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.

Hillary Term, 38 Eliz. Henry Earl of Pembrook, versus Sir Henry Backley.

IN an Action upon the Case, between Henry Earl of Pembrook Plain∣tiff, and Sir Henry Backley Knight, Defendant, the case upon the plead∣ing appeareth to be thus.

The said Earl was seised in his Demesn as of Fee, of the Mannor of Stock∣trift, in the County of Somerset, to which Mannor the Office of the custo∣dy of the Forest of Selwood, in the same County belongeth, and also that there was before time of memory, an Office within the same Forest called the Lievtenant-ship, or Custody of the said Forest belonging to the said Mannor, of which also the said Earl was seised in his Demesn as of Fee: And that there was one part of the said Forest called the West part of the said Forest, in which there were two Walks, or Bayliwicks, the one called Staverdale walk, and the other Brewick walk: And that the said Lievtenant had the charge of the Deer, and the disposition and appointment of the Keepers of the said Forest. And that the said Earl being so seised, by his Writing, bearing date 5. Novemb. 12. Eliz. reciting that his Father had granted the Office of Liev∣tenant-ship, and Deputy-ship, of the said West part of the said Forest, Cum vadiis, &c. quando acciderit, and the Keeper-ship of Brewick-walk afore∣said, to the said Sir Maurice Barkley Knight, and the Heirs Males of his body, and instituted and ordained him, and the Heirs Males of his body, Liev∣tenant and Deputy therof to the said Earl and his Heirs, confirmed the Grant aforesaid.

And further by the same Deed granted and confirmed to the said Sir Mau∣rice, and to the Heirs Males of his body, the said Lievtenant-ship and Depu∣ty-ship of the said West part of the said Forest, and also the Keeper-ship of the said Walk called Staverdale Walk, together with the Lodges, &c.

Provided alwaies, and the said Sir Maurice covenanted and granted, for him and the Heirs Males of his body, with the said now Earl his Heirs and As∣signs, that it shall be lawfull for the said Earl his Heirs and Assigns, to have all the Preheminence or commandment of the said Game and Hunting, and pleasure there, as if this Grant had not been made.

Provided also, and the said Sir Maurice covenanted, granted, and promi∣sed for him, and the Heirs Males of his body, to, and with the said Earl, his Heirs and Assigns, that the said Sir Maurice and the Heirs Males of his body, and their Assignee, and Assignees, will preserve the Games as fair as it com∣monly hath been used, and that neither the said Maurice, nor any of the Heirs Males of his body, nor any of their Assignees, will cut any manner of Wood growing upon any part of the Premisses, unlesse for necessary Brouse, and such as they may lawfully cut of their own, and as was accustomed, &c. af∣ter which Sir Maurice died, and Sir Henry Barkley his Son and Heir Male, cut four Okes within the said Walk called Brewicks, growing upon the soile of the Queen there, every one of them being Timber, and of the value of 13 s. 4 d. and converted them to his own use. And whether by this act done by the said Sir Henry the now Earl of Pembrook, may re-enter into the things granted by him, was the question, which stands upon two points, the first, Whether the last Proviso makes a Condition, or be but a meer Cove∣nant. 2. Whether this Act makes a Forfeiture of the said Offices granted as be∣fore by the course of the Common Law.

Gaudey, Clench, Walmsley, and Beamont, that the first Proviso is not a

Condition, either because he is not by this to do more then he may do by his superior custody, in which case he ought to do it by his own authority, as to take his fee Deer, or to chase and kill Deer by Warrant, and the like; or otherwise if it shall be taken, that he may by this Proviso kill or chase the Game at his pleasure, it is void, because as to it, he is to do that which he ought not to do by his Office, to wit, to destroy the Game, which by his Of∣fice he is to preserve; and therfore for the first, it stands meerly upon the Covenant.

Then when he saith further in the second clause; Provided also, and the said Sir Henry Barkley covenants, this is to be intended that it shall be as the other for the word also, and this is but a bare Covenant as the first was.

And they said further, that this last Proviso shall be said entirely the words of the Grantee himself, as the Covenant is, and without words of the Grantor a Condition cannot be, for it is for him to condition with the Estate given, and not for him to whom the Grant is made; And therfore suppose that it had been on the other part, to wit, Provided alwaies, and the Gran∣tor covenant that the Grantee shall have the refuse of the brouse, and the like; this shall not be said to be any Condition, but a meer Covenant: In like manner shall it be on the other part.

And further it is common for Scriveners and ignorant persons to make in effect every Covenant to begin with a Proviso in this manner, and ther∣fore to expound such a manner of Proviso as a Condition, it shall be too peri∣lous to the Estates of men.

And for the case upon the Lease made by Serjeant B••••dloes, which was thus.

Provided alwaies, and it was covenanted, granted and agreed between the parties, if the Lessee sell, or alien the term that the Lessor shall have the pre∣ferment, This they agreed to be a good Condition, as was adjudged in the Common Bench, 32 Eliz. but the case there is, because they are the words as well of the Lessor, who may add a Condition to the Estate, as of the Les∣see who made the Covenant, which is not here. But they said, that the case between Hamington and Pepull which was 17 Eliz. in the Kings Bench, was more nigh in resemblance to the case in question, which was that the said Pepull made a Lease for years to Hamington of a Farm, except the wood, and covenanted with the Lessee that he shall take all manner of under-wood; provided alwaies, and the Lessee covenant that he will not cut any manner of Timber-tree, & this was adjudged no Condition. And as to the other point they said, that the cutting of Trees by him who had the custody of the Forest, is not a forfeiture of his Office by the Common Law, as it is of him who hath the custody of a Park, for there is another speciall Officer who hath the charge of wood in a Forest, to wit, the Verderer and the Woodward, and therfore it is no forfeiture of him who hath the custody of the Forest to cut Trees, for he hath another charge, to wit, the custody of the Game on∣ly, and not of the Wood.

And further the cutting of one or two Trees is no cause of forfeiture, for it may be that there is Covert-shade and brouse sufficient of that which yet remains, in which case it is no forfeiture if it be not averred that these things are impaired by it.

But the chief Iustices, chief Baron and all the other Iustices and Barons were of a contrary opinion. And for the matter of forfeiture at Common Law, they said that it was a cause of forfeiture of an Office at common Law to cut the Trees, as well in the case of a Forester, as in case of a Park∣keeper, for the Forester hath not only the charge of the Game, but of all that is within the Forest by which the Game is fed, preserved, or succoured,

and they are fed by the brouse, and succoured by the shade, and have the calmer and better lodging by reason of the Trees; and therfore by their Office they are to have a care of these things as well as of the Game, for without these the Game cannot stand: as to say, that there are others who have speciall charge of the Wood and Pasture, as the Woodward, or Agister, &c. this is no proof that the Foresters, or Keepers are discharged therby.

And the Foresters and Keepers are by their Offices to present the Mis∣doers in the Woods within the Forests of the Wood-wards, and therfore they have to do with it. And by Carta de foresta, none may cut his wood within his Forest, Nisi per visum Forestraii, ergo the Foresters have charge therof: And every voluntary act done by an Officer contrary to that which belongs to his Office is a forfeiture of his Office, as by voluntary killing of Bucks, cutting of Trees, Wood, or the like: but otherwise it is of things done or suffered by his negligence if it be not common or often. And albeit the Trees here were not many, or that it was not averred that the Game was to be hurt therby, yet it cannot be intended but that it is so much im∣paired by it, as it should be by the killing of a Buck in the Forest, by which the Office shall be forfeited, because the Game is therby the worse, and yet there may be Game sufficient without this Buck, but he hath voluntarily done a thing contrary to his Office, and therfore it is a Forfeiture of his Of∣fice, and so it shall be in this case.

And for the other point they said, it was a Condition and also a Covenant, and it was for good purpose to have it to be so: For suppose that the Game had been destroyed by the said Sir Henry, shall this he a sufficient recom∣pence or satisfaction to enter for the Condition broken? No, and therfore the Covenant was made to recompence him for Damages.

And when u••on the Habendum a Proviso is added for a thing to be done by him to whom the Deed is made, or to restrain him to do any thing, this is a Condition, as well as if it had been a Condition which shall make or shall restrain to do such a thing, for they are in this case the words of the Grantor, to restrain the Grant in some manner, and to shew in what manner he shall have it, and it is alwais to him who passeth the Estate, and to no other. Then suppose here, that the Proviso had been; Provided alwaies that the Grantee shall not cut any Tree, And the Grantee covenant also that he will not cut any Tree, this is plainly a Condition and also a Covenant; then it is as plain in the case in question, which is; Provided also, and the Grantee covenant, &c. that he will not cut any manner of Wood: distinguish the sen∣tence by his proper distinction, and it is cleer that it is a Condition as well as a Covenant. And to say, that there is a diversity between this case and the case upon Serjeant Bendloes Lease, because there it is, Provided al∣waies, and it is covenanted and agreed between the parties; In which case it is alledged, that the agreement which is the Plaintiffs, goes to the Proviso to make it a Condition for him, as well as it shall go to the Grantee to make it to be a Covenant from him: they understand no difference, be∣cause the Proviso as it is placed, is of it self as spoken by the Plaintiff; and the agreement between the parties that such a thing shall be done by the Les∣see, makes it a Covenant on his part only, all being to be performed by him, as plainly as in the case in question.

And to say, that the last Proviso shall not be a Condition, because the first cannot enure as a Condition, because that which is to be done may lawfully be done with it, or without it, or because that the matter to which the Proviso is annexed, is repugnant to the nature of the thing granted, yet this is not be∣cause of the nature of the word it self, but by reason of that to which the Pro∣viso is annexed, and therfore the Proviso following hindred in its operation

by meanes of the word, also: And therefore if a man makes a Lease for yeers, provided alwayes that the lessor may enjoy and hold the Mannors of D. (which is other Land) or that the Lessee shall kill I. S. these are void of Conditions; But grant then that it is further provided also that he shall not alien his Terme, is not this a good Condition although that which was Precedent was no Condition? It is cleer that is not; And they said for Hamingtons Case that it was but of the nature of a declaration with what wood the Lessee shall meddle, because it depends upon the Covenant of the Lessor, and it is generall, to wit, that he may cut any manner of under∣wood, provided that he do not cut any manner of Timber; and Popham was of councell with Hamington in this case, and the Court at the begin∣ning insisted much that it was a Condition, and that for the reason then al∣ledged, that it depended upon the Covenant of the Lessor, which was general for all manner of under-wood, because that Standels growing between great Trees, might be taken within the generall words of all manner of under∣wood, for to make it plain it was well put in, that he shall not cut any man∣ner of Timber Trees, and therfore in this point it was but a Declaration, with what wood he should meddle, although in truth it was of another thing then was comprised in the Covenant before: And then the adding of a Co∣venant to such a Proviso shall not make the Proviso of another nature, then it was before the Covenant made, or if no Covenant had been added to it, and upon this reason the Court then gave Iudgment for Hamington. And by him, if I am seised of the Mannor of D. in D. and of Black acre in D. and so seised, I covenant with I. S. that he shall enjoy the said Mannor for ten years: Provided and the said I. C. covenant that he shall not enjoy Black acre, this Covenant is not a Condition, but a Declaration deduced out of my Cove∣nant, to make a plain Declaration, that it is not my intent that Black acre shall passe, be it parcel or not parcel of the said Mannor; Then the Cove∣nant following will not alter the nature of the exposition of the Proviso which the Law shall make of it self, if it had stood of it self without a Cove∣nant following.

And for the Proviso here, he put this case, suppose it had been; Provided, and the Grantee covenants that he shall not cut any Trees: None will deny but that this had been a Condition and a Covenant also: And what diversity is there where the word is at the conclusion, and so couple the Condition and Covenant together. And we are not to alter the Law for the ignorance of Scriveners, who do they know not what by their ignorance, shall be correct∣ed by the Law.

And they agreed, that where a principall Officer is by his Office to make inferior Officers under him, and the inferior Officer commits a forfeiture, the superior Officer shall take advantage therof, and shall place a new Offi∣cer, as was done in 39 H. 6. for the Office of the Marshall of the Kings Bench, put in by the great Marshall of Englang.

Notes

• See this Case Coke lib 5. 76. a.
• When a Pro∣viso makes a Condition.