a report of a judgement give in the common bench in easter term in the that  year of the reign of queen Elizabeth upon a special verdict give in a ejection  strong bring by thomas eyston plaintiff against richard stud defendant and the  record be as follow Whiteley easter term Elizabeth rot Suff declaration same  precedent raze Entr b pl otherwise as appear in the term of the holy Trinity  in the that year of the reign of the lady the queen now roll it be contain  thus Suff videlicet Richard Studd late of Ipswich in the county aforesaid  cooper be attach to answer Thomas eyston of a plea wherefore with force and  arm the moiety of one message with the appurtenance in Ipswich which John  Latton gentleman to the aforesaid Thomas demise for a term which be not yet  pass be enter and he from his farm aforesaid eject and other wrong to he do to  the great damage of the say Thomas and against the peace of the say lady the  queen now c and whereupon the same Thomas by William Nelson his attorney  complain that whereas the aforesaid John the that day of may in the that year  of the reign of the lady the queen now at Ipswich demise to the aforesaid  Thomas the aforesaid moiety with the appurtenance to have and to hold the same  moiety with the appurtenance to the aforesaid Thomas eyston and his assign  from the d day of may in the year abovesaid unto the end and term of twenty  one year then next follow and full to be complete and end by virtue of which  say demise the same Thomas eyston be of the moiety aforesaid with the  appurtenance possess Plowden and he be so thereof possess the aforesaid  Richard the that day of may in the that year abovesaid with force and arm c  the moiety aforesaid with the appurtenance which the aforesaid John Latton to  the aforesaid Thomas eyston in form aforesaid demise for a term which be not  yet pass enter and he from his farm aforesaid eject and other wrong c to the  great damage c and against the peace c wherefore he say that he be damnified  and have damage to the value of pound and therefore he produce the suit c  Plowden er p not guilty and the aforesaid Richard by Thomas Whetcroft his  attorney come and defend the force and injury when c and say that he be not  guilty of the trespass and ejectment aforesaid as the aforesaid Thomas above  against he complain and of this he put himself upon the country and the  aforesaid Thomas likewise therefore the sheriff be command that he cause to  come here from the day of the holy Trinity in three week twelve c by who c and  who neither c to recognize c because as well c at which day here come the  party c and the sheriff have not send the writ therefore the sheriff be  command as before that he cause to come here on the octave of saint Michael  twelve c to recognize in form aforesaid c afterward the process between the  party aforesaid in the plea aforesaid be continue by the jury thereof between  they be respite until this day videlicet from the day of easter in one mouth  then next follow and now here at this day come as well the aforesaid Thomas  eyston as the aforesaid Richard by their atorneys aforesaid and the juror  thereupon impanel be call likewise come who to say the truth in the premise be  choose try and swear say upon their oath that before the aforesaid time of the  trespass and ejectment aforesaid above suppose to be do one William Latton  gentleman and Margaret his wife be seize of the moiety aforesaid with the  appurtenance among other thing in their demesne as of feetail videlicet to the  aforesaid Margaret and to the heir of her body lawful beget in right of the  aforesaid Margaret and they be so seize thereof a certain fine levy in the  court of Lord Edward the six late king of England on the octave of saint  Hillary in the second year of his reign before Edward Montague Burgundy brown  and John hind justice of the say late king and afterward from the day of  easter in fifteen day in the three year of the reign of the same late king  Edward the six there grant and record before the same justice and other  faithful man of the same late king then there present between one Richard  Alexander complainant and the aforesaid William Latton and Margaret  deforceants of the aforesaid moiety with the appurtenance among other thing  whereof a plea of covenant be summon between they in the same court videlicet  that the aforesaid William and Margaret acknowledge the moiety aforesaid with  the appurtenance among other thin S to be the right of the say Richard as they  which the same Richard have of the gift of the aforesaid William and Margaret  and they remit and quitclaim from they the say William and Margaret and the  heir of the say Margaret to the aforesaid Richard and his heir for ever and  further they the same William and Margaret grant for themselves and the heir  of the say Margaret that they will warrant to the aforesaid Richard and to his  heir the moiety aforesaid with the appurtenance among other thing against all  man for ever and for that acknowledgement remise quitclaim warranty fine and  agreement the aforesaid Richard grant to the aforesaid William and Margaret  the aforesaid moiety with the appurtenance among other thing and the same to  they render in the same court to have and to hold to the sauce William and  Margaret and to the heir of the body of the say William and Margaret between  they lawful beget to hold of the chief lord of the fee by the service which to  the aforesaid moiety among other thing in form aforesaid grant belong for ever  and if it shall happen that the same William and Margaret shall die without  heir of their body between they lawful beget then after the death of the say  William and Margaret the aforesaid moiety with the appurtenance among other  thing shall whole remain to the right heir of the say Margaret to hold of the  chief lord of the fee by the service which to the aforesaid moiety with the  appurtenance among other thing belong for ever by virtue of which say fine in  form aforesaid levy the same William and Margaret be of the moiety aforesaid  with the appurtenance among other thing seize in their demesne as of feetail  videlicet to they and to the heir of their body lawful beget the remainder  thereof in form aforesaid belong and they be so seize thereof the same William  and Margaret have issue between they lawful beget one John Latton and the  aforesaid William afterward at Upton in the county of Berks die and the  aforesaid Margaret survive he and hold herself in the aforesaid moiety of the  message aforesaid with the appurtenance among other thing and be thereof sole  seize in her demesne as of feetail by right of survivorship c and she be so  seize thereof the same Margaret afterward Plowden er p at rickmersworth in the  county of Hertford take to husband the aforesaid Richard Alexander by reason  whereof the same Richard and Margaret be of the aforesaid moiety of the  message aforesaid with the appurtenance among other thing seize in their  demesne as of feetail in right of the aforesaid Margaret in manner and form  aforesaid and they be so seize by a certain indenture bear date the saint day  of may in the that year of the reign of the lady the queen now make at London  in the Plowden parish of saint Dunstan in the west in the ware of fleet street  without between the aforesaid Richard Alexander and Margaret his wife of the  one part and one John kettle and John walker of the other part it be covenant  conclude and agree between the same Richard and Margaret and the aforesaid  John and John in manner and form follow that be to say the say Richard and  Margaret covenant and grant to and with the say John kettle and John walker  that they the say Richard and Margaret and their heir before the Feast of all  saint then next follow after the date of the say indenture before the justice  of the lady the queen of common plea at Westminster shall levy a fine with  proclamation in due order and form of law of and in all and singular their  manor land tenement rend reversion service and other their hereditament  whatsoever with the appurtenance free hold within the county of Suffolk  whereof the aforesaid moiety of the message aforesaid with the appurtenance in  the declaration aforesaid above specify be and at the aforesaid time of the  trespass and ejectment aforesaid above suppose to be do be parcel that be to  say of and in the moiety of the manor of pistres osmonds Rendlisham Ipswich  Alverds otherwise saint Peter and Stafferton hall and also of the moiety of  message cottage toss acre of land acre of meadow acre of pasture acre of wood  acre of furze and heath acre of marsh and of pound S rend with their  appurtenance in Ipswich Sutton Chattesham Ramsholt Helmingham oatley Aysh  Rendlisham Eyke Blaxale Ufford Bromeswold Lowdham Balinghoe Butley Orford  Wansden Melton Woodbridge Woodbridge hasten Hasketon Herkstead holbrook Stoke  near Ipswich Westerfield Raydon Groundsborough Delitch Clopton Willisham capel  Arwarton Brawnford Sprowton trimley Nacton and Stoneham to the say John kettle  and John walker and to the heir of the say John kettle for ever only to such  use and use as in the same indenture shall be limit express and declare that  be to say first the say John kettle and John walker and the heir of the say  John kettle shall stand and be seize and the say fine shall be adjudge accept  and deem to be to the proper use and behoof of the say Richard and Margaret  for and during the term of their natural life and of the long liver of they  without impeachment of any waste and after the death of the say Richard and  Margaret then to the use of the say Richard his executor and assign for and  during the term of year then next follow and full to be complete without  impeachment of waste and after the end of the term of the say year then the  say John kettle and John walker and the heir of the say John kettle shall  stand and be seize and the say fine shall be adjudge and accept of for and  concern all the say moiety of the say manor call Ipswich Alverds otherwise  saint Peter with the appurtenance whereof the moiety of the aforesaid message  with the appurtenance be parcel and of all and singular the say message land  tenement and hereditament with their appurtenance situate lie and be within  the town parish and hamlet of Herkstead holbrook Ipswich Stoke near Ipswich  Westerfield Raydon Groundsborough Delitch Clopton Willisham capel Arwarton  Brawnford Sprowton trimley Nacton Stoneham oatley and Helmingham to the use  and behoof of Paul Alexander old son of the say Richard and Margaret and of  the heir of the body of the say Paul lawful beget and if the say Paul shall  happen to die without such issue of his body that then the say John kettle and  John walker and the heir of the say John kettle shall stand and be seize of  the last recite premise and the say fine thereof shall be adjudge and accept  to be to the use and behoof of Henry Alexander young son of the say Richard  and Margaret and of the heir male of the say Henry lawful beget and if the say  Henry shall happen to die without such heir then to the use of Augustin  Alexander another son of the say Richard and Margaret and of the heir of his  body lawful beget and if the say Augustin shall happen to die Plowden er p  without such issue then to the use of the aforesaid John Latton son and heir  of the aforesaid William Latton decease of the body of the say Margaret beget  and of the heir male of his body lawful beget and if the say John shall happen  to die without such issue then to the use and behoof of the say Richard and  Margaret and of the heir male of the body of the say Richard and Margaret  lawful beget and for default of such issue then to the only use and behoof of  the right heir of the say Margaret for ever and that for all the residue of  all and singular the say manor land tenement hereditament and premise above  specify the say John kettle and John walker and the heir of the say John  kettle shall stand and be seize and the say fine thereof shall be adjudge and  accept after the death of the say Richard and Margaret and after the end and  expiration of the say year to the proper use and behoof of the say Augustin  Alexander and of the heir of his body lawful beget and if the say Augustin  shall happen to die without such heir then to the use of the say Henry  Alexander and of the heir of his body lawful beget and if the say Henry shall  die without such heir then to the use of the say Paul Alexander and of the  heir of his body lawful beget and if the say Paul Alexander shall happen to  die without such issue then to the use of the say John Latton son and heir of  the say William Latton of the body of the say Margaret beget and of the heir  male of his body lawful beget and if the say John Plowden shall happen to die  without such issue then to the use and behoof of the say Richard and Margaret  and of the heir male of the body of the say Richard and Margaret lawful beget  and for default of such issue then to the only use and behoof of the right  heir of the say Margaret for ever as by the same indenture more full appear  and afterward in performance execution and accomplishment of the covenant  aforesaid in the aforesaid indenture above specify a certain fine be levy in  the court of the lady the queen now at Westminster on the morrow of the holy  Trinity in the that year of her reign abovesaid before James dyer Anthony  brown Richard Weston and John Welsh justice of the say lady the queen and  afterward on the octave of saint Michael then next follow there grant and  record before the same justice and other liege of the say lady the queen then  there present between the aforesaid John kettle and John walker complainant  and the aforesaid Richard Alexander and Margaret deforceants of the aforesaid  moiety with the appurtenance whereof c among other thing whereof a plea of  covenant be summon between they in the same court videlicet that the aforesaid  Richard and Margaret acknowledge the aforesaid moiety with the appurtenance to  be the right of the say John kettle as that which the same John and John have  of the gift of the aforesaid Richard and Margaret and the same remit and  quitclaim from they the say Richard and Margaret and their heir to the  aforesaid John and John and to the heir of the say John kettle for ever and  further the same Richard and Margaret grant for themselves and the heir of the  say Margaret that they will warrant to the aforesaid John and John and to the  heir of the say John kettle the aforesaid moieties with the appurtenance  against all man forever which say fine in manner and form aforesaid levy by  the aforesaid Richard and Margaret of all the premise in the same fine contain  be to the use and behoof and to the use in the aforesaid indenture above  recite specify and contain and to no other use or intention by reason whereof  and by force of a certain Act in a parliament of Lord Henry the eight late  king of England hold at Westminster in the county of Middlesex the that day of  February in the that year of his reign concern the transfer of use into  possession make and provide the aforesaid Richard and Margaret be seize of the  moieties aforesaid with the appurtenance whereof c in their demesne as of  freehold for term of their life and of the long liver of they without  impeachment of waste the remainder thereof in form aforesaid belong and the  say Richard and Margaret be so seize of the moieties aforesaid with the  appurtenance the remainder thereof inform aforesaid belong the same Richard  and Margaret before the aforesaid time when c videlicet the that day of  September in the that year of the reign of the lady the queen now at Ipswich  aforesaid demise to the aforesaid Richard Studd the aforesaid moiety of the  message aforesaid with the appurtenance to have to he from the Feast of saint  Michael the Archangel from thence next follow for the term of six year from  thence next follow by virtue whereof the same Richard Plowden er p Studd be  thereof possess and he be so thereof possess the aforesaid John Latton suppose  that the aforesaid Richard and Margaret by the acknowledgement and levy of the  fine aforesaid by they in form aforesaid acknowledge and levy have forfeit  their estate of and in the moieties aforesaid with the appurtenance whereof c  by virtue of a certain statute in the that year of Lord Henry the seven late  king of England concern the discontinuance of right and estate into the  aforesaid moiety with the appurtenance in the declaration aforesaid above  specify as son and heir of the body of the aforesaid William and Margaret  between they lawful beget enter and the same moiety to the aforesaid Thomas  eyston in form aforesaid demise by virtue whereof the same Thomas be thereof  possess upon the possession of which say Thomas the aforesaid Richard Studd  reenter and he there out eject and whether the same levy of the fine aforesaid  to the use aforesaid be a cause of forfeiture of the estate of the same  Richard and Margaret of and in the moieties aforesaid with the appurtenance  whereof c or not upon the whole matter aforesaid the same juror be whole  ignorant and they pray the advice and discretion of the court here c and if  upon the whole matter aforesaid it shall seem to the justice here that the  aforesaid Richard and Margaret their estate of and in the moieties aforesaid  with the appurtenance whereof c have forfeit then the same juror say that the  aforesaid Richard Studd be guilty of the trespass and ejectment aforesaid as  the aforesaid Thomas eyston above complain against he and then they assess  damage of the say Thomas by occasion of the trespass and ejectment aforesaid  beside his cost and charge by he about his suit in this behalf expend to S d  and for those cost and charge to S and if upon the whole matter aforesaid it  shall seem to the same justice here that the aforesaid Richard and Margaret  their estate therein have not forfeit then the same juror say that the  aforesaid Richard Studd be not guilty of the trespass and ejectment aforesaid  as the aforesaid Thomas above complain against he and because the justice here  will advice themselves of and upon the premise before they give judgement  thereon day be give to the party aforesaid here until the morrow of the holy  Trinity to hear their judgement thereon because the justice here thereof not  yet c Plowden the case husband and wife seize in fee in right of the wife levy  a fine come Ceo c and the conusee grant and render the land back again to the  husband and wife in special tail remainder to the right heir of the wife they  have issue a son and the husband die and the wife take a second husband and  they two levy a fine in fee to a stranger and take back c and then the son of  the first marriage enter as for a forfeiture by the statute of h cap and  adjudge that his entry be not lawful and that it be no forfeiture within that  statute for in this case the estate of the land original move from the wife  and the jointure be make by the wife to the husband and not by the husband to  the wife and therefore to restrain her from dispose of her own inheritance  after his death will be contrary to reason and be quite foreign to the intent  of the Act and though it be the purchase of the first husband by the first  fine within the letter of the Act yet not be within the purview it shall not  be take within the meaning of the Act S c kelw pl n bendl pl   Litt a Danv Abr  Bac Abr vin Abr title jointure I pl see S p die pl per Plowden Leon Mod vide  cro e pl the case appear by the record to be thus Thomas eyston have bring a  writ of ejection strong against Richard Studd for enter into and eject he out  of one moiety of a message with the appurtenance in Ipswich the that day of  may in the that year of the reign of the lady the queen now which one John  Latton lease to the say Thomas eyston the that day of may in the same that  year for the term of year next ensue and the defendant plead not guilty and  the jury find a special verdict as follow videlicet that before the ejectment  William Latton and Margaret his wife be seize of the say moiety of the say  message with the appurtenance in their demesne as of fee in right of the say  Margaret and they be so seize a fine be levy on the octave of saint Hillary in  the second year Plowden er p of the reign of king Edward between Richard  Alexander complainant and the say William Latton and Margaret his wife  deforceants of the say moiety by which the say William and Margaret  acknowledge the say moiety to be the right of the say Richard Alexander as  that which he have of their gift with warranty of they and the heir of the say  Margaret against all man and the say Richard Alexander grant and render the  say moiety to the say William Latton and Margaret his wife and to the heir of  their body beget the remainder to the right heir of the say Margaret whereby  they be seize in tail with the remainder over to the right heir of the say  Margaret and they be so seize have issue John Latton and William Latton die  and his wife hold herself in and afterward take to husband the say Richard  Alexander whereby they be seize in feetail in right of the say Margaret inform  aforesaid and they be so seize by a fine levy on the morrow of the holy  Trinity in the that year of the reign of the present queen they acknowledge  the say moiet to be the right of one John kettle as that which the say John  kettle and one John walker have of the gift of the say Richard Alexander and  Margaret with warranty of they and of the heir of the say Margaret which fine  be to the use of the say Richard Alexander and Margaret for term of their two  life without impeachment of waste and after their death to the use of the  executor and assign of the say Richard for the term of year without  impeachment of waste and after the expiration of those year to the use of Paul  Alexander son of the say Richard Alexander and Margaret in tail the remainder  in tail to another son the remainder in tail to a three son the remainder to  the right heir of the say Margaret in fee by reason whereof and by force of  the statute of h of use the say Richard Alexander and Margaret be seize of the  say moiety in theirdemesne as of freehold for term of their life the remainder  over in manner and form aforesaid and they be so seize the that day of  September in the that year of the reign of the present queen lease the say  moiety to the say Richard Studd to have and to hold from the Feast of saint  Michael then next follow unto the end of six year from thence next ensue by  reason whereof the say Richard be possess of the say moiety and he be so  possess the say John Latton suppose that the say Richard Alexander and  Margaret by the say fine by they levy in manner and form aforesaid have  forfeit their estate in the say moiety by force of the statute make in the  that year of the reign of king Henry enter into the say moiety as son and heir  of the body of the say William Latton and the say Margaret between they beget  and the same moiety demise to the say Thomas eyston in manner and form  aforesaid by reason whereof the say Thomas eyston be possess upon who  possession the say Richard Studd reenter and eject he and whether or no upon  the whole matter aforesaid the say fine levy to the use aforesaid be a cause  of forfeiture of the estate of the say Richard Alexander and Margaret the say  juror say that they do not know and thereof they pray the advice and  discretion of the court and if upon the whole matter aforesaid it shall appear  to the court that the say Richard Alexander and Margaret have forfeit their  estate in the say moiety then the juror say that the say Richard Studd be  guilty and then they assess damage and if the court shall adjudge otherwise  then they say that the defendant be not guilty and this matter be debate at  the bar but I be not present and therefore what I here report be upon the  credible relation of other and it be hold by the counsel for the plaintiff  that the estate of the say Alexander and his wife be forfeit by the Act of h  cap and that the estatetail of William Latton and Margaret his wife which be  take from Alexander by the first fine be and ought to be consider as the  purchase of the husband for although before the first fine William Latton and  his wife be seize in feesimple in right of the wife so that it shall be  adjudge the land of the wife and not the purchase of the husband yet when they  acknowledge the land to be the right of Richard Alexander the conusee in the  fine thereby the land be out of the wife and it become the land of the conusee  and he be the purchaser of it and it be his own to all intent so that it shall  be subject to such statutesmerchant or staple or to such recognizance as he  have before make and to all other purpose it shall be adjudge the land of the  conusee and the estate which the wife have before be go out of her and vest in  the purchaser videlicet the conusee Plowden er p and when the conusee grant  and render the land which be absolute his own to the husband and wife in tail  now this be a joint estate in they by purchase and who purchase be it sir it  be the purchase of the husband but Plowden perhaps it will be object that it  be the purchase of the wife as well as of the husband most certain it be so  for it be the purchase of they both but nevertheless it be the purchase of the  husband for that which be the purchase of the husband and wife may be call the  purchase of the husband and such purchase be intend by the Act for the Act say  if any woman who have any estate in tail joint with her husband in any land of  the purchase or inheritance of her husband discontinue c so that the Act call  the joint estate which the husband and wife have in tail the purchase of the  husband for the word of the purchase of the husband be not to be intend of  land which he have purchase before the jointure make for the word inheritance  may contain it for as Littleton say a Litt see ante a the land purchase by the  husband may be call the inheritance of the husband as well as the land which  he have by descent and because such purchase be include in the word  inheritance and the Act be in the disjunctive videlicet the inheritance or  purchase the purchase here shall be intend that which first vest in the  husband and wife and be not in the husband before and so it must of necessity  be take for a joint estate which the husband and wife have in tail can come to  they by descent but only by acquisition and every acquisition whatsoever may  be term a purchase so here the estatetail which Richard Alexander give to the  husband and wife be a estate by purchase and the purchase of the husband as if  a stranger for money give to he by the husband give land to the husband and  wife in tail this shall be say a joint estatetail in they in the land of the  purchase of the husband and shall be within the danger of the statute so be it  here and this Act which be make to preserve the right to the heir of the  husband shall be construe most favourable and beneficial for the heir and most  strong against the woman as appear by the case of b ante b Wimbish v Tailbois  where the husband make a feoff to the use of himself and of his wife in tail  and die have issue by the wife and the wife survive he take another husband  and they suffer a feint recovery and there it be the clear opinion of the  court that the issue shall enter and yet the jointure of the wife be not full  within the express letter of the Act for the wife have no joint estatetail  with her husband in any land which be the inheritance or purchase of her  husband but the husband have a estatetail joint with his wife in use which  arise out of land which be once the inheritance of her husband so that there  the judge extend the word of the Act and take the intent of the maker of the  Act most strong in both the say case against the woman and their estate and  most favourable for the preservation of the estate of the heir of their  husband and so here the word of the Act shall be take most strong against the  wife and in restraint of her liberty so that the estatetail here take by the  render shall be call a joint estatetail in the land of the purchase of the  husband and therefore the second fine levy by the wife and her second husband  shall be adjudge a forfeiture of their estate by the Act so that it shall be  lawful for John Latton the lessor be heir in tail to the say William Latton  and Margaret his wife to enter and oust the wife and her second husband from  whence it follow that his lease be lawful and the entry and ejectment of the  defendant be unlawful for which reason judgement ought to be give for the  plaintiff but the counsel for the defendant and the whole court be of opinion  to the contrary for they take it that the c see ante g and the book there cite  c intent of statute more to be regard and pursue than the precise letter of  they for oftentimes thing which be within the word of statute be out of the  purview of they which purview extend no further than the intent of the maker  of the Act and the best way to construe a Act of parliament be accord to the  intent rather than accord to the word and the intent of the statute of h be to  restrain woman who have jointure which proceed original from their husband or  from the ancestor of their husband from disinherit or do other injury to the  heir of their husband but in the principal case there be no jointure make to  the wife by Plowden er p William Latton or by any of his ancestor of any of  their land but on the contrary the wife here have make a jointure to her  husband of the land of the wife which be her inheritance and to this purpose  William Latton and his wife levy the fine to Richard Alexander who grant and  render the land back again to they in tail with the remainder in fee to the  wife so that the foundation of this matter original proceed from the wife and  it be to make a jointure to her husband and to advance he and not to be  advance by he and then to bar her after the death of her husband from dispose  of her inheritance will be contrary to all reason and it have no affinity nor  connection with the matter or intent of the statute of h wherefore a man ought  not to rest upon the letter of a Act nor think that when he have the letter on  his side he have the law on his side in all case d S p more palm vin Abr title  jointure I pl in margin see big on recov d for if a woman be seize of land in  feesimple and she intend to marry and before the marriage she feoff the father  of he who she intend to marry to the intent that after the marriage he shall  give the land back again to her and to he who she intend to marry with  remainder over in tail and afterward they intermarry and then the father give  the land to his say son and to his wife accord to the intent and they have  issue and the husband die and she levy a fine to other use now the wife be  within the word of the statute of h for the land be give to her and to her  husband in tail by the ancestor of the husband and after the death of the  husband she have levy a fine to bar the issue but notwithstanding that she be  within the word of the Act yet she be out of the intent of the Act and  therefore the issue shall not enter for the estatetailwas make by the wife by  circumstance and be derive from her and the father of the husband have the  land to no other intent but to make the estate and to that end and purpose he  be Plowden make use of as a instrument so that the effect of the whole matter  be to make a jointure to the husband out of the land of the wife which  although within the letter of the Act of h yet it be out of the intent of it  and consequent out of the purview and so shall it also be in the principal  case wherefore the court award that the plaintiff shall take nothing by his  writ which judgement be as follow the rest of the record judgement at which  day here come as well the aforesaid Thomas eyston as the aforesaid Richard  Studd by their atorneys aforesaid whereupon the premise be see and by the  justice here more full understand it be consider that the aforesaid Thomas  eyston take nothing by his writ aforesaid but be in mercy for his false claim  therein and that the aforesaid Richard Studd go thereof without day c notam  bene by the reporter from this judgement and the cause of it the reader may  observe a Hardr west Symb pt foe a b ante d per sander a post f a that it be  not the word of the law but the internal sense of it that make the law and our  law like all other consist of two part videlicet of body and soul the letter  of ale law be the body of the law and the sense and reason of the law be the  soul of the law because ratio law be anima law and the law may be resemble to  a nut which have a shell and a kernel within the letter of the law represent  the shell and the sense of it the kernel and as you will be no better for the  nut if you make use only of the shell so you will receive no benefit by the  law if you rely only upon the letter and as the fruit and profit of the nut  lie in ale kernel and not in the shell so the fruit and profit of the law  consist in the sense more than in the letter and it often happen that when you  know the letter you know not the sense for sometime the sense be more confine  and contract than the letter and sometime it be more large and extensive and  equity which in Latin be call knight enlarge or diminish the letter accord to  its discretion which equity be in two way b Arist ethic lib cap Brownl finch  finch Bac Abr ante a see west Symb pt fol b dr Stud lib cap b the one  Aristotle define thus which be touch by Catline chief Plowden er p justice in  stowell case equitas be amendment law generatin to bear who part deficit or as  the passage be passage be explain by Perionius equitas be amendment quaedam  law summon because ab she abesse to some degree near general without exception  comprehensive argument both which definition come to one and the same thing  and this correction of the general word be much use in the law of England c  west Symb pt foe a Bac Abr see ante f and c as when a Act of parliament ordain  that whoever do such a act shall be a felon and shall suffer death yet if a  man of unsound mind or a infant of tender age who have no discretion do the  act they shall not be felon nor shall they be put to death d west Symb pt foe  a finch finch see like case dr Stud lib cap foe ante d and if a statute be  make that all person who shall receive or give meat or drink or other aid to  he that shall do such a act know the same to be do shall be accessary to the  offence and shall be put to death yet if a man commit the act and come to his  own wife who know the same receive he and give he meal and drink she shall not  be accessary to his offence nor a felon for one that be of unsound mind a  infant or a wife be not intend to be include in the general word of the law so  that in these case ale general word of the law be correct and abridge by  equity so the statute e stat west cap Artic sup chart cap e of champerty  prohibit man general from receive land or tenement while the thing be in plea  f m r Fitzherbert champerty h h pl bro champerty f n b d bendl Inst f yet in m  r it be say by the whole court in a writ of champerty that if a man bargain  land before a writ bring against he and after the writ purchase he deliver  seize the writ of champerty do not lie because it shall not be intend that the  bargain be make for such purpose and therefore although it be within the word  of the a et it be out of the purview of the Act and that by equity which be  call by I g dr Stud lib cap g epichaia which often put a exception to ale  generality of the text for some reasonable cause as that be in the case last  mention for when he have bargain and promise the land for a just consideration  before the action bring against he it be his duty to perform it  notwithstanding the action and the statute of h cap which be make to prevent  extortion in sheriff gaoler and their minister ordain that none of they by  colour of their office shall take any thing profit or reward of any person for  a fine fee or ease of the person except for the sheriff d the bailiff who make  the arrest d and the gaoler if the prisoner be commit to his custody d h h h  bro fee deal court h and in h cost the king promoter sue a action of extortion  ground upon this statute against a undersheriff sub pose that he have take d  above the sum limit by ale statute of one who be in his custody and on  demurrer upon evidence it appear to the court that all sheriff of the same  county have use from lime immemorial to have of every prisoner in their  custody upon suspicion of felony when they be acquit d call a barfee and that  the d sit suppose to be take be take of the person name in the count be acquit  of felony as a barfee and there it be say that notwithstanding the party be  acquit yet he remain a prisoner for the judgement be that the court discharge  he pay his fee and therefore he be a prisoner until he have pay his fee and  the say statute take away all prescription for any other fee than those which  be limit in the same statute so that this take of the d be within the word of  the Act and consequent the undersheriff ought to have the punishment inflict  by the Act but the whole court be of opinion to the contrary for they say that  this case be out of the statute notwithstanding it be within the word of the  statute for this sum for a barfee be original grant to the sheriff by the  order and discretion of the court in respect of the labour and charge he have  undergo about the prisoner and of the attendance of himself and his officer  upon they when they be bring to their delivery so that the payment of his fee  stand with reason and good conscience and it be not the intent of the maker of  the Act to take it away from which case it appear that equity or epichaia put  a exception to the generality of the text of the statute law and the statute  of Westminster cap touch wreck of the sea ordain I that where a man Plowden er  p dog or cat escape alive out of the ship such ship or any china within it  shall not be adjudge wreck but the good shall be save and keep by view of the  sheriff coroner or king bailiff and deliver into the hand of Plowden such as  be of the town where the good be find so that if any sue for the good and can  prove that they be this within a year and a day they shall be restore to he  without delay and if not they shall remain to the king and shall be seize by  the sheriff coroner c and be deliver to they of the town who shall answer  before de justice for the wreck which belong to the wing and where wreck  belong to another than to the king the shall have it in like manner and he  that do otherwise and thereof be attaint shall be award to prison and make  fine at the king will and shall yield damage also a Inst Freem keb a now put  ale case that the good in such ship be fresh victual as flesh fresh fish or  apple or orange or such perishable good as can be keep for a year and the if  sheriff sell they and deliver the money arise from the sale of they to the  town to answer for it in this case he have break the word of the Act and  therefore if we shall adjudge accord to the word the sheriff shall be send to  prison and be fine at the will of the king and shall pay damage but oh the  other hand if we follow the sense and meaning of the Act he have do well and  shall not be punish for the meaning of the Act be that such thing as can be  keep for a year without spoil or damage shall be keep so long but if the thing  be so perishable that they can be preserve a whole year nor perhaps two day  often it be not the intent of the maker of the Act that the sheriff shall let  they fall to decay but rather that he shall immediate make the most of they he  can so that although the sheriff have do contrary to the word of the law by  sell the good within a year yet he have not break the law but have punctual  observe it inasmuch as he have observe the intent and meaning of the maker of  the law and I great commend the opinion and discretion of the judge in b t  Edward pl Fitzherbert charge bro tail ante c b Octavian lombards case in  Edward where the say Octavian sue a replevin against one John who have take  his cattle by way of distress for rend of pound grant to he by one Nicholas  who be surmise to be tenant in tail at the lime of the grant and be dead and  ale wife of Octavian be his sister and heir in tail and want to avoid the rend  grant by her brother tenant in tail as be aforesaid and the case be that John  to who the rend be grant have a indefeasible right to the land and have put  the inheritance in dispute a agreement be afterward make between John and  Nicholas that John shall release his right to Nicholas and that Nicholas for  that release shall grant to he a annual rend of pound to be take of the same  tenement with distress which be accord do and for this rend in arrear John  avow and there it be the opinion of the whole court that although Nicholas who  charge the land with the say rend have only a estatetail in it at that time  whereupon John who be the right heir may have enter yet the rend be grant by  ale say agreement in consideration of a release of the other right it be for  the benefit of the issue in tail and therefore the rentcharge shall be levy  against the issue and against every other man so that although the statute de  gift conditional be make to restrain the power of tenant in tail as to  alienation or other charge and ordain that the will of the giver from  henceforth shall be observe so that they to who the land be so give upon  condition shall not have power to alien the land so give but that after their  death it shall remain to the issue of they to who the land be so give or shall  revert to the giver or to his heir if issue fail c and although by the intent  of these word charge and other act of the tenant in tail be restrain as well  as alienation of the land itself yet in that case the judge take it that it be  not the intent of the maker of the Act to restrain the tenant in tail because  the act which he do be for the benefit of the estatetail for whereas it be  defeasible before now by mean of the grant of the rend it become defeasible  from whence it appear that act which injure the estatetail be restrain bythe  statute but not act which tend to the benefit or advantage of the estate as  equity or epichaia show its c palm c and the Act of Edward cap which give  chantry and college to the king give also to he all land and tenement by any  assurance conveyance or otherwise give assign or limit for the find of any  priest to have continuance for ever or with which any priest have be find  within five year before the Act now if the Act be take accord to ale  generality of the letter it give to the king all the house and glebeland of  all parson and vicar and all their parsonage and vicarages which be not the  intent Plowden er p of the maker of the Act and therefore equity or epichaia  make a exception of parsonage and vicarages from the general word of the text  which exception be as strong as if it have be express put in the Act so that  the sage of our law who have have the exposition of our act of parliament have  in these and many other case almost infinite restrain the generality of the  letter of ale law by equity which seem to be a necessary d Hardr d ingredient  in the exposition of all law for as Aristotle say cum de toto noble birth law  to say and to some degree ii in rebus contra general law comprehensive  argument step forth tum very convenient to fall upon ut how part scriptor law  to some degree praetermiseri ac to miss entirely ac semel a speaking id quod  let pass sit to make straight quod etian legislator si to be at to bring to  mind even if jam law to bear and experience show so that no lawmaker can e dr  Stud lib cap foe e foresee all thing which may happen and therefore it be fit  that if there be any defect in the law it shall be reform by equity which be  no part of the law but a f finch finch prece Charles f moral virtue which  correct the law nam to distribute et straight line are to visit et such knight  sive epichaia non law fixed by law be send law fixed by law correction et  justitica sending and Geraldus a Odo who write a commentary upon Aristotle put  this case g see this case put with some little variation ante I e like case dr  Stud lib cap foe g law be in a certain community queen d peregrine mouse  community of climbing capite to punish to touch autem queen d foreigner  innocent to go over per that community audiveru elamorem qubd host contra  community repent irrueru who foreigner promptiores how fellow citizen mouse to  mount et city to ward off salvaveru nunc ergo quid law utrum become void to  withhold as law to say to answer epichaia quod non because contra law natural  be reddere malum pro good nee legislator si preasens to be party in law suit  to say from whence the reader may observe how convenient a thing this equity  be and the wise judge of our law deserve great commendation Plowden for have  make use of it where the word of the law be rigorous for thereby they have  soften the severity of the text and have make the law tolerable a   Litt b Bac  Abr a the other kind of equity differ much from the former and be in a manner  of a guile contrary effect and may well be thus define equitas be a word law  sending effectually cum One res solummode law cage word ut all men alian in  oequali noble birth the same to be on one word and this definition seem  agreeable to that of Bracton which be thus b bract foe a   Litt b west Symb pt  foe b Brownl b equitas be a thing agreement qum in pair cause pair want to  know jura et in all respects bene cooequiparet et to say knight quasi  ffiqualitas so that when the word of a statute enact one thing they enact all  other thing which be in the like degree c stat Edward cap see the book cite  ante h h c as the statute which ordain that in a action of debt against  execution he who come first by distress shall answer be extend by equity to  administrator and such of they as come first by distress shall answer by the  equity of the say statute because are in oequali noble birth and the Act of h  cap give a special assize to he who be seize and oust of his land by force  against the seize and enact that the shall recover against he double damage  and in the book of entry d raze Ent last edit a d foe it appear that the  plaintiff recover by judgement double damage in a assize of nuisance for turn  a watercourse with force to the nuisance of his mill wherein it be find for  the lai tiff as yet there he be not oust of his land nor do he suffer any  seize but only a nuisance to the damage of his freehold videlicet of his mill  whereof he continue seize so that by the equity of the say statute the  plaintiff recover his double damage for the inusance because it be in like  degree with a seize of land e stat Gloucester cap see ante a and the book  there cite e and the statute of Gloucester give a action of waste and the  punishment therein against he that hold for life or for year and by the equity  thereof a man shall have a action of waste against he who hold but a year or  for week for and yet this be out of the be of the Act for he that hold but r  one yea do not hold for Plowden er p year but it be within the intent of the  Act and the worst which enact the one do by equity enact the oilier and so  there be a infinite number of case in our law which be in equal degree with  other provide for by statute and be take by the meaning of those statute and  from hence it appear that there be a great these two equity for the one  abridge the letter the other enlarge it the one diminish it the other amplify  it the one take from the letter the other add to it so that a man ought not to  rest upon the letter only nam who to hang in liberan to hang in made from bark  but he ought to rely upon the sense which be temperate and guide by equity and  therein he reap the fruit of the law for as a nut consist of a shell and a  kernel so every statute consist f see ante a and the book there cite f of the  letter and the sense and as the kernel be the fruit of the nut so the sense be  the fruit of the statute g Hardr keb Bac Abr see h h p c hawk p c g and in  order to form a right judgement when the letter of a statute be restrain and  when enlarge by equity it be a good way when you peruse a statute to suppose  that the lawmaker be present and that you have ask he the question you want to  know touch the equity then you must give yourself such a answer as you imagine  he will have do if he have be present as for example in the case before  mention where the stranger scale the wall and defend the city suppose the  lawmaker to be present with you and in your and put this question to he shall  the stranger be put to death then give yourself the same answer which you  imagine he be a upright and reasonable man will have give and you will find  that he will have say they shall not be put to death so in the case of  glebeland of parson if the lawmaker have be ask whether they intend that the  king shall have all parsonage and vicarages and their glebeland they will  certain have and God forbid and so if the question have be put to they in the  oilier case whether one of the administrator shall answer at the grand  distress they will have answer in this respect they be to be look upon as  executor and therefore when such case happen which be within the letter or out  of the letter of a statute and yet do it direct shall within the plain and  natural purport of the letter but be in some measure to be conceive in a  different idea from that which the text seem to express it be a good way to  put question and give answer to yourself thereupon in the same manner as if  you be actual converse with the maker of such law and by this mean you will  easy find out what be the equity in those case and if the lawmaker will have  follow the equity notwithstanding the word of the law as Aristotle say the  will for the say quod etian legislator si to be at to bring to mind even if  jam law talisset you may safe do the like for while you do no more than the  the lawmaker will have do you do not act contrary to the law but in conformity  to it and so the judge do in the principal case here by follow epichaia and  where the statute of h cap look away clergy from he that steal any horse and  the statute of edward so cap enact that those who be attaint of steal horse  shall not have their but that in all other case of felony person attaint shall  have their clergy I by no mean commend the scrupulosity of the judge in those  time who look the law to be thereupon h that he who steal one horse only shall  have his clergy and therefore procure the Act oh f Edward cap to be make which  oust aim of his clergy who steal one horse only for where the statute speak of  steal horse although it speak in the plural number yet by equity which  consider the intent of the legislature it ought also to comprehend one  singular horse only and that as full as if it have say horse or horse and the  clause in the Act which say that in all other case of felony person attaint  thereof shall have their clergy be to be interpret and intend of other than  those who steal horse or a horse for as the statute of Gloucester which give a  action of toast against he that hold for year in the plural number may be take  to comprehend he who hold but for one year so may the say statute which speak  of horse in the plural number be interpret to comprehend one horse in the  singular number and Plowden if it be say that the law be penal in this case to  this it may be answer that so it be also in the oilier case but equity know no  difference Hardr ante per Whiddon between penal law and other for the intent  which be the only thing regard by equity as may appear to every one who pursue  the method of enquiry by way of question and answer in the manner be re  intimate ought to be follow age take for law as well in penal law as in other  and this meaning of learning be large treat Plowden er p of in the case of  straddle v Morgan ante c before report where the reader will find much matter  upon this head and my advice to the student be that when he conceive any doubt  upon a statute he will have these two equity ready in his mind and pursue the  instruction before give and he will perceive great light and assistance from  they as I have do heretofore