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he gained by wrong both the tail and the reversion, and [279 a] then had in him one entire estate in fee; now when the donor disseiseth him, he gains the estate which the disseisor had, which was entire, and so his disseisin cannot divide the estate as they were; for his whole estate is by the wrong in the first disseisor, none having right of entry but the donee; then when he makes his feoffment But it over, that gives no estate, but that wrongful one. gives away his right also, not by granting, but by drowning and dying in the land. So then when the donee reenters, he can have no more than his own, and must, by his entry, restore the reversion; the feoffee cannot hold the reversion, because the estate he had was no other than that was wrongfully gotten by the donor, from the first disseisor, and given to him; wherein there was, in effect, the tail of the donee, and the reversion of the disseisor; and now, when the donee reenters, he cannot restore the reversion to the feoffee, in respect of the right, because it is utterly annihilated by the feoffment, which cannot give, but doth distinguish it.

And now you must see no other right but that which grows out of the disseisor's; whereof the first is both the best in estate and right; and therefore if the first disseisor had entered upon the feoffee of the donor disseisor, and then the donee had entered upon him, no doubt the reversion had been left in the first disseisor, and then the feoffee had no way by his buried right to recover now, or after the death of the donee without issue; so here difference appears, that in this case the first disseisor hath right to the whole estate, wherein the right is buried, and so redounds to his whole benefit: in the principal, not so; for the Lady Frances had right only to the reversion in fee, after both the estates ended, whereof the one helps the other.

So note, that the right doth extinguish, whether it be by feoffment, release, or confirmation, to the benefit of the estates then last in being, as of the first disseisor. Much more here, of the discontinuee, being now in esse, not to the benefit of the ancient right; for one right cannot extinguish another.

[279 b]

That though the demandant is to be barred of the third part only, yet it is cause to abate the writ, being a wilful Ant. 164 deserting, or departure, from his writ and demand.

3d Point.

11

Co. 5. b. 45. b.

3 Cr. 343.

2 Cro. 499.

1 Saund. 295.

11 Co. 45. b.

[280]

1 Saund. 285.

Now then, admitting that, for the third part, the demandants are to be barred upon their own confession direct, according to my opinion, which must be peremptory and final for so much, though there might have been a good action for the whole, if they had tarried their time, till after her death; I hold, that the demandant can recover nothing in this suit, but the whole writ is to be abated; for the writ is falsified of their own showing, and that in a substantial part, and not in point of form; for it appears that they have no right of action at all for this third part. As if a man should demand a debt of twenty pourds, and confess that he hath no right to ten pounds of it; or demand a hundred acres, and confess that he hath no right to fifty of them; no doubt the court, ex officio, or the party either by plea in abatement, or as amicus curia, at least, might take knowledge and abate the writ.

But if they went on to issue, and a verdict given, where the statute gives relief, it doth as well when it appears of the parties showing, as otherwise. 14 E. 3. F. Bre. 272. Formedon in descender; the gift was traversed to all; after the demandant said they were agreed, the tenant to confess the gift for part, and the demandant to confess no gift for the rest; the court held that by this the writ should abate; wherefore the judgment was first given against the tenant for the third part, and against the demandant for the rest.

Et 9 H. 6. 54. One brought a detinue for 'two writings, and for one made no title; Babington was of opinion, that though this be a bar for that, yet it may be pleaded in abatement for all, as being more to his advantage. But if it were only some writings, then it must be in bar, as the worthier. But then if it were found by verdict it were otherwise. So there likewise, when a formedon is brought of land and advowson; which is also one general point of Godfrey's case, Co. lib. 11. 45.

The alterations made of the reversion since the gift in tail by the fine, 3 Jac., are true; one by the gift of the third part to the Earl of Rutland, during the life of the Lady Frances, whereof we have spoken.

The other, the conveyance of the reversion in fee simple, as well of that third part after the earl of Rutland's estate ended, as of the other two parts, both which are to the use of the Lady Frances and her heirs, as it was before.

[280 a]

4th Point.

To the second I do agree, that if there be an alteration of the reversion, whereby it is made another reversion than it was before, that it must be mentioned in the writ; so is Wiseman's case, where the reversion that was in fee, 2 Co. 15. a. was turned into an estate in tail, though in the same person.

And Fitzh. Nat. Br. 219. F. Register 242, where an estate for term of life was interposed, though ended; yet there is a writ mentioning that estate determined.

But here the reversion for the two parts, is the very same in law, in the donor, that it was at the first, though it be in her now by a second means, that is, by this second fine to the old use. Wherein observe Bo-kenham's case, 28 Hen. 8. Dyer 7. fol. b. which was, that Bo-ken- 1 ham, being cestuy que use before the statute of land holden by knight's service, Jay and other being his feoffees, did enfeoff Jenor and others to the use of Bo-kenham and his wife, and after their decease, to the use of Bo-kenham and his heirs Bo-kenham died, and this was adjudged to be a reversion and the old state. And in this case, Willowby cites a judgment of the Lord Rosse's, which came to this: that a man being (as Baldwin puts it) cestuy que use of two acres, one by priority, and the other by posteriority, made a feoffment together of both, yet the priority remained.

Now, though when the Lady Frances with the Earl of Essex levied the fine, she had no use, as in the other cases, but land in possession, yet she raised both the estate in tail and her own reversion by uses. And though lands and uses cannot now stand divided, as they did be

2

And. 2, 3.

Co. L. 22. b.

Co. 91. b.

Ant. 27. Co. L.

23. a. Dy. 11.

2

Ro. 37. 1 Co.

102. b. 13. 36.

[280 b]

[281]

fore the statute, yet the owner of the land hath power to give the use, as he did before, and the statute couples the lands unto it, as it did when it found land in use at the making of the statute. And as upon the fine of 33. there was first an use, which was judged in reversion, and then the land followed in the same degree; so the second fine, by the help of the common law, revives the same use, being of the same reversion, and the statute makes it in the same degree, and the rather, because there is no express use in either, but the use made by law.

But that it was a fault, take the case of the Register, and Na. Br., stronger, considering that there the fee of reversion was never stirred; here it is; so that you must plead upon this statute, that by force of that conveyance and statute you are seised, not by force of the first conveyance. And so it may serve if you had granted the reversion upon condition and reentry.

It may be objected, that the tenant or vouchee in this case, could not plead this matter in abatement, for two causes. First, because they had pleaded a plea in abatement of the writ before, which was judged good against them; and the court awarded, that they should answer to the action of that writ.

Secondly, because they had pleaded in bar, and therefore could not resort back to a plea in abatement; and both are true.

But I answer, that there is no plea in abatement whereof the party needs speak, as of pleas in abatement arising dehors the record, and whereof the court can take no knowledge.

But in this case, where the cause appears to the court, either of the parties' own showing, as here by variance from the register in the very case appearing, or by false Latin, or the like, in such the court may, and ought, ex officio, to abate the writ at any time. And if the tenant or vouchee shall inform the court of it, he is in that but amicus curia, and this information is not formal in pleading, nor in court, but verbal, and may be done anywhere, and by any body. As in the case of 4 H. 6. 16, in a forme

[281 a]

don brought by the Duke of York against the Earl of Warwick; at the summons returned, the tenants were demanded and essoined, and the essoiner pleaded in the abatement, that the writ was Dux Hiberniæ, where it ought to be Dominus. And it was said per cur. that the Dux for Domiessoinee can plead nothing, but he may only demand the demandant to make him nonsuit; therefore he showed this as amicus curia. For it was agreed that the court, ex officio, ought to abate when the fault is apparent.

And therefore I condemn the case 40 Edward 3. 35, when a formedon in descender was brought of twenty acres, which, with other twenty acres, J. S. gave B., and the demandant held him insimul cum D.; after view, the tenant pleaded this abatement, and it was denied him as an exception, not rising from view, which was true as of his plea, but it was the office of the court. Fi. N. Br. 26. It must be of parts undivided, and before partition the insimul. So then it remained a fault, whereof, when it appears to the court of the plaintiff's shewing, advantage might be taken to abate to the writ in such manner as aforesaid.

nus.

Now the only question is, whether the advantage being 5th Point. permitted, after it might have been taken, and the parties descending to an issue, and verdict found by twelve men, whether the fault in the writ be remedied by the statute of jeofails, 18 Eliz. c. 13; and I hold plainly it is. And because this statute and the like are of sovereign use to Hobart. A fault in a writ cure those petty maladies that arise of these curious remedied by forms of law, I will enlarge myself upon it; and I profess fails of 8 Eliz. statute of jeofthat I may enlarge the extent upon these statutes so favourably, as I remove no substantial point or landmark between right and wrong; and therefore I do not very well like the opinion of M. 1 H. and 2 P. and M., cited Co. 36. b. 11 in Sir John Heydon's Co. 1. 11. 6, that a verdict between Co. 6. b. Utra. a demandant and a vouchee shall be out of the remedy of the statute of 32 H. 8; the words being when the issue is tried for the party plaintiff;' surely he is a party both to the suit and issue; and the common law, which is the mother and patron of reason to a statute, allows him a

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And. 1. 26, 60.

5

32 H. 8. cap.

30. O. Benl. 37.

Benl. M. Kel.

207. b Benl. M, Ash, Pl. 5,

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