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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.
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 jointtenant may die, and then the feme is intitled to dower.
So if a man purchase land in fee-simple, See Blackand die without issue: in the first degree the Book 2. c. 14. 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.
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 37 Eliz. knight's service to I. S. upon condition that obiter.] 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 feoffinent is within the statute of 32 H. VIII. nam dolus circuitu non purgatur.
stood as a judgment of the court at Chester, and before it was brought before the Queen's Bench.
[Cattelyn and In like manner this rule holdeth not in crimStoel's case.] inal 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. 1 But if I. S. had fallen down, his dagger drawn, and I. D. had fallen by haste upon his dagger, there I. D. had been felo de 8, and I. S. should go quit.
44 Ed. 3. f. 44.
Also you may not confound 2 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.
Lit. sec. 410. For if a disseisor enter into religion, the immediate cause is 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
1 Omitted in Camb. MS.
2 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."
execution of the title which the law giveth; and therefore the rent or condition shall be apportioned.
1 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.
9 H. 7. 24.
Dy. f. 148,144.
And therefore, if a feme covert be disseised, and the baron dieth, and she taketh a new husband, and then the descent is 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 Dy. f. 159. 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.
Non potest adduci exceptio ejusdem rei, cujus petitur dissolutio.
Ir were impertinent and contrary in itself for the law to allow of a plea in bar of such matter as is
1 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.
2 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."
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 for.nedon, 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.
50 E. 3. f. 24. pl. 16.
1So 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.2
38 Ed. 3. f. 32. So if tenant in tail discontinue for life rendering rent, and the 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
1 Omitted in Camb. MS.
2 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 principle. "Conveying." here and below seems to mean claiming" or "deriving title."
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.1
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
1 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."