CCICVII cotton case fine levy to use estate tail it be find by special verdict  that Berwich and Tesdel seize of certain land convey the same to sir Thomas  cotton for life the remainder to will cotton birthright son his heir male such  de birthright ad birthright dict Leonard er p William the remainder to the  right heir of the body of sir though cotton and will cotton lawful issue the  remainder to the right heir of sir though cotton will have issue a son bear  here in England go beyond the sea to Antwerp and there continue and his son be  within age in England sir Thomas cotton Leonard levy a fine of all the land  sur conusans de law come Ceo c and afterward by indenture covenant to stand  seize to the use of himself for life and afterward to the use of Robert cotton  his son in fee William die at Antwerp his say son be within age in England sir  though cotton die Robert enter and lease the land for year to sary and the  infant son and heir of William lease the land to one Chewn at will who enter  and oust sary who thereupon bring ejection strong it be here hold by the court  that sir though cotton be tenant for life the remainder to William for term of  his life the remainder to the heir of both their body issue so as unto one  moiety sir Thomas cotton have a estate tail dependent upon the say estate for  life and so the fine levy by he be a bar to the issue of William for a moiety  and as to the other moiety they hold that the say fine be not any bar but that  the party interest at the same time may avoid the fine at any time during his  nonage five year after for will his father be not bind by the statute of h  because at the time of the fine levy he be beyond the sea and although he  never return but die there yet by the equity of the statute his issue shall  have five year after his death to avoid the fine if he be of full age and if  he be within age their during his nonage and five year after at another day  the case be argue and put in this manner videlicet land be give to sir Thomas  cotton for life without impeachment of waste the remainder over to cheny  cotton his old son birthright son heir male of the say cheny such de  birthright son in primogeniture son the remainder to the heir male of the body  of the say cheny for want of such issue the remainder to will cotton his  second son birthright son in primogeniture son the remainder over to the say  sir Thomas and the say William and the heir male of their body lawful beget  cheny cotton die without issue William have issue go beyond the sea sir Thomas  cotton Elizabeth levy a fine with proclamation and afterward William the  father die in Antwerp his son be within age sir Thomas by indenture limit the  use of the fine to himself for life the remainder over to Robert cotton his  three son in tail sir Thomas die but it do not appear at what time William the  son be yet within age enter but non constat when and Elizabeth lease the land  to the defendant at will draw sergeant argue for William cotton and he  conceive that William the father have a estatetail and then the entry of  William the son be congeable for the whole but admit that it be not a  estatetail in William the father for the whole yet be have by the second  remainder a estatetail in the moiety and then his entry good as to one moiety  and then Robert be tenant in common of the other moiety his lessee without a  actual ouster can maintain a ejection strong against the lessee of his  companion and he conceive here be a good estate tail in William cotton by  virtue of the limitation to William birthright son heir male Self guliel such  de birthright son in birthright son c for accord to the statute of west the  will of the donor ought to be observe and here it appear that the intent of  the donor be to create a estatetail although the word of the limitation do not  amount to so much and the estate mention in the statute aforesaid be not rule  for entail but only example as it be say by true e f tail see Robeiges case e  Fitzherbert tail and h land give to a and b of or belonging to a wife he heir  the dawn other heir speech a si dict haeredes de speech a b to go out to go  without heir de see c and that be hold a good entail so a gift to one and his  heir si haeredes de meat svan to have si no one de meat svan to have see  revertor  land and adjudge a good tail so e land give to husband and wife uni  heir de corpore his ligitime procreate uni heir Self heir so much and that be  hol Leonard den a good tail and so he conceive in this case that although the  word of the limitation be not apt to create a estatetail accord to the phrase  and style of the say statute of west yet here the intent of the donor appear  to continue the land in his name and blood for William the son can not take  with his father by his limitation for he be not in a thing naturan and  therefore all shall vest in William the father which see e Fitzherbert Leonard  er p feoff fait now it be to see if upon the limitation to sir Thomas cotton  and William his son by which the remainder be limit to sir Thomas cotton and  William and the heir male of their body issue the say sir Thomas cotton and  will have a joint estatetail in respect that the issue of the body of the son  may be heir of the body of the father and so because they may have one heir  which shall be inheritable to his land it shall be one entire estatetail in  they but he conceive that they be several estatestail and that they be tenant  in common of a estate tail Phil mark dyer land give to the father and son and  to the heir of their two body beget the remainder over in fee the father die  without other issue than the son only and afterward the son die without issue  a stranger abate or if the son have make a discontinuance if he in the  remainder shall have but one or two several formedons be the question and by  sander brook and brown but one formedon and quaere leave of it yet admit that  yet notwithstanding that it may be that they have several estatestail e land  give to a man and his sister and to the heir of their two body issue they have  several estate tail and yet one formedon and see h land give to a man and his  mother or to her daughter in tail here be several entail and here in the  principal case sir Thomas cotton have one moiety in tail expectant upon his  estate for life and therefore as to the moiety of sir Thomas cotton he be bind  by the fine and the other moiety be leave in the soi who may enter for a  forfeiture upon the alienation make by his father as well in the life of the  father as afterward now after this fine levy the entry of William the son by  virtue of his remainder be lawful after the death of sir Thomas although that  William the father be beyond the sea at the time of the fine levy and there  afterward die William the son be within age the word of the statute of h be  other than woman covert or out of this realm c so that they or their heir make  their entry c within five year after they return into this land c so that by  the bare letter of the act will the son have not remedy nor relief by this act  against the fine because that William the father die beyond the sea without  any return into England yet by the equity of the statute he shall have five  year to make his claim although his father never return for if such liberal  construction shall be allow it shall be a great mischief and it shall be a  hard exposition for this statute ought to be take by equity as it appear by  diverse case h my uncle do seize my father and afterward levy a fine with  proclamation my father die and after within five year my uncle die that fine  be no bar to I yet the exception do not help I for I be heir to he that levy  the fine and so privy to it but my title to the land be not as heir to my  uncle but to my father so if a infant after such a fine levy die before his  full age his heir may enter within five year after and yet that case be out of  the letter of the statute and by brown and sander if the disseizee die his  wife enseint with a son the seize levie a fine the son be bear although this  son be not except express by the word because not in a thing naturan at the  time of the fine levy c yet such a infant be within the equity and meaning of  the say statute see the case betwixt stowel and zouch blow Com and by he  Leonard it be hold Elizabeth that a infant bring a formdon within age and  adjudge maintainable although the word of the statute be that they shall take  their action or lawful entry within five year after they come of full age and  be also argue that here when sir Thomas be tenant for life levy a fine which  be a forfeiture he in the remainder be to have five year after the fine levy  in respect of the present forfeiture and also five year after the death of the  tenant for life and that be the case of one some adjudge accord in the common  plea it have be object on the other side that the defendant enter by colour of  the lease at will make to he by William who be a infant that he be a seize as  well to the infant as to the lessor of the plaintiff who have the moiety as  tenant in common with the infant and then when the lessor of the plaintiff  enter upon the defendant and lease to the plaintiff and the defendant enter  and eject the plaintiff he be a seize to which he answer that the defendant  when he enter by the lease at will he be no seize for such a lease of a infant  be not void but only voidable c and then a sufficient lease against the  plaintiff although not against the infant Beaumont sergeant to the contrary by  this manner of gift Leonard er p William the son take nothing but the estate  settle only in William the father but not a estate tail by the word heir male  c and will a giver without sufficient word can create a estate tail but where  the intent of the donor be not accord to the law the law shall not be construe  accord to his intent but this intent shall be take accord to the law and he  hold that sir Thomas and William have several estate in tail and several  moieties and not one entire estate and here upon all the matter sir Thomas be  tenant for life of the whole the remainder of one moiety to he in tail the  remainder of the other moiety unto William in tail and rebus such to stand sir  Thomas levy a fine of the whole now as to one moiety which the conusor have in  tail the fine be clear good and so as to that Robert the lessor of the  plaintiff have a good title as to the say moiety and as to the other moiety he  conceive also that William be bind for this statute shall not be construe by  equity but shall bind all who be express except and that be not William the  son for his father never return and then his heir be not relieve by the  statute also William have a right of entry at the time of the fine levy for  the forfeiture and because he have surcease the time for the say right of  entry be shall not have now five year after the death of tenant for life for  he be the same person and the second save which provide for future right  extend to other person than those who be intend in the first save and he who  may take advantage of the first save can be relieve by the second save for no  new title do accrue to he in the reversion or remainder by the death of tenant  for life for that title accrue to he by the forfeiture so as the title which  he have by the death of the tenant for life be not the title which first  accrue unto he also by this forfeiture the estate for life be determine as if  tenant for life have be dead for if tenant for life make a feoff in fee the  lessor may have a writ of entry ad boundary who praeterijt Fitzherbert which  prove that by the forfeiture the estate be determine and then no new title do  accrue to he in the remainder by the death of the tenant for life but that  only which he have before the alienation so that his nonclaim after the five  year shall bind he then when William the infant have a right to a moiety and  Robert the lessor of the plaintiff a right to the other moiety and the infant  leas unto the defendant at will who enter now be he a seize as well to Robert  as to the infant then if the defendant be seize and have no title by the  infant Robert who have right in a moiety may well enter into the whole for he  have the possession per my per Leonard tout by his entry and then when the  defendant do eject he be have good cause of action and after at another day  the case be move and it be agree that for one moiety the infant be bind for  sir Thomas have a estate tail in a moiety for he be issue of the body of the  conusor but for the other moiety the fine levy by tenant for life William the  father be then tenant beyond the sea it be hold by Anderson Windham and  walmesly that the infant be not bar notwithstanding the objection abovesaid  that William the father never return into England and notwithstanding the word  of the statute of h and by walmesley if a infant make his claim within age it  be sufficient to avoid the fine and yet the say statute seem to appoint to he  time within five year after his full age so that accord to the very word a  claim make before or after shall be vain yet in equity although he be not  compellable to make his claim until the time allow by the statute yet if he  make it before it be good enough and by Anderson although that William the  father do not return yet if he make not his claim within five year after the  death of his father be of full age and without any impediment c he shall be  bar if in such case a man have many impediment he be not compellable to make  his claim when one of the impediment be remove but when they be all remove so  if the ancestor have one of the say impediment and die before it be remove and  his heir be within age or have other impediment he be not bind to make his  claim till five year after his impediment be remove and sum case cite before  be hold and agree to be good law for the forfeiture may not be know unto he  and as to the objection against the lease at will because it be make by a  infant and no rend reserve upon it nor the lease make upon the land and  therefore the lessee shall be a seize to that it be answer be the defendant a  seize or not it be not material here for if the plaintiff have not title  accord to his declaration he can recover Leonard er p whether the defendant  have title or not for it be not like unto trespass where the very possession  without other title be good contrary in action against all who give not title  but in ejection strong if the title of the plaintiff be not good and  sufficient be the title of the defendant good or not be shall not recover and  afterward judgement be give for the defendant hill Elizabeth   Inst cro cro  cro mich Elizabeth in common banc