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.

LXI. The Lord Windsors Case. Mich. 15 Eliz. In the Kings Bench.

UPon an Evidence given to a Iury in the Kings Bench, in an Ejectione Firmae, the Case appeared to be thus; That Sir Roger Lewknor, Knight, being seised in Fee of the Mannor of South Myms, made an Indenture, Anno 11. H. 8. by which Inden∣ture, he Leased the said Mannor to 20 persons, to the use of An∣drew Windsor, afterwards Lord Windsor, and Henry his Son, and the Survivor of them, as long as any of the said persons named in the said Indenture should live: And further Covenanted by the same Indenture, To stand seised of the said Mannor, To the use of the said Andrew and Henry, and the Survivor of them, during the lives of any of the said Feoffees named in the same Indenture; which Deed was made without Livery and Seisin; and reserved upon it an yearly Rent: and afterwards the Son died. And in 22 H. 8. A Fine was levied by a stranger upon a Release to Andrew Lord Windsor; And afterwards, 34 of Henry 8 Andrew Lord Windsor made a Lease to one for years, and died; and made William and Edmond his Sons his Executors: And afterwards William his eldest Son being Lord Windsor, 2 & 3 Phil. & Mary, made a Lease of the same Land unto another, to begin after the first Lease ended: Which William died, and the Lord Windsor that now is, accepted the Rent, and of late time agreed with one Vaughan, who had mar∣ried the Heir of Sir Roger Lewknor, for the Reversion in Fee; and afterwards the Lease made by Andrew Lord Windsor, 34 H. 8. ended in the 4th year of the Reign of the Queen that now is; Whereupon, the second Lessee, that is to say, the Lessee of Wil∣liam Lord Windsor, entred; and being ousted, he brought the Ejectione firmae. And then, and yet one of the 20 Feoffees of Sir Roger Lewknor is alive; so as the Estate of Cestuy que Vie, is

not as yet determined. And now the Question upon the first part of the Evidence is, If this later Lease made by William Lord Windsor, be a good Lease or not? And who shall be said Occupant? For when the Lord Andrew died, then the Lessee (as Catline said) shall not be said in otherwise than according to his Lease, when his occupation by Lease was lawful before: And he who shall be said Occupant, shall have a Freehold; and if he should be Occupant, he should be in by a new title. Then we are to see, If the Exe∣cutors of the Lord which have the Rent, and to whom the same is paid by the Lessee, shall be said Occupant? And he conceived, That they should not, although that they enter, unless they claim the Freehold at the time of their entry; for if they enter general∣ly, it shall be intended according to the Will, as Executors; and if he had granted his Estate to another, there after his death, the Grantee shall be said to be in by reason of his Grant, and not as Occupant; And so if he would devise his Estate, the Devisee shall be in by reason of the Devise, and not as Occupant; Which Case of Devise, Southcote denyed, That he should not be in by reason of the Devise, when his Estate determines with his death: But if the Devisee entreth by force of the Devise: he shall be in as an Occupant. And also Southcote denyed that which had been said, That the Lessee for years who holdeth the Lands after the death of Andrew Lord Windsor, should not be an Occupant: For, as he said, the Lessee being in possession after the death of the Lord Andrew, should be said Occupant, and no other; for the Executors of the Lord could not be Occupant by the having of the Rent, because they had not the possession of the Land; for none shall be Occupant, but he who is in possession. Whiddon said, That if the first Lease made by Andrew Lord Windsor, was now in esse, and that an Ejectione Firmae was brought upon that, that the Lessee ought to aver, That some of the Feoffees for whose lives, &c. were then living. Southcote, If a Praecipe quod reddat shall be brought, against whom shall it be brought, against him in the Reversion, or against him in possession? And if it shall be brought against the Tenant in possession, then he ought to have the Freehold; for it cannot be brought, but against one who hath a Freehold at the least: And then if the Lord William Windsor had nothing in the Land, then how could he make this Lease to the Plaintiff that now is, when the first Lessee continueth Occupant after the death of the Lord Andrew, during the life of Cestuy que Vye? And as to the Fine, the Question did further arise, If the Lord Andrew Windsor should have a Feesimple by that Fine? For being levied, (as Catline said) It cannot be to the first Vses, because a Fine upon a Release, cannot be intended to the use of any other but to him to whom it is levied, unless an use be expressed in the Fine, or by another Deed: And upon a Fine levied upon a Release made unto Tenant life by a stranger, the same is not a forfeiture of his Estate; But if Tenant for life taketh a Fine

Sur Conusans de droit come ceo, &c. the same is a forfeiture. And although a Fine levied by those who have not any thing in the Lands, be void, Yet here it is not so; and it ought to be pleaded specially, and shewed, that he had not anything in the Land at the time the Fine was levied, as Anderson said. And Catline said, That this Fine was not without good advice, for the Lord Brook and others who were learned in the Law, were of Counsel with the Lord Windsor in the levying of this Fine, so as the intent was to settle the Feesimple in himself by the Fine, and not that the first Vses should stand after that: And thereupon he put the Case of Putnam and Duncomb, which hath much Resemblance to this Case, which he argued when he was Serjeant, and held the same Opinion as he holdeth now; And therefore he said, That although the Purchase was but of late time of Vaughan and his Wife, yet the Fee was in the Lord Windsor before, and this manner of purchase was to no other end, but to discharge the Lands of Incumbrances, as appeareth by the small sum which was paid, the Land being of a great yearly value. And, as Vaughan confes∣sed, he took this sum of Mony, because that his Council informed him, that the Feesimple was in the Lord Windsor before, and that otherwise he would not have sold it at such a price. And he said, That before that agreement, the Lord Windsor told him, that he had the Feesimple in himself. Whereupon Vaughan ask∣ed him, Wherefore he paid the Rent? To whom the Lord Windsor answered, That he paid the same during the lives of the Feoffees, but after their deaths, he paid nothing; but not∣withstanding that payment, that the Feesimple remained in him, and that his Counsel advised him to pay the Rent to the Heirs of Lewknor, who was the Wife of the said Vaughan. And Cat∣line said, That if a Fine be levied upon a Release, in a Scire facias against the Conusor, he shall not plead, that the Conusor had not a∣ny thing in the Land at time of the Fine levied. And he said further, That if a Disseisor be, and the Disseisee levieth a Fine upon a Re∣lease, that thereby his Right is gone.

And Note; That as to the principal Case, Southcote was of Opinion, That the Fee was not gained by the Fine levied by a stranger to him who had the Vse before the Statute of 27 H. 8. and that if no Feesimple was in the Lord Windsor, at the time of the Lease made by him, that the Lease could not be good, nor the Action maintainable. And because the Court was divided in Opi∣nions in both Points, Catline commanded the Iury to find a Spe∣cial Verdict.