Shelley's case Nicholas wolf bring a ejection strong of certain land in b in  the county of Sussex against Henry Shelley Esq defendant and declare on a  lease by Richard Shelley Esq to which the defendant plead not guilty and a  special verdict be find to the effect follow videlicet that Edward Shelley and  Joan his wife be seize of the manor of Barhamwick whereof the say land wherein  the say ejectment be suppose be and be parcel in special tail that be to say  to they and to the heir of their two body lawful beget and show how the  remainder to the say Edward and his heir and it be further find that the say  Edward and Joan have issue Henry their old son and the say Richard their young  son and afterward the say Joan die and the say Henry have issue marry yet live  die in the life of the say Edward his wife then big with child of the say  Henry the now defendant and afterward the say Edward Shelley by indenture bear  date the that of September in the first and second year of the late king and  queen Philip and marry and first deliver the six day of October follow do  covenant with Cowper and Martin to suffer a recovery of the say manor among  other thing and that the say recovery shall be to the use of the say Edward  Shelley for the term of his life without impeachment of waste and after his  decease to the use of mr Caril and other for year and after the say year end  then to the use of the heir male of the body of the say Edward Shelley lawful  beget and of the heir male of the body of such heir male lawful beget and for  default of such issue to the use of the heir male of the body of John Shelley  of Michael grove c it be also find that the say Edward Shelley the that day of  October be the first day of the term between the hour of five and six in the  morning die and afterward the recovery pass the same day with a voucher over  and immediate after judgement give a to have facias seisinam be award the wife  of the say Henry Shelley be at that time great with child with the defendant  and afterward that be to say the that day of October next follow the recovery  be execute and afterward the four day of December then next follow the wife of  the say Henry be deliver of the say Henry now defendant and it be likewise  find that the say manor be in lease for year at the time of the say judgement  and recovery by force of a lease make long before the original writ purchase  upon which the say recovery be have and that the say Richard Shelley second  son of the say Edward Shelley and uncle to the say defendant enter and make a  lease to the say Nicholas wolf now plaintiff in the ejection strong and that  the say Henry Shelley the defendant enter upon the say Nicholas wolf and do  eject he and upon the whole matter aforesaid the juror pray the advice and  judgement of the court if the entry of the say Henry the defendant be lawful  or not and if by the judgement of the court the entry of the say Henry shall  be deem unlawful then the jury find that the defendant be guilty and assess  damage and if the entry of the defendant shall be deem by the court to be  lawful then they find for the defendant that he be not guilty c this case be  divide into four principal question whereof the first be if tenant in tail  suffer a common recovery with a voucher over and die before execution if  execution may be sue against the issue in tail the second if tenant in tail  make a lease for year and afterward suffer a common recovery if the reversion  be present by judgement of law in the recoveror before any execution sue the  three if tenant in tail have issue two son and the elder die in the life time  of his father his wife privement enseint with a son and then tenant in tail  suffer a common recovery to the use of himself for term of his life and after  his death to the use of a and c for year and after to the use of the heir male  of his body lawful beget and of the heir male of the body of such heir male  lawful beget and present after judgement a to have facias seisinam be award  and before the execution that be to say between five and six in the morning of  the same day in which the recovery be suffer tenant in tail die and after his  death and before the birth of the son of the elder son the recovery be execute  by force whereof Richard the uncle enter and after the son of the elder son be  bear if his entry upon the uncle be lawful or not the four and last point if  the uncle in this case may take as a purchaser forasmuch as the elder son have  a daughter which be heir general and right heir of Edward Shelley at the time  of the execution of the recovery and this case be argue by Anderson the queen  sergeant and gawdy and Fenner sergeant for the plaintiff and by Popham  solicitor general Cowper and coke for the defendant and as to the first point  the plaintiff counsel argue that execution may be sue against the issue in  tail and their principal reason be because the judgement give against the  tenant in tail and the judgement for the tenant in tail to have in valve  against the vouchee bind the right of the estate tail and the issue in tail  shall not avoid it by the statute de gift conditional because the law adjudge  that in respect of the intend recompense the issue in tail be not prejudice as  if tenant in tail grant a rend for the release of one who have a right to the  land it shall bind the issue in tail because it be for the benefit of the  issue and so not restrain by the say act as it be agree in Edward b Octavian  Lumbard's case and if the recovery upon which execution be have in the life of  the tenant in tail shall not be a bar to the issue it will be mischievous and  a great impeachment to common assurance of land and further it be say that the  right of the estate tail be bind by the judgement and not by the execution for  if the right of the estate tail be not bind by the judgement it can not be  bind or bar by the execution have afterward as to the second point they  conceive that it be not any question but that the recoverors have not the  reversion present by the judgement notwithstanding the land be in lease for  year for they say that the judgement be that the demandant shall recover seize  of the land which be but executory and can not be execute until execution  entry or claim as if a common or reversion or any other thing which lie in  grant be grant upon condition if the condition be break the thing grant be not  in the grantor before claim for it be say that when a man may enter or claim  the law will not adjudge he in possession until entry or claim as to the three  point which be the great doubt of the case they argue that the say Richard the  uncle be in by purchase ex subsequent the entry of the defendant upon he be  not lawful and this in effect be their principal reason argument videlicet  that which original vest in the heir and be not in the ancestor vest in the  heir by purchase but this use original vest in Richard Shelley and never be  vest in Edward Shelley and therefore the use vest in Richard Shelley by  purchase and they say that it be manifest that the use never vest in Edward  Shelley for before the recovery execute no use can be raise for the use ought  to be raise out of the estate of the recoverors but the recovery be not  execute in the life of Edward Shelley and therefore no use can rise during his  life and sergeant Anderson say it be impossible that Richard Shelley shall be  in by descent because no right title action use or other thing touch the use  limit by the say indenture do descend to Richard but only a thing intend to he  which intent in his life receive no perfection and therefore this case be not  like any case where a right title action use or other thing descend from the  ancestor to the heir but be like the case in Edward a where the wife consent  to a ravisher have issue a daughter the daughter enter by the statute of  Richard a son be afterward bear he shall never divest it for it vest in the  daughter by purchase so be the case agree in Henry a if a lease be make to one  for life the remainder to the right heir of I S if I S die have a daughter his  wife with child with a son the daughter claim it by purchase and therefore the  son bear after shall never divest it but they rely principal upon the case in  Henry a that if a condition descend to the daughter and she enter for the  condition break the son bear afterward shall never enter upon her and yet  there she be in by descent and the title of her entry that be to say the  condition she have as heir and yet because she be the first in who it vest the  son bear after shall not divest it which be a strong case than our case at the  bar and further it be say by the plaintiff counsel that although the recovery  have be execute in the life of Edward Shelley yet ought the heir male to take  by purchase for they say that the manner of the limitation of the use be to be  observe in this case which be first to Edward Shelley for the term of his life  and after his death to the use of other for the term of year and after the  year end then to the use of the heir male of the body of the say Edward  Shelley lawful beget and of the heir male of the body of the say heir male  lawful beget in which case they say that if the heir male of the body of  Edward Shelley shall be word of limitation then the subsequent word videlicet  and of the heir male of the body of the say heir male lawful beget will be  void for word of limitation can be add and join to word of limitation but to  word of purchase and they say that forasmuch as those word heir male of the  body of Edward Shelley may be word of purchase that in this case the law will  construe and take they as word of purchase for otherwise the say subsequent  word and of the heir male of their body will be void and such construction be  always to be make of a deed that all the word if possible agreeable to reason  and conformable to law may take effect accord to the intent of the party  without reject of any or by any construction to make they void and therefore  Anderson put this case if a man make a feoff in fee to the use of himself for  life and after his decease to the use of his heir in this case the feesimple  execute but in the same case if the limitation be to the use of himself for  life and after his decease to the use of his heir and of their heir female of  their body in this case these word his heir be word of purchase and not of  limitation for then the subsequent word and of their heir female of their body  will be void so they conclude this point first that no use can rise until  execution sue no execution be sue in the life of Edward Shelley and then it  first vest in Richard as a purchaser before the son of the elder son be bear  and for the latter reason admit the recovery have be execute notwithstanding  the heir male of the body of Edward Shelley shall take by purchase and so  wherever way data they conclude that the use first settle in Richard Shelley  as a mere purchaser and as to the latter point which in effect admit as have  be say that the say word be word of purchase be that a lease for life be make  to a the remainder to the heir male of the body of Edward Shelley if in this  case Richard may take this estate tail by purchase as heir male  notwithstanding his elder brother have issue a daughter which be live and who  be his heir general they say there be no difference as to that where a estate  tail be limit by gift execute and when by way of remainder nor when the heir  male of the body claim by descent nor when by purchase for if a estate have be  make to Edward Shelley and to the heir male of his body in that case Richard  Shelley without doubt shall have have the land by descent and that by a  construction on the statute de gift conditional to fulfil the mind and intent  of the donor and so it be if I give land to a man and to his heir female and  the donee have issue male and female although the female be not heir general  yet she be heir special to claim per form gift and this be in effect the  substance of the three argument publish and deliver at large on the plaintiff  part before the justice of the queen bench in Hilary and easter term in the d  year of the reign of queen Elizabeth and on the defendant part it be argue  contrary as to the first point it be argue that execution can not be sue  against the issue in tail and therefore as it have be agree that the judgement  only against the tenant in tail do not bind but the judgement to have in  recompense sequitur a concession that the issue in tail can be bar and for  proof that in this case the issue in tail can not have any recompense first it  be say that if execution can not be sue against the issue in tail then the  issue in tail can not take any benefit of the recompense for it be agree in  Edward title recovery in valve Fitzherbert Edward foe that he who vouch shall  never have execution against the vouchee before execution sue against himself  so that the judgement to recover over in valve be not material as the case be  unless execution may be sue against the issue which can be in this case for he  who be in of a estate in possession by title paramount a recovery shall not be  bind by the same recovery but the issue in tail in our case be in of a estate  in possession which he have by title paramount the recovery and therefore the  issue in tail shall not be bind by the recovery in proof of the first  proposition it have be adjudge in Henry report by sergeant Bendloes which case  begin Henry in the book at large where the case be that a executor have  judgement to recover a debt due to the testator and die intestate before  execution and the ordinary commit the administration of the first testator to  one that the administrator can not sue execution upon that recovery because he  derive his interest from and represent the person of the testator and so  before the recovery so it be if there be two joint tenant and one make a lease  for year render rend the lessor die the other shall not have the rend because  he claim by the first feoff which be paramount the lease and the reservation  so if tenant for life make a lease for year reserve rend and afterward  surrender to he in the reversion not be in by force of his ancient reversion  he can have the rend new reserve and in proof that the issue in tail be in by  a title paramount the recovery he say that the issue in tail shall avoid all  charge lease and other encumbrance make by his ancestor because he claim per  form gift and if tenant in feesimple make a lease for life and suffer a  recovery he and his heir be for ever conclude but he say if tenant in tail be  of a reversion expectant on a estate for life and he suffer a recovery and  have judgement to recover over in valve yet his issue shall avoid the recovery  for he shall not be estopped because he claim in per form gift but if  execution have be sue in the life of tenant in tail then forasmuch as the  estate tail do not descend to the issue and forasmuch as then he may sue  execution over it be good reason to bar the estate tail but if the issue in  tail be in by lawful descent in possession of the estate tail before the  recovery be execute then the law seem to be otherwise Octavian Lumbard's case  in Edward which have be cite on the other side be not against this opinion for  there the issue in tail reap the benefit of the release make to his ancestor  but in our case the issue in tail be in of a estate tail paramount the  recovery can take benefit of the recompense over and wherefore shall not the  issue in tail in this case be at liberty to choose whether he will take the  estate tail or otherwise to admit execution to be sue against he and to sue  execution over in valve as well as in Henry fol in the case of exchange in  which case although asset of great valve descend to he than the land in tail  yet he may choose to have the one or the other at his election and if tenant  in tail be seize and levy a fine to the seize without warranty and die if the  issue in tail enter and be seize by force of the tail before all the  proclamation be make although the proclamation be afterward make yet that do  not bar the issue so if tenant in tail levy a fine and seize the conusee and  die before all the proclamation be make and after the proclamation in the time  of the issue in tail pass yet the issue be not bind thereby by the statute of  Henry and yet the word of the Act be that all fine after proclamation c shall  bar c but it have always be hold if the issue in tail be remit and seize by  force of the tail before the bar be complete that be to say before the  proclamation be pass the issue be not bind so in this case before execution  sue the issue in tail be seize by force of the tail and in per form gift  before the bar be complete and therefore the execution can be sue against he  nor can any bar after the death of his father be make to the estate tail which  be descend to he in possession and it be agree in Edward that if a seize at  the commonlaw before the statute of non-claim have levy a fine or suffer  judgement in a writ of right until execution sue they be not bar for the year  shall be account after the transmutation of the possession by execution of the  fine or recovery and so it be say in Stowel's case blow come e and the book in  ass pl Henry fol b blow come b Edward fol a be cite that execution upon a  feign recovery against the father can be sue against the issue in tail to the  second point they argue that forasmuch as the land be in lease for year that  the recovery be execute by judgement of law present after the judgement and a  difference be take go land be in the possession of the tenant at the time of  the judgement and when the land be in lease for year and their reason of the  difference be because the recoverors in the one case may sue execution and in  the other case may not and because the recoverors can sue execution the law  will therefore adjudge they in execution present the reason thereof be that  otherwise the lessee during the term may commit waste and will be  dispunishable by the recoveror but if the recoverer may enter or sue execution  then he may prevent it and therefore if a fine sur cognizance de droit so much  be levy of land in possession the cognizee have nothing before entry as it be  agree Edward fol b Henry fol b and Littl in his chapter of attornment fol b  but if a fine sur cognizance de droit so much be levy of a reversion upon a  estate for life or year or of a seignory or any other thing which lie in grant  there the reversion or thing which lie in grant pass present and it be say  that a common recovery be in nature of a common conveyance and so it appear  that a reversion or thing which lie in grant be more easy transfer from one  person to another than a estate of freehold in possession a condition be  executory as well as a judgement but if the feoff can enter there the law will  adjudge he in possession present and therefore it be hold in Henry fol b  Edward fol a Edward that if the condition be collateral and the feoff make a  lease back again for year to the feoff and then the condition be break the law  shall adjudge the feoff in of a present feesimple because he can enter and yet  in that case he may say that forasmuch as he can enter therefore he ought to  make claim yet the law in that case require no claim to be make but in the  case before it be otherwise where no lease for year have be make back again  and the reason may be for the mischief before mention the case of Littleton  fol be likewise cite where Littletonis of opinion that in the case of a  condition the feesimple shall be revested again in the lessor because he can  enter and the law will adjudge he in possession without entry or claim it be  likewise say that those thing which lie in grant as in the case before  remember of the fine they pass to the conusee immediate by the fine levy so in  the case of a common recovery which be now become a common assurance and  conveyance such thing which lie in grant be in the recoveror by the judgement  and therefore there be some opinion in the book in ass pl Edward fol b Edward  fol that if a man have judgement to recover a rend or common or any thing  which lie in grant there the thing so recover be in the recoveror by the  judgement for the book say that the demandant be in seize immediate by the  judgement and they cite the case in Henry fol a which be direct in the point  that the recovery be execute immediate by the judgement the land be in lease  for year so they say first that execution can not be sue against issue in tail  second if it be necessary that execution shall be have in the life of Edward  Shelley that it be execute by the judgement of the law and if the judgement be  execute by operation of the law then the estate tail to his heir male of his  body be in Edward Shelley and consequent the entry of the defendant be lawful  without question but for the argument of the three point which be the great  doubt in the case admit the law in both the say point to be against the  defendant that be to say that execution may be sue against the issue in tail  and that the recovery be not execute in the life of Edward Shelley but after  his death and before the defendant be bear yet the defendant counsel argue  that the defendant entry be lawful the first reason in effect be as follow  when the law prescribe a mean to perfect or settle any right or estate if by  the act of God this mean in some circumstance as in our case in time become  impossible yet no party who be to have receive benefit if the mean have be  with all circumstance execute shall receive any prejudice for not execute it  in such circumstance which become impossible by the act of God if every thing  be perform without laches that the party may perform for it will be  unreasonable that those thing which be inevitable by the act of God which no  industry can avoid nor policy prevent shall be construe to the prejudice of  any person in who there be no laches and therefore the prescript rule of law  be that although a man shall not be tenant by the courtesy without actual  seize yet of a rend or of a advowson if the wife die before the rent-day or  before the avoidance he shall be tenant by the courtesy as it be agree in  Edward a b Henry b for by the act of God it be become impossible for he to  have actual possession also if lessee for the term of another man life be  seize of certain land and the seize take the profit of they now if the  disseisee will recover the mean profit the mean which the law prescribe for  the same be that the tenant for the other man life shall re-enter and then he  shall recover all the mean profit in a action of trespass but if the mean  become impossible by the act of God by the death of the beneficiary and vie so  that he can re-enter then he shall have a action of trespass without any  reentry because the mean be become impossible by the act of God videlicet the  reentry as it be hold in Henry fol e also if a lessee covenant to leave a wood  in as good plight as the wood be at the time of the lease and afterward the  tree be blow down by tempest he be discharge of his covenant because impotent  excuse law as it be hold in Edward a so if the father be feoff with warranty  to he and to his heir and afterward the father feoff his son and heir apparent  with warranty and afterward die now in regard the act of God have destroy the  warranty between the father and the son the son shall vouch as heir although  he be in by purchase because the act of God have determine the warranty  between the father and the son as it be adjudge in Edward b Edward so in this  case when Edward Shelley die the morning of the same day that judgement be  give immediate upon the judgement the recoverors sue forth a to have fac  seisinam so that no laches be in any party but it become impossible by the act  of God that execution can be have in the life of Edward Shelley and therefore  execution be have after his decease shall not prejudice the son bear after who  at that time be in skin matris the second reason be because the use vest in  Richard Shelley although not direct by descent as to have his age or to toll a  entry c yet in the nature and degree of a descent by reason of the original  act begin in the life of the ancestor and their reason in substance be to this  purpose where the heir take any thing which may have vest in the ancestor the  heir shall be in by descent then although it first vest in the heir and never  in the ancestor yet the heir shall take it in the nature and course of a  descent but in the case here the use may have vest in Edward Shelley and if it  have vest in Edward then Richard Shelley will have take it by descent and  therefore Richard in this case ought to take this use in the nature and course  of a descent and therefore if a fine have be levy sur cognizance de droit  so much to Edward Shelley in fee and after and before execution Edward have  die and Richard have enter before Henry be bear now although Richard be the  first who enter yet forasmuch as this fine be levy to his ancestor and his  heir so that he claim by word of limitation and forasmuch as the first and  original act be do in the life of the father and because it may have vest in  the ancestor and if it have vest in the ancestor it have descend for this  cause Richard have take it in course and degree of a descent and the entry of  the defendant have be lawful upon he and yet in that case Richard shall not  have be in direct by descent either to be in ward or to have have his age or  to have toll the entry of one who have right but otherwise it be when the  remainder be limit to the right heir of I S c for there it begin in the son by  name of purchase and never can have vest in the brother as the book in Henry  cite by the other side be agree so in the case of ravishment Edward fol which  be cite on the other side for in these case and all the other which have be  put by the other side the estate vest original by purchase and no beginning be  in the life of the ancestor which can ever have vest in the ancestor and  Edward title age Br if Richard Shelley have a seignory by descent and  afterward the tenancy have escheat and after the son be bear in that case the  son shall enter upon he for although the tenancy first vest in he and never be  in the father yet because the original cause videlicet the seignory be in the  father therefore the son shall enter upon the uncle and chapman case in mr  Plowden's new report fol be cite for there it appear that a covenant be make  with chapman that he will make a lease for year to chapman c and before the  lease be make chapman die and then the lease be make to his executor so that  the term do first commence in the executor yet forasmuch as the covenant make  to the testator be the cause of the make of the estate to the executor for  that reason the term be asset in the executor hand as well as if it have be  make to the testator himself so in our case although the land first vest in  Richard yet it vest by reason of the recovery have against Edward Shelley and  the indenture make by he and therefore Richard shall be in course of descent  as well as the executor in the course of executor further admit that Edward  Shelley have exchange certain land with another and the other have enter into  the land of Edward Shelley but Edward Shelley have die before the entry the  law be clear that the heir of Edward Shelley may enter into the land take in  exchange if he will and so Perkins clear take it fol a then admit that Richard  Shelley have enter into the land take in exchange now he be the first in who  the land vest but because it may have vest in Edward Shelley and because he  come to it by word of limitation the son of the elder son bear afterward shall  enter upon he and yet no right title use nor action descend in this case for  at his election the exchange may have be avoid and so it be if a man seize of  the manor of S covenant with another that when I S shall feoff he of the manor  of d then he will stand seize of the manor of S to the use of the covenantee  and his heir the covenantee die his heir within age I S feoff the covenantor  in this case it be hold in wood case Elizabeth in the court of ward that the  heir shall be adjudge in in course and nature of a descent and yet it be  neither a right title use nor action that descend but only a possibility of a  use which can neither be release nor discharge yet it may if the condition  have be perform have vest in the ancestor and then the heir have claim it by  descent and therefore in that case the heir be not in by purchase but in by  course of descent and admit that in all the case which have be put as in the  case of ravishment and in the case of the remainder c he who may first enter  die before entry and the young son enter and afterward the son of the elder  son be bear now it be clear that the son of the elder son shall divest the  land from the uncle for it may have vest in the ancestor and so to the case  which have be urge by the plaintiff counsel in Henry of the condition the  solicitor and coke say that it may be allow for law if the true sense thereof  be apprehend and therefore if the condition be that the feoff or his heir pay  the sum of or do any act before a day certain that they shall re-enter in that  case if the father die before the day of payment and the daughter to save the  inheritance pay the money or satisfy the condition in these case peradventure  the son shall not divest it for if the daughter have not perform the condition  the land have be utter lose and therefore in that case a good argument may be  make that the daughter may detain the land for who perceive onus  to discern by sense debet just but if the condition be to be perform on the  part of the feoff or break in the life of the feoff then they say the law be  clear otherwise for the heir enter for such condition break shall be in ward  and have his age and no such special reason as in the case next before it be  also ask out of what fountain this use shall arise and who be the mother that  conceive this use and the indenture answer the recovery for the indenture say  that the recovery shall be to the use c then it be say if the recovery be the  mother which conceive this use and the fountain out of which the use rise  forasmuch as this recovery be have in the life of Edward Shelley although the  use sleep and be as embrio in skin matris until execution sue yet the  execution be once have the execution shall respect the recovery and raise the  use which sleep before which use be once awake or raise take its life and  essence from the recovery which be have in the life of Edward Shelley and  thereupon some of the defendant counsel argue in this manner the execution of  every thing which be executory always respect the original act or cause  executory and when the execution be do it have relation to the thing executory  and all make but one act or record although it be perform at several time and  therefore if a by deed indent covenant with b that b shall recover against he  the manor of d within a year next follow and that the recovery and execution  thereupon to be have within the say year shall be have to the recoveror in  tail c and after the recovery be have within the year and the execution be sue  after the year in this case it be clear that although the covenant be not  pursue in time accord to the precise from of it yet the use shall be guide by  the say indenture so in the same case if the same recovery betwixt the same  party of the same land be suffer after the year yet if no other intervenient  agreement be between the party the recovery shall be intend to be to the use  of the indenture for variance in time in such case shall not subvert the  original agreement and contract of the party and it be hold in Edward b that  if the presentment to a church by a usurper be in time of war and the  institution and induction which be but as execution of the presentment be in  time of peace yet it shall be avoid for the law regard the original act cause  origin be means pain if a man who be non compos chin give himself a mortal  wound and before he die hebecomes of sanamemoria and afterward die of the same  wound in this case although he die of soberly memory by reason of his own  proper wound yet because the original cause of his death videlicet the wound  be when he be non compos chin he shall not be felon de see because the death c  have relation to the original act which be the stroke or wound which see  Edward titula coroner and so it be ass coroner if a servant have a intent to  kill his master and before execution of his intent go out of service and be  out of service execute his purpose and kill he who be his master this be petit  treason for the execution do respect the original cause which be the malice  conceive when he be servant and yet if the law shall adjudge and make  construction accord to the several time then it will be plain it will be no  petit treason so in our case the execution of the use relate to the indenture  and recovery it be also ask when after that the execution be have so that now  the use which before sleep be raise what thing be it that govern and direct  this use and it be to be answer the indenture and what be their direction that  the say Edward Shelley shall have it and after his death the heir male of his  body so that the indenture direct the use to the heir male of his body by way  of limitation of estate and not by way of purchase and from thence this reason  be collect the indenture direct and govern the manner and quality of the use  but the indenture direct that the heir male of the body of Edward Shelley  shall take it by limitation of estate and not by name of purchase and  therefore Richard ought to have it as heir by limitation of estate and not by  name of purchase for when the execution be have the indenture immediate guide  the use to Richard because he be at that time heir male of the body of Edward  Shelley which Richard be not heir after the birth of the son of the elder son  further it be say admit all the matter before will not serve for the defendant  which the defendant counselheldstrongly it will yet it be to be consider in  this case that the estate vest in Richard by way of limitation of use and not  by any conveyance by the commonlaw in possession and therefore admit our case  have be before the make of the stat of Henry and that the recoverors have sue  execution after the death of Edward and before the son of the elder son be  bear and then the son of the elder son have be bear in that case it be ask  which of they shall have the subpoena and the defendant counsel conceive that  the son of the elder son although the use do first attach in the uncle shall  have the subpoena for if the intent of Edward Shelley may appear to the court  that the son of the elder son shall have this use then that be the rule by  which the use be to be guide and direct for at the commonlaw the intent of the  party be the direction of the use for they be only determinable and to be  adjudge by the chancellor who be judge of equity and that in chancery which be  a court of conscience and as Bracton say fol nothing tam agreed be  physical scientist justice how will domini willing remember to sew in other  transfer raft to have and therefore in proof that use be direct by the intent  and meaning of the party diverse case be cite Henry distinction subpoena  Fitzherbert Statham conscience a man be beneficiary and use and have a only  daughter declare his intent and meaning to the feoff that after his decease  his daughter shall have his land and therefore a question arise in chancery  whether he may revoke this limitation of the use make to his daughter and in  argue this case fortescue hold that if beneficiary and use have issue a  daughter and be sick declare his intent to his feoff that his daughter shall  have his land after his decease and after he recover his health and have issue  a son now he say it be good conscience that the son shall have the subpoena  for he be his heir note the reason of fortescue because he be his heir and  there fortescue say that  knowledge to say a con scio quasi simul to know come  a god that be to say the will of God as near as reason will we find likewise  in diverse other case in our book that the intent of the party be the  direction of use by a considerable and favourable construction and therefore  it be hold in Henry fol b if a man be seize of land on the part of his mother  and make a feoff in fee reserve rend to he and his heir in that case by the  rule of commonlaw as Littleton say the rend shall go to the heir on the part  of the father but if a man be seize of land on the part of the mother and make  a feoff in fee to the use of he and his heir the book be direct agree in  Edward fol b that this use shall not go to the heir at the commonlaw but  forasmuch as the land and live move from the part of the mother therefore in  equity the use which be nothing but a trust and confidence shall go also to  the heir on the part of the mother Littleton likewise say that a man shall not  have a feesimple by a feoff or grant without these word his heir and yet the  law be plain that if a man have before the statute of Henry bargain and sell  his land for money without these word his heir the bargainee have a feesimple  and the reason be because by the commonlaw nothing pass from the bargainor but  a use which be guide by the intent of the party which be to convey the land  whole to the bargainee and forasmuch as the law intend that the bargainee pay  the very valve of the land therefore in equity and accord to the meaning of  the party the bargainee have the feesimple without these word his heir as it  be hold in Henry fol Edward Br estate Edward and in the time of Henry Br  conscience so in our case although the use first vest in the uncle admit the  case to be before the stat of Henry yet see that the intent of Edward Shelley  be to advance the son of his elder son and because in equity the general heir  be to be favour therefore the son after bear shall have the subpoena moreover  the rule in law be that if a estate be limit to two the one capable and the  other not capable he who be capable shall take the whole as the case be agree  in Edward fol and Edward if a man give land to one birthright son if he have  no son the father take the whole and so it be lib ass tempore Edward tail if a  man give land to a man and to such a woman as shall be his wife the man take  the whole but if a man make a feoff in fee to the use of himself and his wife  that shall be and afterward he marry his wife shall take joint with he as it  be hold in the lord paulet's case Elizabeth dyer notwithstanding the whole  vest at first in the husband also the rule of law be that a remainder can  stand without a particular estate and yet the book be agree in Henry fol a  that if a man make a feoff in fee to the use of one for life and after to the  use of another in fee although the particular tenant refuse yet the remainder  be good and so it be say in the book in the case of a devise as if a man  devise land for life the remainder in fee and the tenant for life refuse yet  the remainder be good and so note that the limitation in use and estate give  by devise resemble one another so the judge there take the construction of  devise and of estate convey in use to be all one videlicet accord to the  meaning of the party and admit in the case here the land have be of the custom  of gavelkind and upon that it have be ask if Edward Shelley have have sundry  other son shall the elder son only have have the whole use sure he only shall  not have it but all equal and yet if he have take it by purchase then the  elder son only ought to have it now the intent of Edward Shelley be to be  prove by diverse circumstance apparent in the record first if Edward Shelley  have intend to have give it to the uncle he never will have give it he by so  general a name as heir male for if the recovery have be execute in the life of  Edward Shelley as be full intend then it have be in manner agree that Richard  Shelley can not have have the land for the heir male be word of limitation or  if the son of the elder son have be bear in the life of Edward Shelley which  be impossible for Edward Shelley to have know the contrary for the defendant  be bear within one month after his death then out of all question the uncle  can never have have it and therefore except you will ground uponabsurdities  the one that Edward Shelley know that he shall die before the recovery execute  the other that he shall die before the birth of the son of his elder son which  none can know but God it must be grant that the intent of Edward Shelley be to  advance his elder son and by no mean to disinherit he also at the time of his  death Richard Shelley be eighteen year old and therefore if he intend to  advance Richard he will not have give his land to his trusty friend mr Carill  and other for twenty four year but without doubt he intend that the son of his  old son shall have it and the same move he to devise such a term which may be  end when the defendant shall be of fit age to receive and govern his live the  reason why the say Edward Shelley suffer the say recovery be as it seem  because marry daughter of his elder son nam in the special verdict will have  inherit and if the wife of his elder son have be deliver of a daughter then  have the land go out of his name and therefore for the continuance of the land  in his name and family he suffer the say recovery and therefore it be by way  of limitation of use the son of the elder son ought to have it and especial  inasmuch as no rule in law in our case be impugn but it stand well as have be  prove before with the rule of the commonlaw and one of the defendant counsel  say that at the commonlaw a use be but a trust and confidence and as be say in  Henry rest only in privity betwixt those who have notice thereof and forasmuch  as the conscience of the feoff and other who be trust become too large and  will not perform the confidence repose in they but make feoff upon diverse  consideration to stranger not have notice of the use and by diverse other  fraudulent device do deceive and defraud those to who use they be seize  therefore first be the stat of Richard make by which authority be give to the  beneficiary and use to enter and make a feoff but after that statute the feoff  oftentimes do prevent the feoff of beneficiary and use by subtle and cunning  practice yet defraud the beneficiary and use and not discharge the trust  repose in they and therefore to take away all the power and mean of deceive by  the feoff the stat of Henry be make and therefore it be hold for the better  opinion at this day that for the raise of future use after the stat the  regress of the feoff be not requisite and that they have not power to bar  these future use for the statute have transfer all the estate out of they but  he say in our case if the sue of the execution after the death of Edward  Shelley and before the birth of the son of the elder son shall make the uncle  have the land then it will rest in the disposition and pleasure of the  recoverors who they will make to inherit for then it will follow that if they  enter and execute the recovery before the birth of the son of the elder son  then the uncle shall have it and if they will not enter until after the birth  of the son of the elder son then without all question the son of the elder son  shall have the land so that by this construction the matter will lie in the  breast of the recoverer who be but instrument and not person in any manner  trust to settle the inheritance in who they please which be never any part of  the meaning of Edward Shelley and which be very absurd in reason and it will  be mischievous that the inheritance of any man shall be at the appointment and  discretion of two stranger who be nam only as instrument and never in any  manner trust and it will be a great mischief than any be at the commonlaw also  as this case be if the sheriff have execute the recovery upon the day on which  the writ of execution be sue forth then it have be evident that the son of the  elder son shall have have the land for then have execution in judgement of law  be in the life of Edward Shelley but by the construction which have be make it  will likewise be in the power of the sheriff to settle the inheritance in who  he please for if he have execute the recovery the same day as may have be do  or after the birth of the son of the elder son then the son of the elder son  shall have have the land but to make one out of tune dato not limited  to follow and therefore for the avoidance of these mischief and absurdity the  law will adjudge Richard in the land in course and nature of a descent and  then all the mischief and absurdity be avoid and no ground or rule in the law  be thwart and note the stat of Henry be that beneficiary and use shall have  the possession to all intent construction and purpose in law and of and in  such like estate as they have or ought to have in the use and that he shall  have the possession after such quality manner from and condition as they have  before have or have have the use trust or confidence so if the uncle before  the statute have have the use trust or confidence in nature and course of a  descent yet the son of the elder son shall divest the use and have the  subpoena and because the statute execute the possession after such quality  manner from and condition as the use trust or confidence be in they for these  cause the possession execute by the statute ought to be subject to the entry  of the son of the elder son and therefore if beneficiary and use have issue a  daughter and die before the stat of Henry his wife be great with child with a  son and before the birth of the son the statute have be make so that the  possession have first vest by force of the statute in the daughter yet the son  bear after may enter upon her for the daughter have the possession in the same  quality and condition as she have the use but she have the use by descent and  subject to be divest by the birth of the son and therefore he ought to have  the possession by the statute in the same quality and degree and that be in  the nature and course of descent but in the case of descent the son after bear  shall enter upon the daughter and therefore the son in this case shall enter  upon the daughter and the like construction upon the like case have be make  before this time therefore justice mountagu in Wimbishe's case and Plowden in  Plowden's command fol b hold that if a woman have a jointure make her by her  husband in tail and have issue a daughter be great with child with a son and  before the birth of the son she discontinue with warranty now the stat of  Henry say that such person to who the title after the death of such wife do  appertain shall enter into the land and shall possess and enjoy the same  accord to their title to the same as if no such discontinuance have be make  and therefore he hold clear that although the daughter after such  discontinuance first enter yet the son bear after shall enter upon her by  reason of the word of the stat of Henry for the word be that she ought to  enjoy the same accord to her title but her title be in tail and therefore  after the birth of the son he be next heir in tail the title of the tail shall  be devolve from her to the son so in our case the stat of Henry say that  beneficiary and use shall have the possession in the same quality manner from  and condition as he have the use and therefore if a use be limit before the  statute to John S and jane at gap and to their heir and afterward they  intermarry and after the statute be make by which the possession be execute to  they and their heir during the coverture yet they shall not have a divide  estate but the like moieties as they have in the use so if beneficiary and use  be of certain land hold by priority and of other land by posteriority and  after the statute be make by which execution be make of the possession of both  at the same time yet he shall have the possession of both in the same quality  as he have the use and all that by the express word of the statute and it be  to be note that the stat of Henry do not speak only of use but also of trust  and confidence so that although no use rise in the time of the life of Edward  Shelley yet there be a trust and confidence express in his life and therefore  when the use be once raise it ought to be vest accord to the trust and  confidence which Edward Shelley intend and declare by the indenture last the  defendant counsel argue that the uncle can not have the land as a purchaser  admit the remainder have be limit to the right heir male of the body of Edward  Shelley in as much as the old son of Edward Shelley have issue marry his  daughter who be yet alive as appear by the record and who be heir to Edward  Shelley it have be say that although marry at the time of the death of Edward  Shelley be heir general yet the say Richard be at that time heir male of the  body of Edward Shelley and therefore he may as special heir male of the body  of Edward Shelley take the remainder although marry be heir general and  therefore it have be say that if land have be give to Edward Shelley and to  the heir male of his body lawful beget that in that case after his death  Richard Shelley as heir male per form gift shall inherit although the daughter  of the elder son be general heir to Edward Shelley to that they answer and  take a difference when the heir male of the body claim by descent and when he  claim by purchase for in descent the law be as have be allege but it be  otherwise in case of purchase this difference be prove by the case in Henry Br  do if a man make a gift in tail of land in gavelkind to a man and his heir  male of his body lawful beget and have issue four son in this case all the son  shall inherit but if a lease for life be make of land in gavelkind the  remainder to the right heir of I S and I S die have issue four son in this  case the old son only shall have the remainder for there can be but one right  heir in the case of purchase and so be Ellerker's opinion express in Henry fol  a if a man make a lease for life the remainder to the right heir female of the  body of I S and I S have issue a son and a daughter and die in this case the  daughter shall not take the remainder for she be not heir female to take by  purchase and yet it be plain that if a gift in tail have be make to I S  himself and to the heir female of his body and I S die have issue a son and  daughter the daughter shall have have the land by descent also in Henry Br do  it appear that the lord Hussey make a feoff in fee to the use of whether   his  wife for life and after to the use of the heir of his body and after the lord  Hussey be attaint of treason and although brook have not express the judgement  yet it be say it be adjudge that the right heir of his body can not as  purchaser take the remainder because he be not heir of his body to take it by  purchase by reason of the attainder of his father and yet before the stat of  Henry if tenant in tail have commit high treason the land have descend and in  brook report aforesaid it appear that hare the master of the roll take the  difference between a gift in possession to a man and to his heir female of his  body and a lease for his life the remainder to the right heir female of his  body for in case of a remainder as he say she ought to be heir indeed or else  she can never claim it by purchase so it appear by these authority that in  case of purchase the heir male of the body ought to be heir indeed and  forasmuch as in our case the uncle be not heir male for a man can have two  heir to claim by purchase therefore as purchaser the uncle can claim it but it  have be say that the statute de gift conditional aid and help the heir male of  the body to take for that the will of the donor appear that the heir male of  his body shall have the land and the statute say quoth will a giver secundum  form in paper  gift Himself manifest to press out de the other to watch in  answer of which one of the defendant counsel declare the reason of the other  case and authority which have be cite and of the difference which be take  before and therefore he say that the statute de gift conditional do not help  this case mr Littleton in his chapter of estate tail say that every gift in  tail within the statute de gift conditional before themaking of that statute  be a feesimple at the commonlaw and therefore he put the case before the  statute de gift conditional and examine if the same have be a feesimple  conditional before the say statute for otherwise it can be a estate in  fee-tail by the statute for he say that the statute de gift conditional be a  nurse and no mother of estate of inheritance tail and that it preserve the  estate of inheritance in fee-tail but do not beget or procreate any estate  tail which be not feesimple conditional before and therefore he take the law  to be clear that if a man give land to a man seed his or to a man book n'est  de corpore or offspring n'est or exit n'est or pveris n'est de corpore in  these case the donee have no estate in fee-tail but only a estate for term of  life for if such gift have be make before the statute they have be no  feesimples conditional and therefore by mr Littleton rule no estate tail by  the statute de gift conditional for the statute create no new inheritance  which be no inheritance at the commonlaw but only nurse and preserve those  which be estate of inheritance at the commonlaw and therefore the law be take  in the case of Martin Hastings of Norfolk for the manor of elsing and where a  estate be make to one of his ancestor and to the issue male of his body that  in that case he have but a estate for life and so it be hold by sir Roger  manwood then one of the justice of the common plea clear in argument of  Clatch's case year  Elizabeth and therefore he examine the case here before  the say statute and he take it without question that if a lease have be make  for life the remainder to the heir male of the body of I S that in that case  if I S have issue two son and the old son have issue a daughter die in the  life of I S and then I S have die that in that case the young son of I S after  his death can take this feesimple conditional by the commonlaw for he be not  heir male of the body to take this feesimple by purchase for first he ought to  be heir and second he ought to be heir male and in that case if I S have be  attaint of treason or felony the heir male of his body can never have take the  remainder for he be not heir which may be the reason of the lord Hussey case  before cite and it be hold in Edward distinction variance that where a man  make a gift to the husband and wife and to the heir of the body of the husband  and if the husband and wife die without issue of their two body that then it  shall remain over in that case although the will of the donor appear that the  wife shall be also donee in special tail yet forasmuch as by the order of the  commonlaw she can not have a estate of feesimple conditional for that cause  she can not have a estate tail by the statute but in the say case where land  be give to a man and the heir female of his body here be a estate of  inheritance vest in the donee which estate of in heritance the statute de gift  conditional direct to the heir female by descent although there be a issue  male and as to what have be object that forasmuch as the limitation be to the  heir male of the body of Edward Shelley and of the heir male of the body of  the heir male lawful beget that the heir male of the body of Edward Shelley  shall be purchaser for otherwise the subsequent word will be void the  defendant counsel answer that it be a rule in law when the ancestor by any  gift or conveyance take a estate of freehold and in the same gift or  conveyance a estate be limit either mediate or immediate to his heir in fee or  in tail that always in such case the heir be word of limitation of the estate  and not word of purchase and that appear in Edward fol a b in the provost of  beverley case in Edward fol d Edward b Edward fol a and in diverse other book  so inasmuch as in this case Edward Shelley take a estate of freehold and after  a estate be limit to his heir male of his body the heir male of his body must  of necessity take by descent and can be purchaser otherwise be it where a  estate for year be limit to the ancestor the remainder to another for life the  remainder to the right heir of the lessee for year there his heir be purchaser  or if the remainder be limit to the heir in the singular number upon a lease  for life there the heir take a estate for term of life by purchase and if it  shall be admit that in regard of the say subsequent word the right heir male  shall have by purchase to they and the heir male of their body then a violence  will be offer as well to the word as to the meaning of the party for if the  heir male of the body of Edward Shelley shall take as purchaser then all the  other issue male of the body of Edward Shelley will be exclude to take any  thing by the limitation and it will be against the express limitation of the  party for the limitation be to the use of the heir male of the body of Edward  Shelley and of the heir male of their body beget and for default of such issue  to diverse other person in remainder so if Richard Shelley be the heir male of  the body of Edward Shelley at the time of his death shall take by purchase  then the heir male of the body of Richard Shelley only will be inheritable and  no other of the son of Edward Shelley nor their heir male and consequent if  Richard Shelley shall die without issue male the land will remain over to  stranger and all the other son of Edward Shelley which he then have and may  afterward have and their issue will be utter disinherit because the word be in  the plural number heir male of the body of Edward Shelley the former  construction will be against the very letter of the indenture for by that mean  the plural number will be reduce to the singular number that be to say to one  heir male of the body of Edward Shelley only and forasmuch as the first word  videlicet heir male of the body of Edward Shelley include the subsequent word  videlicet the heir male of their body for every heir male beget of the body of  the heir male of Edward Shelley be in construction of law a heir male of the  body of Edward Shelley himself for this reason the subsequent word be word  declaratory and do not restrain the former word as in the case of Littleton if  a man make a feoff in fee ita quoth the feoff shall do such a act in that case  Littleton say it be common use in such case to have also these word and if the  act be not do it shall be lawful for the feoff to re-enter which he say be  more than be necessary for the first word be sufficient in law and include  they yet he say they be well put in to declare and express the law to  lay-people and last in this case if Richard Shelley shall not be in course and  nature of a descent then he can not take at all for when a estate be make to a  man and after in the same deed to limit the quality of the estate a further  limitation be make to his heir or to the heir of his body in all these case  his heir or the heir of his body shall never take as purchaser but in this  case these word heir male of the body of Edward Shelley be word of limitation  and therefore the heir male of the body can take as a purchaser and in proof  of the first proposition it be say that this be the reason of the book in ass  pl and of mr Littleton case fol that if a man grant a reversion or a seignory  by deed to I S and his heir if the grantee die before attornment the  attornment to the heir be void for if the attornment shall be good then the  heir will be in as a purchaser where by the grant and meaning of the party  these word his heir be word of limitation to limit the estate of the grantee  himself and so it be hold in nichol case in blow come fol that if a man lease  land to a man for life and if the lessor die without heir of his body that  then the lessee shall have the land to he and to his heir in that case if  lessee for life die and then the lessor die without heir of his body the heir  of the lessee shall not have the land as it be hold clear cause how above and  so the law be clear as it be common agree in our book if two man exchange land  in feesimple or fee-tail if both the party die before the exchange be execute  of each part the exchange be void for if the heir shall enter they will be in  as purchaser by force of the word which be word of limitation of the estate  and not of purchase and upon the same reason be brett and Rigden's case  adjudge in blow come fol a strong case than this case be for a man devise land  to another and to his heir and the devisee die in the life of the devisor and  then the devisor die and it be adjudge that the heir shall not take by the  devise for in that case the heir be not nam as word of purchase but only to  express and limit the estate which the devisee shall have for without the word  heir the devisee can not have the feesimple and the heir be nam only to convey  the land in feesimple and not to make any other to be purchaser than the first  devisee so in our case the heir male of the body of Edward Shelley be nam only  to give Edward Shelley a estate tail and not to make any other purchaser than  Edward Shelley only and without those word he can not have have a estate tail  and therefore the uncle in our case can claim the land as a mere purchaser but  if he take it in any sort he shall take it in nature and course of a descent  and therefore quacunq way data the uncle can have the land and if he take it  in nature and course of a descent for as a purchaser he can take then the  elder son shall enter upon he and so quacunq way data the son of the elder son  ought to have the land and therefore to conclude first no execution can be sue  against the issue in tail because no execution be sue in the life of Edward  Shelley second admit execution may have be sue against the issue in tail and  that execution be requisite to be have in the life of Edward Shelley inasmuch  as the land be in lease for year that the reversion be immediate vest in the  recoveror by the judgement three admit execution may be sue against the issue  in tail and that the recovery be not execute till after the death of Edward  Shelley yet first forasmuch as it be impossible by the act of God that  execution shall be sue in the life of Edward Shelley second that the indenture  guide the use and direct it to the heir male of the body of Edward Shelley by  word of limitation three that the use and estate do not commence original in  the uncle as a mere purchaser but first vest in the uncle by force of the  indenture make by Edward Shelley and the recovery have against he and may have  vest in Edward Shelley and if it have be vest in Edward Shelley then without  doubt Richard Shelley have take by descent fourthly that the estate be convey  by way of limitation of use which be always direct by the intent of the party  five that it will be absurd and mischievous to adjudge the whole inheritance  to be at the disposal of the recoverors or of the sheriff who never be trust  and last that Richard the uncle ought either to claim in nature or course of  descent and then no question but the entry of the defendant be lawful or  otherwise mere by purchase which by the rule of law and for the reason  aforesaid he can and therefore they conclude that the entry of Henry Shelley  the defendant be lawful and that judgement ought to be give against the  plaintiff that he shall take nothing by his bill after the say case have be  open and at large argue at three several day by the counsel of each side in  the king bench the queen hear thereof for such be the rareness and difficulty  of the case be of importance that it be general know of her gracious  disposition to prevent long tedious and Chargeable suit between party so near  in blood which will be the ruin of both be gentleman of a good and ancient  family direct her gracious letter to sir Thomas Bromley knight lord chancellor  of England who be of great and profound knowledge and judgement in the law  thereby require he to assemble all the justice of England before he and upon  conference have between themselves touch the say question to give their  resolution and judgement thereof and thereupon the lord chancellor in easter  term in the d year of her reign call before he at his house call York house  sir Christopher Wray knight lord chief justice of England and all his  companion justice of the queen bench sir James dyer knight lord chief justice  of the court of common plea and all his companion justice of the same court  and sir Roger manwood knight lord chief baron of the exchequer and the baron  of the exchequer before who the question aforesaid be move and short argue by  sergeant Fenner on the plaintiff part and by one on the defendant part at  which time the lord chancellor be of opinion for the defendant and open  declare his opinion before all the justice that upon the three question the  law be for the defendant and therefore the defendant entry upon the uncle be  lawful but the say question be not resolve at that time the say justice desire  time to consider of the question and eight or nine day after in the same term  all the say justice and baron meet together in serjeant's-inn in fleet street  for the resolution of the say case and there the case be again short argue by  they after which argument the justice at that time do confer among themselves  and take further time to consider of the say question in the next vacation  till the beginning of Trinity term then next follow and accord in the  beginning of Trinity term after great study and consideration of the say  record of the special verdict all the say justice and baron meet again in  sergeant inn in fleet street at which time upon conference among themselves  all the justice of England the lord chief baron and the baron of the exchequer  except one of the puisne justice of the court of common plea agree that the  defendant entry upon the say Richard the uncle be lawful and four or five day  after their last meeting one of the defendant counsel come to the bar in the  queen bench and move the justice to know their resolution in the say case for  their resolution be not before know to the defendant nor to his counsel and  sir Christopher Wray knight lord chief justice answer that they be resolve and  thereupon ask the plaintiff counsel be then at the bar if they can say any  more on the plaintiff part who answer that they have say as much as they can  and also demand of the defendant counsel if they have any new matter to say  for the defendant who say no and then the say chief justice give judgement  that the plaintiff shall take nothing by his bill and because the counsel of  both side who be present be desirous to know upon which of the say point their  resolution do depend the say chief justice open declare that as to the first  point the better and great part of all the justice and baron hold that  execution may be sue against the issue in tail because the right of the estate  tail be bind by the judgement against the tenant in tail and the judgement  over to have in valve and that in favour of common recovery which be the  common assurance of the land and as to the second point they be all agree that  the reversion be not in the recoverors immediate by the judgement but he say  that all the justice of England and baron of the exchequer except one of the  justice of the common plea be agree as to the three point that the uncle be in  in course and nature of a descent although he shall not have his age nor be in  ward c first because the original act videlicet the recovery out of which all  the use and estate have their essence be have in the life of Edward Shelley to  which the execution after have a retrospect second because the use and  possession may have vest in Edward Shelley if execution have be sue in his  life three the recoverors by their entry nor the sheriff by do of execution  can not make who they please inherit fourthly because the uncle claim the use  by force of the recovery and of the indenture by word of limitation and not of  purchase these be as the chief justice say the principal reason of their  judgement and it be resolve by they all that the recovery notwithstanding the  death of Edward Shelley in the morning between the hour of five and six on the  same day be good enough and so it be resolve by sir Thomas Bromley knight lord  chancellor of England sir Christopher Wray knight lord chief justice of  England sir James dyer knight lord chief justice of the court of common plea  sir Roger manwood knight lord chief baron of the exchequer sir Thomas gawdy  knight one of the justice of her highness bench and by all the justice of the  queen bench and by all the justice save one of the common plea and by all the  baron of the exchequer that the right of the defendant be good and his entry  lawful and judgement be give accord