seized, is a Denial of this Title; for if K. Car. 2. did present by Lapse, and K. Car. 1. did not die seized, 'tis with the Defendant. No Man is bound to answer that, which if he do, it will still be against him; but if a Man makes such an answer, as if true, the present Plaintiff hath no Title, 'tis enough: Then if it be true that no Right descended from Car. 1. to Car. 2. and that Car. 2. presented only by Lapse, what Right can his present Majesty have? And all this is confessed by the Demurrer, if well pleaded. And 'tis no objection to say, that the dying seized ought not to be traversed, but only the Presentation, for that is a Mistake. In case of Land 'tis good. And an Advowson is an Inheritance descendible in like Manner, and Mr. Attorney thinks it a good Traverse; for he all along in his Declaration alledges a dying seized from Queen Elizabeth downward: And there are several Precedents thus, Winch's Ent. 661, 662, and Winch 912, 686, 692, and Buckler and Symonds, Winch 911, 912, is of an Advowson in Gross; and in the same Book 35, 59, are thus. A Man may die seized of an Advowson, as well of Land; and if he doth not die seized, it doth not descend, and the Seisin in Gross is not to be traversed, as is 1 Anderson 269, and Hob. 102.
In a Quare Impedit especially.—Then 'twas said, that the true Reason and Nature of a material good Traverse is well explained in Vaughan's first Case of Tufton and Sir Rich. Temple, and 1 Saund. 21, 22; and it is this, especially in a Quare Impedit: If any Thing in the Count be travers'd, it must be such Part, as if true, is inconsistent with the Defendant's Title; [221] and if false, or found against the Plaintiff, doth absolutely destroy his Title: Nay, if the Traverse leaves no Title in the Plaintiff, then 'tis good, whatsoever comes of the Defendant's. Then the Difficulty is, If the King by his Prerogative may waive his own Title which is traversed, and insist upon the Deficiency of that which the Defendant alledges? And in the Case of the King and the Bishop of Worcester, and Jervis, in Vaughan 53. there 'tis said, That the King ought to maintain his own, and not to question the Defendant's: He cannot desert that which he hath alledged for himself, and fall upon the Defendant's Title: And Reason warrants such Rule: For, (tho' the King hath no Damages in a Quare Impedit, notwithstanding his laying it ad dampnum, Hob. 23. yet) the Suit supposes an Hindrance and Damage to the King: And if the Right be not his, he hath no Cause to complain of the Defendant; tho' another hath. Every Man is to recover by his own Strength, and not by the Weakness of the Defendant's Pretensions: And if the Law be thus, then how can Mr. Attorney General take Advantage of this upon Demurrer after Oyer? For, now upon Oyer, 'tis, as they say, become Part of the Defendant's Plea, and consequently it must be Part of the Inducement: And if so, he ought in that Case to have taken Issue upon the Traverse, which denied his Master's Title. Wherefore, upon the whole Matter, it was prayed, That the Judgment should be reversed.
Argument for the Defendant in Error.—-On the other Side, 'twas argued for the King, That this Judgment ought to stand, and as to the last Point, 'twas said, That taking it for granted, the King could not traverse any Point of the Defendant's Plea; yet certainly he might demur upon the whole, in case it were insufficient; That now Oyer was craved, and had, the Deed did become Part of the Defendant's Plea, and must be taken as such; That tho' there had been no need of a Profert, yet when 'tis produced, 'tis such as he hath pleaded, and upon the whole, the Court is to judge, there being a Demurrer; That as the Case stood, the King might take Advantage of both the Exceptions; That the Declaration of it self was good, and if the Plea be nought, the King ought to have Judgment for him; That every Plea is to be taken most strongly against the Party that pleads it; That here the Defendant had admitted K. Car. 1. well seized, that he ought to shew it out of him, otherwise the Plea was ill; that every Traverse must have an Inducement; That if upon the whole Plea it did not appear that King Car. 1. parted with this Advowson, 'tis naught; that if by the Party's own shewing it was manifest to the Court, That the King continued seized, and what he doth further shew, no ways contradicts it, he could not traverse the Dying seized, and therefore a Demurrer was most proper; and consequently, upon this Demurrer, they were let in to affirm, that nothing passed from the King by these Letters Patent of Car. 1.
Answer to the Arguement as to the Addition.—Then it was argued, That this Grant was void, because it was to a Person then Esq; that Tunc Armigero can have
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