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Dy. f. 1.
12 H. 4. f. 23. pl. 6.
Winnington's case, 2 Co. 59.
So if I covenant with I. S. a stranger, in consideration of natural love to my son, to stand seised to the use of the said I. S. to the intent he shall enfeoff my son; by this no use ariseth to I. S. because the law doth respect that there is no immediate consideration between me and I. S.
1So if I be bound to enter into a statute before the mayor of the staple at such a day for the security of a hundred pounds, and the obligee, before the day, accept of me a lease of a house in satisfaction; this is no plea in debt upon my obligation: and yet the end of that statute was but security of money; but because the entering into this statute itself, which is the immediate act whereto I am bound, is a corporal act which lieth not in satisfaction, therefore the law taketh no consideration that the remote intent was for money.
So if I make a feoffment in fee upon condition that the feoffee 2[37 EL. Ches- shall enfeoff over, and the feoffee be disseised, and a descent cast, and then the feoffee bind himself in a statute, which statute is discharged before the recovery of the land: this is no breach of the condition, because the land was never liable to the statute; and the possibility that it should be liable upon the recovery the law doth not respect.
See Blackstone Com.
So if I enfeoff two upon condition to enfeoff, and one of them take a wife; the condition is not broken: and yet there is a remote possibility that the joint-tenant may die, and then the feme is intitled to dower.
So if a man purchase land in fee-simple, and die without Book 2.c.14. issue: in the first degree the law respecteth dignity of sex, and not proximity; and therefore the remote heir on the part of the father shall have it before the near heir on the part of the mother: but in any degree paramount the first the law respecteth it not; and therefore the near heir by the grandmother on the part of the father shall have it before the remote heir of the grandfather on the part of the father.
[37 Eliz. Dacre's case, obiter.]
This rule faileth in covinous acts, which though they be conveyed through many degrees and reaches, yet the law taketh heed to the corrupt beginning, and counteth all as one entire act.
As if a feoffment be made of lands held by knight's service to
'Omitted in Camb, MS.
2 This marginal reference must have been made, I think, while the case stood as a judgment of the court at Chester, and before it was brought before the Queen's Bench.
I. S. upon condition that he within a certain time shall enfeoff I. D. which feoffment to I. D. shall be to the use of the wife of the first feoffor for her jointure, &c.; this feoffment is within the statute of 32 H. VIII. nam dolus circuitu non purgatur. In like manner this rule holdeth not in criminal acts, except they have a full interruption; because when the intention is matter of substance and that which the law doth principally behold, there the first motive will be principally regarded, and not the last impulsion. As if I. S. of malice prepense discharge a pistol at I. D. and miss him, whereupon he throws down his pistol and flies, and I. D. pursueth him to kill him, whereupon he turneth and killeth I. D. with a dagger; if the law should consider the last impulsive cause, it should say that it was in his own defence: but the law is otherwise, for it is but a pursuance and extention of the first murderous intent. But if I. S. had 44 Ed. 3. f. 44. fallen down, his dagger drawn, and I. D. had fallen by haste upon his dagger, there I. D. had been felo de se, and I. S. should go quit.
Also you may not confound the act with the execution of the act; nor the entire act with the last part, or the consummation of the act.
[21 Eliz.] Dy. f. 4, 5.
For if a disseisor enter into religion, the immediate cause is Lit. sec. 410. from the party, though the descent be cast by act in law: but the law doth but execute the act which the party procureth; and therefore the descent shall not bind. Et è converso; If a lease for years be made rendering rent, and the lessee make a feoffment of part, and the lessor enter; the immediate cause is from the law in respect of the forfeiture, though the entry be the act of the party but that is but the pursuance and putting in execution of the title which the law giveth; and therefore the rent or condition shall be apportioned.
So in the binding of a right by a descent, you are to consider the whole time from the disseisin to the descent cast; and if at all times the person be not privileged, the descent binds.
And therefore, if a feme covert be disseised, and the baron 9 H.7.24. Dy.f.143, 144. dieth, and she taketh a new husband, and then the descent is
'Omitted in Camb. MS.
The Camb. MS. has: "the act itself with the execution only of the act, and so the cause of the act with the cause of the execution of the act, and by that means make the immediate cause a remote cause."
• The remaining cases under this rule are omitted in the Camb. MS. They would not have illustrated the rule as there enunciated, and given in the preceding note,
Dr. f. 159.
cast; or if a man that is not infra quatuor maria be disseised, and return into England, and go over sea again, and then a descent is cast; this descent bindeth, because of the interim when the persons might have entered: and the law respecteth not the state of the person at the last time of the descent cast, but a continuance from the very disseisin to the descent.
So if baron and feme be, and they join in a feoffment of the wife's land rendering a rent, and the baron die, and the feme take a new husband before any rent-day, and he accept the rent; the feoffment is affirmed for ever.
50 E. 3. f. 24. pl. 16.
Non potest adduci exceptio ejusdem rei, cujus petitur dissolutio.
IT were impertinent and contrary in itself for the law to1 allow of a plea in bar of such matter as is to be defeated by the same suit for it is included; and otherwise a man should never come to the end and effect of his suit, but be cut off in the way.
And therefore, if tenant in tail of a manor whereunto a villain is regardant discontinue, and die, and the right of the entail descend unto the villain himself, who brings formedon, and the discontinuee pleadeth villenage; this is no plea: because the devester of the manor, which is the intention of the suit, doth include this plea; because it determineth the villenage.
2 So if tenant in ancient demesne be disseised by the lord, whereby the seigniory is suspended, and the disseisee bring his assize in the court of the lord, frank fee is no plea: because the suit is to undo the disseisin, and so to revive the seigniory in ancient demesne.
So if a man be attainted and executed, and the heir bring error upon the attainder, and corruption of blood by the same attainder be pleaded to interrupt his conveying in the same writ of error; this is no plea for then he were without remedy ever to reverse the attainder.3
The Camb. MS. has: "to give a man remedies, and then to cut him off the means to come at the effect of his suit by an allegation collateral, which the principal suit doth include and make an end of."
2 Omitted in Camb. MS.
The Camb. MS. cites 11 Hen. 4. fo. 65, pl. 22, the case of executors bringing error to reverse an outlawry, which may have suggested or confirmed Bacon in his
So if tenant in tail discontinue for life rendering rent, and the 38 Ed.3.1. 32. issue brings formedon, and the warranty of his ancestor with assets is pleaded against him, and the assets is layed to be no other but his reversion with the rent; this is no plea: because the formedon, which is brought to undo this discontinuance, doth inclusively undo this new reversion in fee, and the rent thereunto annexed.
But whether this rule may take place where the matter of the plea is not to be avoided in the same suit, but in another suit, is doubtful and I rather take the law to be, that this rule doth extend to such cases, where otherwise the party were at a mischief, in respect the exceptions and bars might be pleaded cross, either of them in the contrary suit, and so the party altogether prevented and intercepted to come by his right.'
So if a man be attainted by two several attainders, and there is error in them both, there is no reason but there should be a remedy open for the heir to reverse those attainders, being erroneous, as well if they be twenty as one. And therefore
if, in the writ of error brought by the heir of one of them, the other attainder should be a plea peremptorily; and so again, in error brought of that other, the former should be a plea; this were to exclude him utterly of his right: and therefore it shall be a good replication, to say that he hath a writ of error depending of that also; and so the court shall proceed: but no judgment shall be given till both pleas be discussed; and if either plea be found without error, there shall be no reversal either of the one or of the other; and if he discontinue either writ, then shall it be no longer a plea. And so of several outlawries in a personal action.
And this seemeth to be more reasonable, than that generally an outlawry or an attainder should be no plea in a writ of error brought upon a diverse outlawry or attainder, as 7 H. IV. and 7 H. VI. seem to hold. For that is a remedy too large for the mischief; for there is no reason, if any of the outlawries or
Conveying" here and below seems to mean "claiming" or "deriving
The Camb. MS. has: "This rule may be extended upon the general reason thereof; which is this: that when the law seeth that a man hath right, it will not prevent him of the means to recover it. And therefore though the exception be not comprehended in the same suit, but be out of it, yet, if there be remedy also to defeat that impediment by another suit, the law will not permit the party to be at a mischief, and [that] the exceptions should be pleaded cross either of them in the other suit."
2 This last sentence and the whole of the following paragraph are omitted in the Camb. MS.
7.4. f. 39. pl. 4.
H. 6. f. 44.
Fitz. Tit. Age, pl. 45.
attainders be indeed without error, but it should be a peremptory plea to the person in a writ of error, as well as in any other action.
But if a man levy a fine sur conusaunce de droit come ceo que il ad de son done, and suffer a recovery of the same lands, and there be error in them both; he cannot bring error first of the fine, because by the recovery his title of error is discharged and released in law inclusivè: but he must begin with the error upon the recovery, (which he may do, because a fine executed barreth no titles that accrue de puisne temps after the fine levied,) and so restore himself to his title of error upon the fine. But so it is not in the former case of the attainder; for a writ of error to a former attainder is not given away by a second, except it be by express words of an act of parliament, but only it remaineth a plea to his person while he liveth, and to the conveyance of the heir after his death.
But if a man levy a fine where he hath nothing in the land, which inureth by way of conclusion only, and is executory against all purchases and new titles which shall grow to the conusor afterwards, and he purchase the land, and suffer a recovery to the conusee, and in both fine and recovery there is error; this fine is Janus bifrons, and will look forwards to bar him of his writ of error brought of the recovery; and therefore it will come to the reason of the first case of the attainder, that he must reply that he hath a writ also depending of the same fine, and so demand judgment.'
To return to our first purpose: like law is it if tenant in tail of two acres make two several discontinuances to several persons for life rendering rent, and the issue after his death bringeth formedon of both, and in the formedon brought of white acre the reversion and rent reserved upon black acre is pleaded, and so contrary. I take it to be a good replication, that he hath formedon also upon that depending, whereunto the tenant hath pleaded the descent of the reversion of white acre; and so neither shall be a bar. 2 And yet there is no doubt but, if in a formedon the warranty of tenant in tail with assets be pleaded,
In lieu of the two preceding paragraphs the Camb. MS. has: "But if a man levy many fines of the same lands and there be an error in them all, yet he cannot bring. error of any save the last because by his own later fines he gave away his title of error to the former fines inclusive. But when a man is attainted, his writ of error to a former attainder is not given away, but only it remaineth a plea to his person while he liveth, and to the conveyance of the heir after his death."
2 This is omitted, to the end, in Camb. MS.