Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

Easter Term, 35 Eliz. Crocker and York, versus Dormer.

1. UPon a Recovery had by John Crocker and George York, against Geffrey Dormer, in a Writ of Entry in the Post, of the Mannor of Farningho, with the Appurtenances, and of 6 Messuages, 6 Cottages, &c. in Farningho, and of a yearly Rent or pension of 4 Marks is∣suing out of the Church or Rectory of Farningho, and of the Advowson of the Church of Farningho, in the County of Northampton, William Dormer Son and Heir of the said Geffrey, brought a Writ of Error, and assigned di∣verse Errors.

1. Because that ••uch a form of Writ doth not lye of an Advowson, but only a Right of Advowson, Darrein presentment and Quare impedit.

2. Because he demands the Advowson of the Rectory, and also a Rent issu∣ing out of the same Rectory.

3. Because the Demand for the Rent is in the Disjunctive, to wit, a Rent or a Pension.

4. Because it is a pension, wheras a Pension is not sutable in our Law, but in the Spirituall Court; To which Gawdy said, that there is a great di∣versity between a common Recovery, which is an assurance between parties and a Recovery which is upon Title, for a common Recovery is to an Vse, to wit, to the use of him against whom it is had, if no other use can be aver∣red, and therfore as to the Vse, it is to be guided according to the intent of the parties, and by a common Recovery had against Tenant for life, he in the Reversion if he be not party or privy to it, may enter for a forfeiture, as it was adjudged very lately in the Exchequer, by the advice of all the Iustices in the case of a Recovery had against Sir William Petham Knight, and in all these things it is otherwise in case of a Recovery upon Title, and therfore in as much as this common Recovery is but a common Assurance between parties, and is alwaies by assent between parties, to the end that they may make assurance from one to another, there shall be and alwaies hath been a contrary exposition to a Recovery which is by pretence of Title, and it hath been common to put in such Recoveries, Advowsons, Commons, Warrens, and the like, and yet alwaies allowed: And if this shall be now drawn in question, infinite Assurances shall by this be indangered, which the Law will not suffer, and therfore the demand of an Advowson and Pension in the Writ of Entry makes not the Writ vitious, as it shall do in another Writ of Entry founded upon a Title and not upon an Assurance. And as to that, that the Rent and the Advowson also is demanded, this is good, be∣cause the Advowson is another thing then the Rectory it self, out of which the Rent is demanded to be issuing: And for the disjunctive demand of the Rent or Pension, it makes no matter in this case, because it is a common Reco∣very in which such a precise form is not necessary to be used as in other Writs, and also a Pension issuing out of a Rectory is the same with the rent: To which Clench and Fennor agreed in all; but Popham moved that the greatest difficulty in this case is the demand made to the disjunctive, to wit, of the annuall Rent or Pension, for if a Pension issuing out of a Rectory shall be said to be a thing meerly spirituall, and not to be demanded by our Law, or meerly of another nature then the Rent it self, with which it is conjoyned by the word (or) then it is erroneous; for albeit a common Recove∣ry, be now a common assurance of Land past by the assent of parties, and therfore hath another conservation, then that which passeth by pretence of Ti∣tle, yet we are not to omit grosse absurdities in such common Recoveries, as to demand an acre of Land or Wood in the Mannor of Sale, or Dale, or black acre, or white acre, these are not good in common Recoveries, because there is no certainty in the demand which of them the party is to recover, which kind of absurdity is not to be admitted in these Recoveries; for this is but a meer ignorance in the Law and the Ministers of it. And to this Gaw∣dy and the other Justices agreed, but they sayd, that a Pension issuing and a Rent shall be taken for all one; for if a man grant a Pension of 20 s. a year, issuing out of the Mannor of D. or of the Rectory of S these are Rents issuing out of them: and if the demand had been of an annuall Rent, or Annuity of 20 s. a year issuing out of the Rectory, this had been good. To which Pop∣ham agreed, and yet sayd, if it had been an annuall Rent of 20 s. &c. or of an Annuity of 20 s. it had nof been good, because that the word (issuing) is not referred to the Annuity, but to the Rent only, and therfore are meerly ge∣nerall, and not as the same, but if the demand were of an annuity, rent, or payment of 20 s. issuing out of a Rectory, it is good, for this is but one and the same. Then it was alledged that notwithstanding that which appears to the Court, it cannot be taken that this was a common Recovery, for upon the assignment of the Error, it is not averred that it was a common Reco∣very,

to which Popham said, that common Recoveries are such common Assurances to all persons that are well known to all, and especially to us that they need not be averred, for they are known by certain Marks, to wit, by the voluntary entry into the Warranty, the common Voucher and the like: And at last they all agreed that the Iudgment shall be affirmed.

2. In Wast, by Thomas Haydock against Richard Warnford, the case was this; One Michael Dennis was seised in his Demesne as of Fee, of the third part of a Messuage, and of certain Lands in Bury Blunsden in the County of Wilts, and being so seised the last of April, 9 ••liz. demised them to Susan Warnford for 41. years, from the Feast of S. Michael the Arch-an∣gel then next ensuing, who assigned this over to Richard Warnford, after which the said Michael Dennis by bargain and sale enrolled, according to the Statute conveyed the Reversion to John Simborn Esquire, and his Heirs, the said Iohn being then seised of another third part therof in his Demesne as of Fee, after which, to wit, the first day of Iune, 17 Eliz. the said Iohn Simborn demised the said third part, which was his before his said purchase to the said Richard Warnford for 21 years then next ensuing, and afterwards the said Iohn Simborn died seised of the Reversion of the said two parts, and this descended to Barnaby Simborn his Son and next Heir, who the 20 of Iune, 28 Eliz. by bargain and sale enrolled, according to the Statute con∣veyed, be Reversion of the said two parts to the said Thomas Haydock and his Heirs, after which the said Richard Warnford committed Wast in the said house, wherupon the said Thomas Haydock brought an action of Wast against him, according to the said two severall Leases, and assigned the Wast in suffering the Hall of the price of 20 l. a Kitchin of the price of 20 l. and so of other things to be uncovered, wherby the great Timber of them became rotten, and so became ruinous, to the disinherison of the Plaintiff, and upon a Nihil dicit, a Writ was awarded to enquire of Damages, in which it was comprised that the Sheriff shall go to the place wasted, and there enquire of the said Damages, who returned an inquisition taken therof at Bury Bluns∣den, without making mention that he went to the place wasted, and that it was taken there, wherupon Iudgment was given in the common Bench, that the said Plaintiff shall recover his Seisin against the Defendant of the said places wasted, with their Appurtenances Per visum Iurator. Inquisitionis predict. & damna sua occasione vast•• in eisdem locis in triplo secun••ū formam statuti, &c. And upon this a Writ of Error was brought in the Kings Bench, and there by all the Iustices it was agreed that it was but Surplusage to comprehend in the Writ of enquiry of Damages, that the Sheriff shall go to the place wasted, and there enquire of the Damages, in as much as by the not denying therof, the Wast is acknowledged, and therfore he need not go to the place wasted: But where a Writ is awarded to enquire of the Wast upon default made at the grand Distresse, there by the Statute of West. 2. cap. 24. the Sheriff ought to go in person to the place Wasted, and enquire of the Wast done, and therfore in that case it is needfull to have the clause in it, that the Sheriff shall go to the place wasted, and there enquire of it: for by the view the Wast may be the better known to them, but where the Wast is acknowledged, as here, that clause need not, and albeit it be comprehended in the Writ, yet the Sheriff is not therby bound to go to the place wasted, and to enquire there, but he may do it at any place within his Bayliwick where he will, and therfore it is no error in this point: And they agreed also that the Wast is well assigned in the entire Hall, &c. al∣though the Action were brought but upon the Demises of two third parts of it, and it cannot be done in these parts, but that it is done in the whole, and also it cannot be done in the whole, but that it is also done in the three parts, but yet the doing therof is not to the disinheritance of the Plaintiff, but in these two third parts; and therfore no error in this manner of assigning of

the Wast. And they also agreed that the Action is well brought upon these severall Demises, because neither the interest of the Term, nor of the Inhe∣ritance was severed nor divided to severall persons at the time of the doing of the Wast, but the two Terms in the one, to wit, in Warnford, and the Inheritance of these immediatly in the other, to wit, in Haydock; And by Popham also, the thing in which the Wast is assigned, is one and the same thing and not diverse, to wit, a Messuage, and therfore by Brudnell and Pollard, 14 H. 8. 10. if severall Demises are made of one and the same Mes∣suage by one and the same person, as one part at one time, and another part at another, an Action of Wast may well lye: Albeit Fitzherbert and Brook seem therin to be of a contrary opinion, and that severall Actions of Wast ought to be in that case.

And the exception was taken, because the Iudgment was entred that he shall recover the place wasted, Per visum Jurator. praedict. wheras they had not the view of it in this case, for this should be where it is given upon a Writ awarded to enquire of the Wast upon default made at the grand Di∣stresse; whereas here the Wast is not denied but acknowledged.

But as to this, severall Presidents were shewn, the one upon Demurrer for part, Hill. 1. Mariae. Rot. 301. and another Tr. 31. H. 8. Rot. 142. in an Information, in both which Cases the Iudgment was entred as here, to wit, Per visum Jur. praedict. and yet in these, the Wast was as acknowledged: Whereupon it was ordered that the Iudgment should be affirmed.

3. In an Ejectione firmae brought by Sir Moyle Finch Knight, Plain∣tiff against John Risley Defendant, for a Messuage and a Mill in Raveston in the County of Buckinghamshire, the case for the matter in Law appear∣ed shortly to be this.

The King and Queen Philip and Mary by their Letters Patents, dated the eight of July, 3. & 4. of their Raign, made a Lease of the Reversion of the Mannor of Raveston (of which this was parcell) to Sir Robert Throg∣morton for seventy years, from such a Feast, after the death of the Coun∣tesse of Ormond, who then had it for her life, rendring yearly 73 l. 13 s. payable at the Feasts of Saint Michael the Arch-angel, and the Annuncia∣tion of our Lady, at the receit of the Exchequer by equall portions, with a Proviso that the Lease shall cease, if the said Rent or any part therof were arrear, and not paid at the said Feast, or a certain time after, the Reversion descend to the now Queen, and the said Countesse died 7 Eliz. part of the Rent then payable, was not paid at the day, nor within the time limited by the Proviso, afterwards Queen Elizabeth by her Letters Patents, dated 30. May, 30 Eliz. granted the said Mannor to the said Sir Moyl, and one Awdeley and their Heirs in Fee, with a clause in it, that the Letters Patents shall be good, notwithstanding there be not any recitall of any Lea∣ses or Grants at any time before that made by her, or any of her Progeni∣tors; after which an Office is found for the Queen, that the Rent was ar∣rear and not paid as before, after which the said Sir Moyl and Awdeley assu∣red the said Mannors by bargain and sale to Sir Thomas Hennage who de∣mised the said Messuage and Mill to the said Sir Moyl, upon whom the said Risley entred in right of the said Lease made by the said King Phillip and Queen Mary, under Thomas Throgmorton, who then pretended to have the term of the said Lease from Sir Robert his Father. The case was well ar∣gued at the Bar, and now at the Bench, where Fennor moved first, Whether it were a Condition. 2. Whether an Office were requisite. 3. Whether this Office found, comes soon enough for time: For the first he conceived that it was a conditional Limitation, for a Limitation is that which limits an Estate certain o•• doubtfull, as Quandiu in manibus nostris fore contige∣rit, quamdiu amicus sit, or dummodo solverit: And there (dummodo)

was a Condition as appeareth, 5 Ass plit. 9. & 2. Ass. a Grant made to J. S. and his Heirs tam di••, as the Grantor and his Heir shall enjoy such a Man∣nor, this is a Limitation, and a Limitation alwaies determines the E∣state, but a Condition albeit it be broken during the Estate, yet it doth not determine the Estate, and so it is of a conditional Limitation, and therfore tis not in the King untill an Office be therof found, for the King submits him∣self to the Law, for Bracton saith, Quod non debet judicare sed secundum legem, and his Prerogative is so excellent, that he cannot take a part with any thing, but by matter of Record, neither can he draw the Right or Posses∣sion of any one in question upon a bare surmise, but by Office or other matter of Record, for a Record alwaies carries credit with it. And there is no di∣versity where two matters are limited in Deed, and where one is limited in a Deed, and the other by the Law: And the contrary objections are easily answered, for when the Tenant in tail of the King dies without Issue, it is in the King without Office, because the Law does not help them which contemn it. But in case of an Office which is forfeited, it is in the King to dispose without Office, because the King is not to have the Office it self but the disposition of it, and yet it is to be defeated by Scire facias in the Chan∣cery.

If a Mill be demised for life, upon condition that he shall not let it but to a Milner, and he breaks the Condition, in case of the King there must be an Office to avoid it, and there the Office entitles the King to the Condition and not to the Entry, for after the Office it is not in the King untill Entry: And here the Rent may be paid to the Kings Bayly in the Country, which is matter in fait, and therfore shall not be defeated without Office; And here the Office comes too late to give any advantage to the Patentee, for the King cannot grant a Title of Entry before Office, no more then the Assignes of a common person can take advantage of a Condition broken in the time of the Grantor, of which the Grantor did not take advantage in his time; And if the Queen makes a Lease durante beneplacito, the Patentee shall not a∣void it, as it appears in the Lord Burgleighs case, and therfore the Office her•• shall not help the Patentee, but the Queen for the mean profits: for although nullum tempus occurrit Regi, yet the Patentee shall not take advantage of this Prerogative.

Clench agreed cleerly, that it was a Limitation, but yet that it is at the Queens liberty to avoid or make it good, for perhaps the Rent is better then the value of the Land, and upon this reason a Lease from the King Probi•• hominibus de dale, or to a Monk rendring rent, is good, which otherwise had been meerly void: And by the Office found, the Election of the Queen ap∣peareth, without which the Lease is to continue, and therfore the Patentee shall not defeat that which happened in the Queens time before.

Popham, to say that the Office helps the Queen for the mean Profits, and that now the Patentee shall not take advantage to avoid the Lease is too absurd; for the Queen cannot take advantage to have the mean Profits, but in respect of the avoidance of the Lease: And if the Lease were made void or determined against the Queen, it shall not remain good and of force against the Patentee, and also to say, that the Lease might have its continuance, af∣ter that it is determined by the Limitation comprehended in the Writing, by reason of a reservation, is also too absurd, for so it may be said, that if the Queen make a Lease for years, if J. S. shall live so long, rendring rent, that this Lease may have continuance after the death of J. S. which cleerly is not Law; And the Patentee here shall take the advantage to avoid the Lease hapned before his Patent made, because that no Office need to be found of the not payment before it passed from the Queen to make it voyd, and the reason is, because this Proviso (as it is penned) is a meer Limitation of the Estate, and not any manner of Condition; And therfore if the Queen

make a Lease for 100. years, if the Lessee shall so long lawfully pay the Rent reserved at the day of payment, if he fail of payment of the Rent reserved at the day limited, the Lease is ipso facto determined, and it need not be found by Office. And what diversity is there where the Limitation is conjoyned to the estate it self, and where it cometh in by a Proviso afterwards, all being in one and the same Deed, and therfore spoken at one and the same time, for the one and the other case manifesteth that the contract and agreement is, that the Lease shall not continue longer then the default of the payment of the Rent.

And in this case, suppose that the Queen had granted over the Land? shall not the Patentee have advantage to avoid the Lease, because that no Office was found before? It is cleer that he shall, or otherwise this is now become to be an absolute Lease for a hundred years, which is not Law, for it is meerly contrary to the Contract, and therfore absurd to be maintained: I agree with the generall rule that nothing shal passe to, or from the Queen but by matter of Record; but this makes nothing against me in this case, for here the same Record which passeth the Estate to the party, to wit, the Patent of the Lease contains the time how long it shall endure, longer then which it cannot continue: And therfore by 9 H. 7. If the King makes a Gift in tail, and the Donce dies without Issue, the Land is in the King without Office, so in every other case where the Estate is determined according to the limita∣tion, for he cannot be put out of possession wrongfully, and now hath right to hold it against him. And I say that no warrant or authority can be found throughout the whole Law where a Lease or Estate made by the King is de∣termined by an expresse limitation comprised in the Patent it self of the Grant, that there need not any Office or other thing to determine it, for that which is comprised in the same Patent may determine it, of it self.

And further, wheras the Proviso is, that the re-entry shall be for default of payment of the Rent, and the like, there the Term continues untill the re-entry be made, notwithstanding the Condition be broken, as appeareth by all the Iustices, 28 H. 8. because it is expresly limited that it shall be defea∣ted by the re-entry, & there before re-entry be made, the Action of Wast shall be, quod tenet: And by 12 H. 7. where a common person is put to his Entry, there the Queen is put to an Office, with which agrees Stamford in his Book of Prerogative: But in this case, if it were between common persons, the Lease shall be determined upon default of payment of the Rent, and before any re-entry, and therfore in the Queens case it shall be determined without Office. But if the case had been, that if the Rent had been arrear and not paid, that then upon re-entry made, it ought to cease, there an Office had been necessary to countervail the Entry in case of the Queen, or otherwise the Lease shall not cease, because the Queen cannot make an Entry but by such means, and therfore it ought to be by matter comprised in the Patent. It hath been said, that this shall be a conditionall Limitation, and that therfore an Office is necessary; but I say, that here is not any matter or quality of a Condition, but meerly of a Limitation, and tis rather a contingent Limita∣tion then any manner of Condition, and this is well proued by 11 H. 7. which is, that the Grantee of a Reversion shal take advantage of it at common Law, the which he cannot do if it savour any way of a Condition, and by 27 H. 8. a Proviso in a Deed ought alwaies to be expounded according to the purport, because that it is placed in a Deed, somtimes for a Condition, as where a Proviso is that the Lessee shall not alien; somtimes for an exception, as where a Proviso is, that the Lease shall not extend to such an acre, or such a thing, somtimes for a Limitation, as here and in the like cases. And in this case the release of the Rent shall make it, that the Lease shall never be de∣termined for the not payment of it, because tha•• ••••terwards there cannot be any such default of payment; and therfore in such a case the Limitation re∣maineth

absolute and discharged of the contingent, which otherwise had deter∣mined it: As if a man make a Lease for a 100. years, if the Lessee in the mean time do not cut such a Tree, a release of all Conditions will not serve, yet if the Lessor himself or any other but the Lessee cut it, the Lease is be∣come absolute for a 100. years: And so upon this point my conceit appeareth. But the most colourable thing which hath been alledged on the other side, was by my Brother Drew, which was, that in counting upon an Ejectione firmae, and pleading in such a Lease as here, it shall be as an absolute Lease for the years comprised in the Habendum, without making any mention of the Prouiso, upon which he enforced it that it shall be taken to be of more ef∣ficacy then if it stood meerly upon the Contingent; for he said, that upon a Lease made for years, if the Lessee shall so long live, and the like, in the count, and also in the pleading mention ought to be made of the life of the Lessee: I agree it to be true that the pleading shall be so, for in count coun∣ting, and in plea pleading, if the matter of the Contingent procede the Li∣mitation, or be anncred to the Limitation, there a man ought to speak to the Contingent, or otherwise it is not good, as by 14 H. 8. it shall be of a Con∣dition where it is precedent; But in case of a Condition it is quite other∣wise, for if •• man make a Lease to another for years, Si tamdiu vixerit, or Dummodo solverit, &c. or the like, which are annexed to the limitation of the Estate; in all these cases in counting and also in pleading, he ought to aver the life of the Lessee, or otherwise the contents of the thing according to the limitation: But where that which was the Limitation cometh by a Pro∣viso, after the Habendum which distinguisheth the sentence as here, there, because it it is a matter distinct and subsequent from the Habendum, and not annered to it, he need not to speak of it, but there it shall alwaies come in to be shewn of the other part, and this is the usuall and common case of diffe∣rence for pleading, but this makes no difference of the Estate; And ther∣fore if an Obligation be made with a Condition endorsed, the Plaintiff in debt upon it doth not speak of the Condition in his Count, but if the Condi∣tion be precedent, or stands comprised within the body of the Obligation, then he ought to speak of it in his Count, as appeareth by 28 H. 8. where a man was bound in twenty quarters of Malt, to be paid at such a day, and if he fail, that he shall pay forty quarters at such a day, if he demand the forty quarters in his count, he ought to shew the default of payment of the twenty quarters at the day limited for it, and yet the Condition that is out of, and that which is comprehended within the Obligation are but as one for the substance, but for the form it differs as to the pleading, which form ought to be observed.

Another reason is in this case, because that the payment of the Rent is li∣mited to •••• made at the receit of the Exchequer, in which case if it had been 〈…〉〈…〉 had been entred of Record, and not being so, the default ap∣peareth o•• Record, and where the default appeareth of Record, there needs no Office, for •••• shall be in vain to make that to appear upon Record by Office, which 〈◊〉〈◊〉 appeareth of it self by Record, and therfore in 4. and 5. 〈…〉〈…〉 & Mary it appeareth, where Sir John Savage was Sheriff of the 〈…〉〈…〉 Fee, and that he was indited of two severall voluntary 〈…〉〈…〉, and for not keeping of his Turn in loco consueto upon two 〈…〉〈…〉 removed into the Kings Bench in 8 H. 8. upon the motion of the 〈…〉〈…〉-generall the Office was seised into the Kings hand without Scire facias, or any Inquisition found therof, and as appeareth 3 Eliz. One B••ake who by Patent was the Kings Remembrancer in the Exchequer being made one of the B••rons of the same Exchequer, the other Office was ipso fa∣cto ••one and determined, & there need no inquisition to be made of it, nor Sci∣re facias to avoid it, because the taking of the Office of a Baron is of Record; And a man cannot be a Iudge and a Minister in one and the same Court, and therfore the first Office is determined by taking of the second, and there need

no Office to be found of it, the matter it self being apparant upon Record, and therfore as it appeareth it was adjudged in 13 H. 8. that a new Patent of the same Office of Remembrancer making recitall of the former Patent (which appeared as before upon Record to be void) with a clause Quod post mortem sive determinationem, &c. therof, the new Grant shall take effect, was void. And Englefields case was lately adjudged in the Exchequer (and at the Parliament 35 Eliz. allowed to be good Law by all the Iustices there being) where the Queen had a Condition given to her by forfeiture upon an Attain∣der of Treason to be performed by the payment of a summ of money, or the like: If the Queen makes a Warrant by Patent to one to perform the Condition, and to return his proceedings therupon into the Exchequer, who performs it accordingly, and therupon returns all that he hath done with his Warrant into the Exchequer, no Office need to be found of the performance of the Condition, because that by the return (which is warranted by the Patent) the Condition appeareth sufficiently upon Record to be performed, and therfore no Office need to be found, no more of the not-payment in this case. It hath been said by some, that it may be that the Patentee hath ten∣dred the Rent at the receit, and that they would not receive or record the re∣ceit of it, and that then it should be hard that he should loose his Lease, no de∣fault being in him: to which I say, suppose a man be bound to make his ap∣pearance in any of the Kings Courts, may he say, that he appeared there accor∣ding to the Obligation, & excuse himself by such bare averment therof, unlesse his appearance be entred of Record? It is cleer that he cannot, as appeareth by 18 E. 4. for appearance in a Court of Record, is not unlesse it be of Record, yet it may be said, that then the case may be had to the party: as if the Offi∣cer will not record his appearance, which is the same mischief as in this case, but this will not help him, for first the Law presumes that every Officer wil be indifferent betwixt party and party; and upon this opinion had of him he is admitted to his Office, wherupon the Law presumes that if the party would have appeared, that the Officer would have recorded it, and in as much as he did not do it, it shall be taken that he did not appear. But the strongest reason in the case is this, to wit, if default be not in the party to do that which he ought to do, but in the Officer to do that which belongeth to his Office, as to record that which he ought to record, there the Officer shall be chargable to the party in an Action upon the case, to answer him so much in Damages as he hath sustained by such default of the Officer, and the Law will put the party rather to such a recovery then to answer it by a bare mat∣ter of averment which ought to be of Record. And further such a voluntary default may be a forfeiture of his Office, and so a sufficient penalty in case of an Officer. And to say, that the Office of Receit is not an Office of Record, is too absurd, for it is a principall member and part of the Court of Exche∣quer, and as wel of Record, for the matters belonging to it, as the Offices of the Pipe and Remembrancers are for those things which belong to them; and the Records of Receit as well inrolled in Rolls of Parchment as any other Records of the Queen in this, or any other Court, & it is commonly used now to convey Reversions & Remainders to the Queen, with a Proviso to be void upon payment of a certain sum of mony to the Queen at the receit of the Ex∣chequer, & it is as usual upon payment made there to have it back again with∣out office found of this paym. and what is the reason of it? now, but because the paym. there is alwaies entred upon Record, & therfore no Office needs make this paym. to appear upon Record. And for the case of Sir Rob. Chester. 4 Eliz. there is great diversity between that & this case, for it is ordained by the Act that upon the default of paym. (which is not limited there to be made at the receit) the office shal be forfeited, & not that the estate in the office shall cease: And of a thing forfeited it is at the election of him who is to take advantage of the forfeiture, whether he will take it or not, and till the advantage taken therof the party still remains an Officer.

And therfore if the Queen make a Lease for years, and the Termer makes a Feoffment in Fee, the Term by this is extinct, as was agreed upon an E∣vidence in the Exchequer 28 El. in the case of Drayton Basset, and before that, in the same case in the Kings Bench, and yet no reversion is drawn therby out of the Queen. Suppose then that the Queen before any Office found therof, grant the Land over in Fee, shall not the Patentee take advantage therof by extinguishing the Term? It is cleer that he shall, and albeit a Termer holdeth over his Term, yet the Patentee of the Queen, and also the Bargainee of a common person after the Inrolement of the Bargain shall take advantage of this determination of the Term.

And for the not reciting of Throgmortons Lease in the Letters Patents made to Finch and Audeley, it is to no purpose to speak to it, because the E∣state was finished before the Grant; And further, because there was a Non obstante in the Patent, that it shall be effectuall, notwithstanding any not recitall of any Lease being of Record, or not being of Record, mis-recitall, &c. which was by all at the Bonch admitted to be good, and not contradicted by any.

And for the Office found after the Grant made, I did not speak to it, be∣cause it is of no purpose to help the Patentee, but yet shall serve the Queen for the mean profits, as hath been said: See more of this case, Trin. 36 Eliz. pl. 2.