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.

Thomson Versus Trafford. Hillary Term 35 of Queen E••izabeth.

IN an Ejectione firmae, between John Thomson Plaintiff▪ and Thoma•• Trafford Defendant, the case was thus, The President and Schollers of Magdelen Colledge in Oxford, 20 Decemb. 8. Eliz Did let a Messuage u•• the Burrough of Southwark, to which no Land appertained to William Sta••∣dish for twenty years, from the Feast of Saint Michael next ensuing, ren∣dring the ancient Rent, and 25. Octob. 21. Eliz: they did let the same Mes∣suage to the same Standish for twenty years from the Feast of Saint Michae•• then next ensuing, rendring also the ancient Rent, and 31 August 30. Eliz. The President and Schollers made a new Lease of the same Messuage to Sir George Carew Knight, for twenty years from making of the Lease ren∣dring the ancient Rent, which Lease was conveyed by mean Assignments to the Plaintiff, upon which the Action was brought against the sayd Trafford

which had the Interest of the sayd Standish by mean Assignments: Popham said, that Ipso facto upon the last Lease made, and annexed by Standish, the first Leass was determined and gone, for this last contract dissolves the first when the one and the other cannot stand together, as they cannot here, be∣cause the one intermix with the other, and so was the opinion in the Com∣mon Bench about 1 Eliz. in the case of the Abby of Barking, of which I have seen a Report.

And here Standish before Michaelmas, next after the second Lease made to him could not grant over his first term to be good to the Grantee, for if this should be, the second term shall not be good to Standish; but for the remnant of the years after, the first term finished, which cannot be be∣cause it standeth in the power of the Grantor with the assent and acceptance of the Grantee to make the second Grant good, for the whole term, to wit, from Michaelmas, and this cannot be but by a determination in Law of the first term immediatly, which is made by his own acceptance, and therefore a prejudice to none but himself, and Volenti non fit injuria, and the first Term cannot have his continuance untill Mich. but is gone presently by the accep∣tance of the second Lease in the whole, for the first contract which was entyre cannot be so dissolved in part, but in the whole, as to that which the party hath, and therefore the first Term (as the case is here) is gone in the whole, to which Clench and Gaudy agreed: And if so then this last Lease to Standish was but as a Lease made to begin at a time to come, which is made good by the Stat. of 14 Eliz. if it do not exceed the time of 40 years from the making of the Lease; for the purpose of this Act was, that Colledges and the like shall not make Grants in Reversion, albeit it be for a year, and the reason was, be∣cause that by such Grants in Reversion they shall be excluded to have their Rent of the particular Tenants for the time: And therfore in the case of the Countesse of Sussex, who had a Ioynture assured to her for her life by Act of Parliament, with a Provise, that the Earle her Husband might demise it for one and twenty yeares, rendring the usuall Rent, where the sayd Earle had made a Lease for one and twentie yeares, according to the Statute, within a yeare before the end of the same Lease, the said Earle made a new Lease of the same Land to Wroth his Servant for one and twentie yeares, to begin after the end of the former Lease, rendring the usuall Rent, and died, the said Countesse avoided this last Lease by Iudgement given in this Court, because it shall be intended to be a Lease in Possession, which he ought to make by the Proviso, from the time of the making of it, otherwise by such perverse construction, the true intent of the Statute shall be utterly defrauded. But here to make a Lease for twentie yeares to one in Possession, and to make another Lease to another for twentie yeares, to begin after the end of the former Lease, is good, because that the one and the other do not exceed the fortie yeares comprised in the Statute.

And the Iustices of the Common Bench the same day at Sergeants Inn agreed to the opinion of Popham for the determination of the whole first Term, by the taking of the second Term by Standish.