estate. And see, in Wroth's Case, Annuity granted pro Con∣silio impendendo, cannot be granted over, or forfeited, for there is a Confidence. See Empson's Case, Dyer, 2. and, 29 Ass. 60. If the Issue in tail be Outlawed of Felony in the life of his Father, and gets his Pardon in the life of his Father, after the death of his Father he may enter. But by Thorp, If the Issue in tail gets his Pardon after the death of his Father, then the King shall have the profits of the Lands during the life of the Issue. And the Case of

Cardinal Pool was debated in the Parliament, 27 Eliz. That he being Dean of Exeter, was seised of Lands in the right of his Church, and was attainted of Treason. It was holden, he should forfeit the profits of such Lands. But admit, That by this At∣tainder, the Land be forfeited; yet the party hath the Freehold until Office found. See Nicholls Case, Plow. Com. And also the Case of the Dutchy, in Plow. Com. acc. And here, the Pardon hath dispensed with the forfeiture. A Tenant of the King aliens in Mortmain before Office found, the King pardons it, it is good. The Lord Poynings conveyed all his Lands to Sir Adrian Poyn∣ings who was an Alien, and after made a Denizen, and the King pardoned and released to him all his right in the said Lands with∣out any words of grant; and adjudged, the same did bind the King: And he said, he had a good president, 14 H. 7. Where a General Pardon before seisure into the hands of the King, was allowed good; contrary, after a seisure without words of Grant. See Br. 29 H. 8. Br. Charter of Pardon, 52. If a Man be attainted of Fe∣lony, and the King pardons him all Felonies & executiones eorun∣dem, and Outlawries, &c. and releases all forfeitures of Lands and Tenements, and of Goods and Chattels, the same will not serve but for life of Lands, if no Office be found, but it will not serve for the goods without words of restitution and grant; for the King is entituled to them by the Outlawry without office: But the King is not entituled to Land, until Office be found. See Ibid. 33 H. 8. 71. The Heir intrudes, and before Office found, the King pardons, now the Heir is discharged as well of the Issues and profits, as of the Intrusion it self. But a Pardon given after the Office found, is available for the Offence, but not for the Issues and profits. And he cited the Case of Cole in Plowden, where a Pardon was granted, mean between the stroak and the death. See 35 H. 6. 1. 16 E. 4. 1. 8 Eliz. Dyer, 249. Brereton's Case. 11 Eliz. Dyer, 284, 285.

Egerton, Sollicitor, contrary, This Traverse is not good, for he who traverseth, hath not made title to himself as he ought, upon which the Queen may take Issue; for it is in the Election of the Queen to maintain her own title, or to traverse the title of the party. At the Common Law, no Traverse lay but where Livery might be sued; but that is helped by the Statute of 34 E. 3. but where the King is entituled by double matter of Record (as in our Case he is) no Traverse was allowed until 2 E. 6. Cap. 8. And in such Case, two things are requisite, 1. That the Office be un∣truly found. 2. That the party who is to be admitted to his Traverse, have just title or Interest of Estate of Freehold, &c. But in our Case, the Office is confessed by the Traverse to be true, al∣though that the conveyance be not truly found. And also Harris, at the time of the Office found, had not just title, but his Interest came to him, long time after the Office found. Also the traverse is not good, for he traverseth the matter of the Conveyance, which is not traversable; For if the Queen hath title, non refert, quo

modo, or by what Conveyance she hath it. As to the matter in Law, Tenant in tail in remainder is Attainted of Felony, If the King during the life of the Tenant in tail, shall have the Free∣hold. And he conceived, she should; For it shall not be in abey∣ance, and it cannot be in any other; for when he is attainted, he is dead as unto the King: The chief Lord cannot have it; For the Tenant for life is alive; and also he in the remainder in Fee; &c. The Donor shall not have it, for the Tenant is not naturally dead, but civilly; and the Land cannot revert before the Tenant in tail be naturally dead without Issue. But if there were any other in whom the Freehold could vest, then the King should not have the Freehold, but only the profits. So if the Tenant be at∣tainted, the Lord shall have the Land presently, 3 E. 3. 4 E. 3. The Husband seised in the right of his Wife, is attainted of Felony, the King shall have but the profits, because that the Freehold rests in the Wife; and if the Lord entreth, the Wife shall have an Assise. And Tenant in tail may forfeit for his life, as he may grant during his life. See Old N.B. 99. If Tenant in tail for Life, Dower, or by the Curtesie, be attaint of Felony, the King shall have the Land during their lives; and after their decease, he in the Rever∣sion shall sue to the King by Petition, and shall have the Lands out of the Kings hands: And there it is further said, That the Lord by Escheat cannot have it; for the party attainted was not his very Tenant, but he in the Reversion; for the term yet en∣dures: But now is to see, If the Freehold be in the King without Office; And I conceive that it is, Where the King is entituled to an Action, there the King ought to have an Office, and a Scire facias upon it: As where the King is entituled to a Cessavit, Action of Waste, &c. 14 H. 7. 12. Where entry in the Case of a Common person is necessary, there behoves to be an Office for the King. As where the Kings Villain purchaseth Lands, or an Alien born, &c. so is it, for a Condition broken, Mortmain, &c. In some Cases an Office is only necessary to instruct the King how he shall charge the Officer for the profits, which may be supplyed as well by Sur∣vey as by Office: As if the King be to take by descent, or as the Case is here. And it is true, That a person attainted of Felony, may during his Attainder purchase Lands, and yet he cannot keep it against the King. And it is clear, That by the Common Law in such Cases, the Land was in the King, but not to grant. For the Statute of 18 H. 6. was an Impediment to that; But now that defect is supplyed by the Statute of 33 H. 8. So as now the King may grant without Office. See 26 Eliz. Cook 3 Part, Dow∣ty's Case. And in our Case, Office is not necessary to entitle the King, but to explain his Title. See 9 H 7. 2. The Lands of a Man attainted of High Treason, are in the King without Office; so where the Kings Tenant dieth without Heir; or Tenant in tail of the gift of the King dieth without Issue. See Br. Office before the Escheator, 34. See 13 H. 4. 278. A Man Attainted of Trea∣son,

the King before Office, grants his Lands and Goods; Things which lie in Grant, as Advowsons, Rents, &c. such things upon Attainder are in the King without Office. As to the General Pardon of 23 Eliz. He conceived, That the same did not extend to this Case, and that this Interest of the Queen by this Attain∣der did not pass by the Pardon out of the Queen; So if the Queen had but a Right and title only.

Popham, Attorny General, By this Attainder, the Estate of him in the Remainder in tail accrued to the Queen for the life of him in the Remainder: For by our Law, Felony is punished by the death of the Offendor, and the loss of his Goods and Lands for the example of others, therefore nothing is left in him. Tenant for life is attainted of Felony, The King pardons to him his life, yet he shall have his Lands during his life; for he himself cannot dis∣pose of them for his life: And so it is of Tenant in tail, &c. for he may forfeit all that which he hath, and that is an Estate for his life which is the Freehold. If Lands be given to one and his Heirs for the life of another, and the Donee be attainted of Felony, the King shall have the Land during the life of Cestuy que vie, for the Heir cannot have it, because the blood is corrupt, and there is not any Occupancy in the Case: For 17 E. 3. the Iustices would not accept a Fine of Lands for the life of another, because an Occupant might be in the Case; But for a Fine of Lands to one and his He is for the life of another, they accepted a Fine, for there is no mischief of Occupancy. Land is given to A. for life, the remain∣der to B. for life, the remainder to the right Heirs of A. who is at∣tainted of Felony: A. dieth; now the King hath a Fee executed: And here in our Case, If this Tenant for life had been dead, no Praecipe would lie against him in the remainder being in possession, but the party who had right was to sue to the King by Petition. 4 E. 3. If one seised in the right of his Wife of Lands for life, be at∣tainted, the King shall have exitus & proficua: But I conceive that Case is not Law: For see F.N.B. 254. D. The Husband seised in the right of his Wife in Fee, is Outlawed of Felony; the King seiseth, the Husband dieth; Now shall issue forth a Diem Clausit extremum; the words of which Writ are in such case, Quia A. cujus terra & Tenement. quae ipse tenuit de jure & haereditate N. uxoris suae, adhuc superstites occasione cujusdam utlagariae in ipsum pro quadam felonia inde indictatus fuit, &c. in manu Domini H. Patris nostri extiterunt, &c. therefore, the King hath not exitus tantum, but also the Land it self. See to the same purpose, the Re∣gister, 292. b. And see also now in the Book of Pleas of the Crown, 186, 187. which affirmeth, That Tenant in tail being attainted of Felony, shall forfeit the Land during his life. And he concei∣ved, That this Estate of Tho. Venables was in the King without Office; not to grant, for he is restrained by the Statute of 18 H. 8. but it is in him so before Office, that he who hath right ought to sue to the King by Petition, if he will have the same; Yet he concei∣ved,

That before the said Statute of 18 H. 6. the King might grant it before Office; as it appeareth by Thirning, 13 H. 4. 278. which was before the Statute. So if the Kings Tenant makes a Lease for years, the remainder over to another in Fee, who dy∣eth without Heir, the said remainder is in the King without Of∣fice, because a common person in such case cannot enter, but a Claim is sufficient; and therefore it shall be in the King without Office. As to the Pardon, He conceived, That it did not extend to this Estate; For the same is a Freehold, therefore not within the Pardon: As if the Kings Tenant be attainted of Felony, and the King pardons him all Offences, and all which he may pardon; these words will not go, or extend to Freehold, but only to per∣sonal matters, and such punishments and pains which do concern Chattels. But it may be Objected, That in this Pardon, title of Quare Impedit, and Re-entries for Conditions are excepted; and therefore if they had not been excepted, they had been released by the Pardon; And therefore this Pardon doth extend to Inheritan∣ces and Freeholds. As to that, I say, That such Exceptions were not in use in the time of King Ed. 4. and such Inheritances and Freeholds were not taken to be within such Pardons; And such Exceptions began 5 Eliz. And he said, he had been of Coun∣sel in such Cases, where it had been taken, That such Pardons did not extend to Freeholds. As, an Abbot was disseised, and during the Disseisin, the Abby was dissolved; the King made such a Pardon, the same did not transfer the Kings right. And in this Case, there are divers Exceptions of Goods and Chattels in many cases, and therefore it cannot be intended that this Pardon doth extend to Freeholds. And see the said Act of Pardon; There, the Queen gave and granted all Goods, Chattels, Debts, Fines, Issues, Profits, Amercements, Forfeitures, and Sums of Mony; which word (Forfeiture) shall be intended personal forfeiture, and not otherwise, for it is coupled with things of such nature. And as to the Traverse, he conceived, That it did not lie in this Case; For the Office is not untrue in substance, although it be void in Cir∣cumstances: And also the King here is entituled by double mat∣ter of Record; i. e. the Attainder and the Office. And he said, That the Statutes of 34 & 36 E. 3. which gave Traverse, are to be meant of Offices found virtute Officii, and not virtute Bre∣vis; for then Escheators were very troublesome. And 2 E. 6. doth not give traverse, but where the Office is untruly found. As if the Kings Tenant be disseised, and the Disseisor be Attainted; The Queen seiseth the Land; Now the Disseisee hath no remedy by traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit, for that the Office is true: But if I be the Kings Tenant, and seised of Lands accordingly; and it is found that J.S. was seised of my Land, and attainted, &c. whereas in truth, he had not any thing in my Land, there Traverse lieth; For the Office is false; And so our Case for the Traverse, is at the Common Law. And it is true, that Venables was seised, &c.

Cook, to the contrary; And he conceived, That by the Attain∣der, the Queen had gained but a Chattel; And that notwithstand∣ing this Forfeiture, If Venables had been in possession, a Praecipe should be brought against him. And whereas it hath been said by Mr. Attorny, That the Writs set down in the Register, are the best Expositors of our Law; the same is not so: For the Register saith, That Waste lieth notwithstanding a mean Remainder, which is not now Law, but it hath been clearly ruled to the contra∣ry. See acc. 50 E. 3. The Register therefore, and the Writs, are subject to the Iudgments of our Law. And the Writ of Diem clausit extremum, is not to the contrary: For I confess, that in such case,* 1.2 the Land shall be seised into the Kings hands, but the King shall have but a Chattel in it. It hath been argued, He may grant, therefore he may forfeit. Nego Consequentiam; For a Man, seised in the right of his Wife, may grant, but not forfeit. Gardian in Socage may grant, but not forfeit; The Husband may grant a Term for years which he hath in the right of his Wife, but he can∣not forfeit it. A Woman enheritrix taketh Husband, and after∣wards is attainted of Felony, the King pardons him, they have Issue; the Woman dieth, the Husband shall be Tenant by the Curtesie, which proveth, that the King hath no Freehold by this Attainder. Before the Statute of West. 2. Tenant in tail post prolem suscitatam might forfeit the Land, but now the Statute hath so incorporated the Estate tail to the Tenant in tail, that it cannot be devested: yea, a Fine levied ipso jure est nullus, al∣though as to the possession it be a discontinuance: And that is the reason, wherefore Tenant in tail shall not be seised to another's use. See Stamford, 190. b. The Husband seised in the right of his Wife, is attainted of Felony, the King shall have the Issues of the Land of the Wife during the life of the Husband, &c. So if Tenant in tail be Attainted of Felony, that is but a Chattel in the Lands of the Wife, and also in the Lands of the Tenant in tail; and if the possessions of a Bishop be seised into the Kings hands for a Contempt, In such case the King hath possession, and not only the profits: The same Law of Lands of Tenant in tail or for life, being attainted of Felony. So seisure for alienation without Li∣cence, or of the possessions of Poor Aliens. See Br. Reseisure, 10. So where the seisure is for Idiocy. And he conceived, That no∣thing is in the King without Office. And as to the Case of 13 H. 4. 6. I confess it; For all that time many, and amongst them Lawyers and Iustices, were attainted by Parliament; And so was Sir John Salisbury, whose Case it was, and their Lands by Act of Parliament given expresly to the King; and therefore I grant, that their Lands were in the King without Office. Tenant in Fee of a Common Lord is attainted of Felony, his Lands remain in him during his life, till the entry of the Lord; and where the King is Lord, until Office be found: but in the case of a Common per∣son, after the death of the person attainted, it is in the Lord before

Entry; and in the Case of the King, before Office, for the Mis∣chief of Abeyance. And see the Lord Lovell's Case, 18 Eliz. Plow. Com. 485, 486. Where it is holden, That upon Attainder of Treason by Act of Parliament, the Lands were not in the King without Office in the life of the person attainted, upon the words of the Act, shall forfeit. See Stamford, 54, 55. acc. 3. He con∣ceived, That this Interest which came to the King by this Attain∣der, was but a Chattel, and then it is released by the Pardon; And so he conceived, If it be a Freehold. For the words of the Ge∣neral Pardon are large and liberal; Pardon and Release all manner of Treasons, &c. And all other things, causes, &c. and here for∣feitures are pardoned; And also this word (Things) is a transcen∣dent, &c. And although it be a general word, yet by the direction of the General Pardon it ought to be beneficially expounded and ex∣tended, as if all things had been especially set down. Also the words are, Pardon them and their Heirs; therefore the same ex∣tends to Inheritances for any Offence not excepted, for there is the word Heirs; And the third branch doth concern only Chattels, and that is by the word Grant; where the former is, by the words, Release and Acquit. See Br. Charter of Pardon, 71. 33 H. 8. Te∣nant of the King dieth seised, the Heir intrudes, Office is found; in that case by Pardons of all Intrusions, the Offence is pardon∣ed, but not the Issues and Profits. But by the Pardon aforesaid, all is pardoned. And here in our Case, the Office is void; For the Statute makes all Precepts, Conditions, void, &c. being award∣ed upon such Forfeitures. See also in the second Branch, Vexed and inquieted in Body, Good, Lands, &c. And see also amongst the Exceptions, That persons standing endicted of wilful Murder, and forfeiture of Goods, Lands, Tenements, grown by any Of∣fence committed by such person; By which he conceived, That if that Exception had not been, the Land of such a person, if he had been attainted upon such Indictment, should be forfeited. As to the Traverse, he conceived, That in as much as the Office is true, our plea is a Monstrans de Droit, although it concludes with a Traverse. We vary from the Office in number of persons, and in the day of the Feoffment; and every Circumstance in the Kings Case is to be traversed, and our plea in substance doth confess and avoid the Office.

Although the King here be entituled by double matter of Record; i. e. the Attainder and the Office; yet one of the said Records is discharged by another Record; i. e. the Pardon, and then there is but one Record remaining; scil. the Office, and therefore our Traverse doth lie. And he conceived, That at the Common Law there was a Traverse; as where it was found by Office, That the Lessee of the King had done Waste, or cessed for two years; and there it is said, That the Lessee and Tenant in an Action brought against them, may traverse the Office, Therefore traverse was at the Common Law, where the King was entituled

by single matter of Record. So upon an Office finding an Aliena∣tion without Licence, Traverse was by the Common Law. See Traverse in such Case, in the Case of William de Herlington, 43 Ass. 28. See Br. Traverse, 54. Petition is by the Common Law, and Traverse by the Statute; Frowick in his Reading. See Stamf. Prerogat. 60. That Traverse in the Case of Goods was at the Common Law, but Traverse for Lands found by Of∣fice, by 34 E. 3. Cap. 14. therefore the remedy was by Petition. See now, Cook 4. Part, the Sadler's Case, 55, 56. Traverse was at the Common Law concerning Freehold and Inheritance, but that was in special Cases, when by the Office the Land is not in the Kings hands, nor the King by that is in possession, but only by the Office, and entituled to the Action, and cannot make seisure without suit there: in a Scire facias brought by the King in the nature of such an Action to which he is entituled, the party may appear unto the Scire facias, and traverse the Office by the Common-Law.

Notes

• * 1.1

  1 Inst. 351. a. Hughs Que∣ries 13.
• * 1.2

  Hob. Rep. 342.