a report of a case argue in the common bench before and by all the justice of  the same bench in Hillary term in the six and seven year of the reign of king  Edward the six in a action of debt bring by William partridge plaintiff who  sue for himself and the king against John strange and John croker defendant  and the record be enter in Trinity term Edward rot and be read as follow see  Jenkins v Jones Q b d Gloucest declaration John strange late of the city of  Oxford in the county of Oxford gentleman and John croker of Hucknorton in the  county of Oxford esquire be summon to answer as well vide W Jones hawk p c the  lord the king as William partridge of a plea that they render to they pound  which they owe the same lord the king and the aforesaid William and unjust  detain by reason of a certain attempt contrary to the form of a statute make  in the parliament of the Lord Henry the eight late king of England father of  the lord the king now hold at Westminster in the thirtysecond year of his  reign against those who shall bargain buy or sell or by any way or mean obtain  get or have any pretence right or title or take promise grant or covenant to  have a right or title of any person or person in or to any manor land tenement  or hereditament except such person or person as shall so bargain sell give  grant covenant or promise the same their ancestor or they by who he or they  claim the same have be in possession of the same or of the reversion or  remainder thereof or take the rend or profit thereof by the space of one whole  year next before the say bargain covenant grant or promise make upon pain that  he who shall make any such bargain sale promise covenant or grant shall  forfeit the whole value of the land tenement or hereditament so bargain sell  promise covenant or grant contrary to the form of the statute aforesaid among  other thing man de and provide c and whereupon the same William who prosecute  as well for the lord the king as for himself by John stock his attorney say  that whereas by the aforesaid Act make in the aforesaid parliament of the  aforesaid late king hold at Westminster aforesaid the twentyeight day ofApril  in the aforesaid thirtysecond year of his reign among other thing S it be  enact by authority of the same parliament that no person or person of what  estate degree or condition soever he or they be shall from thenceforth bargain  buy or sell or by any way or mean obtain get or have any pretence right or  title or take promise grant or covenant to have any right or title of any  person or person in or to any manor land tenement or hereditament except such  person or person who shall so bargain sell give grant covenant or promise the  same their ancestor or they by who he or they claim the same have be in  possession of the same or of the reversion or remainder thereof or take the  rend or profit thereof by the space of one whole year next before the say  bargain covenant grant or promise make upon pain that Plowden be who shall  make any such bargain sale promise covenant or grant shall forfeit the whole  value of the land tenement or hereditament so bargain sell promise covenant or  grant contrary to the form of the same Act and the buyer or taker thereof know  the same shall forfeit also the value of the say land tenement or hereditament  eastern by he buy or take as be abovesaid whereof one half of the say  forfeiture shall be to the lord the king and the other half to the party that  will sue for the same in any of the king court Plowden er p of record by  action of debt bill plaint or information in which action bill plaint or  information no essoign protection wager of law nor injunction shall be allow  as in the same act among other thing be more full contain nevertheless the  aforesaid John and John the statute aforesaid not weigh after the make of the  say statute to wit the six day of July in the four year of the reign of the  say lord the king at minty in the aforesaid county of Gloucester bargain grant  and to farm let for a term of year to one Robert mill and Gabriel Pledall one  message call Genetts and eleven acre of land to the same message belong and  seven acre and three fardel of land in the field of minty aforesaid with the  appurtenance in minty aforesaid in the aforesaid county of Gloucester of the  value of pound of which say tenement the same John and John or any of their  ancestor or they by who the same John and John claim the same tenement be not  in possession of the same nor of the reversion or remainder thereof nor take  the rend or profit thereof by the space of one whole year next before the  aforesaid bargain grant and demise to farm thereof make by which mean a action  have accrue to the same William partridge to demand and have of the aforesaid  John and John for the aforesaid lord the king and himself the aforesaid pound  for the value of the tenement aforesaid contrary to the form of the statute  aforesaid bargain grant and to farm let nevertheless the same John and John  although often request the aforesaid you to the say lord the king and the same  William have not yet render but the same to they to render have hitherto  refuse and yet refuse wherefore the same William say that he be damnified and  have damage to the value of pound and therefore he bring suit c defendant  demurrer and the aforesaid John and John by Roland durant their attorney come  and defend the force and injury when c and say that the matter in the  declaration aforesaid above specify be insufficient in law for the aforesaid  William to have and maintain his action aforesaid against they the say John  and John and that they have no necessity nor be by the law of the land bind to  answer the say matter in manner and form aforesaid declare and this they be  ready to verify wherefore for want of sufficient matter in the declaration  aforesaid specify the same John and John pray judgement and that the aforesaid  William may be preclude from have his action aforesaid against they c joinder  and the aforesaid William for that he have above declare sufficient matter in  law to maintain his action aforesaid which he be ready to verify which say  matter the aforesaid John and John do not deny nor to the same in any wise  answer but the say averment whole refuse to admit pray judgement and his debt  aforesaid together with his damage by reason of the detain the say debt to be  adjudge to he c and because the justice here will advice of and upon the  matter in the declaration aforesaid specify before they give judgement thereon  day be give to the party aforesaid here until the octave of saint Michael to  hear their judgement thereon because the justice here thereof not yet c  memorandum all the sergeant at the bar videlicet the new and ancient sergeant  have argue in the same case in the term of saint Michael last pass except  Morgan Whidon and sander who now argue and the other argument I do not hear  the case Hillary term pound Edward a action upon the stat of h cap of pretend  title for that the defendant lease land of which neither they nor their  ancestor be possess nor take the profit by the space of a year next before and  adjudge that a lease for year be within the statute as well as a great estate  that the commencement and end of the lease needs not be show by the plaintiff  that it be not necessary for the plaintiff to recite the statute but yet if be  do and misrecites it as in the day of the make of it the count shall abate and  the misrecital of it shall not be aid by the demurrer of the adverse party  that the statute be penal shall not be take by equity that though the statute  speak of pretence right or title in the plural number yet a pretence right or  title in the singular number be within the statute that the plaintiff ought to  aver it to be a pretence right or title and if the plaintiff declare that the  defendant bargain grant and demise to farm these three word shall be take in  aggravation of the Plowden er p offence and shall make the count double by two  justice against two S c dyer pl vin Abr title maintenance t pl Morgan sergeant  recite the case in this manner you my lord have well understand by the record  how that William partridge have sue here before you for himself and he king a  action of debt against John strange and John croker and demand pound which  they owe to the king and himself by reason of a attempt against the form of a  statute in the parliament of the late king Henry the eight at Westminster in  the d year of his reign publish and provide and be count that whereas by the  say Act make in the say parliament of the say late king hold at Westminster  the say that day of April in the say d year of his reign among other thing it  be enact that no person or person of what estate degree or condition soever be  or they be shall from henceforth bargain buy sell or by any way or mean obtain  get or have any pretence right or title or take promise grant or covenant to  have any right or title of any person or person in or to alley manor land  tenement or hereditament except such petson or person as shall so bargain sell  give grant covenant or promise the same their ancestor or they by who he or  they claim the same bad Plowden be in possession of the same or of the  reversion or remainder thereof or have take the rend or profit thereof by the  space of one whole year next before the say bargain covenant grant or promise  make upon pain that be who shall make any such bargain sale promise covenant  or grant shall forfeit the whole value of the land tenement or hereditament so  bargain sell promise covenant or grant contrary to the form of the same Act  and that the buyer or taker thereof know the same shall forfeit also the value  of the say land tenement or hereditament so by he buy or take as be aforesaid  one moiety of the say forfeiture to be to our lord the king and the other  moiety to the party that will sue for the same in any of the king court of  record by action of debt bill plaint or information in which no essoign  protection wager of law or injunction shall be allow as in the say Act among  other thing be contain notwithstanding this the say defendant such a day after  the say Act bad bargain grant and demise to farm for a term of year to Robert  mill and Gabriel Pledall one message call Genetts and eleven acre of land to  the same message belong and seven acre and three fardel of land in minty in  the say county of Gloucester of the value of pound of which land and tenement  neither the defendant themselves nor any of their ancestor nor they by who the  defendant themselves claim the same tenement be in possession nor of the  reversion or remainder thereof nor take the rend or profit of the same by the  space of one whole year next before the say bargain grant and demise thereof  make by which mean a action bath accrue c and upon this count the defendant  have demurrer in judgement and it seem to I that the count be insufficient for  it be both too abundant and defective and also want form a die pl bendl Freem  t raym wing Max red pl vin Abr title statute e pl vide infra g post agree per  cur say vide and S p hold contrary and this opinion deny to be law a for the  statute be recite to be make the that day of April in the d year of the reign  of king Henry the eight where in rei in point of fact the statute commence the  that day of April in the saint year of the rei n of king Henry the eight and  be continue by prorogation until the d year of the reign of the say late king  and then the Act be make so that there be no parliament hold the that day of  April in the d year of that reign as the plaintiff have rehearse then he have  ground his action upon a statute where it appear to the court there be no such  statute in which case for his mistake the count shall abate it b S p cite and  affirm to be good law Mod per Atkins I b as if a man vouch a record and the  other deny it and at that day he bring in such record but it vary in the year  or term he have fail of his record for there be no such record the time be  part of the matter so here there be no such statute make such a day as he have  rehearse but it seem to I that it shall be account a Act from the last day of  the parliament c m h pl Fitzherbert parliament bro die pl more Bulst hob   b  Inst Inst finch Mod c for three Plowden er p thing be necessary to constitute  it a Act to wit the assent of the lord of the Commons and of the king and one  or two of they without the three do it make it a Act for although the lord and  Commons agree to a thing yet it be no Act until the king have also assent and  his assent always come after their assent and for the most part it be give the  last day of the parliament and then from that day forward it be a Act and not  before that day for before the king assent it be like a issue in ventre sa  mere which be not a perfect issue until it be bear so the statute be not full  nor perfect until the king assent be give to it and from the time of the king  assent it be account in law a Act and from no time before which all the  sergeant who argue after he and all the justice deny d p h a per Fauxes bro  exposition deal term h bro parliament relation b n c die pl and hob cro c W  Jones Inst ld raym d for they say that the assent of the king and of the lord  and Commons also shall have relation to the first day of the parliament and  from the first day forward it shall be account in law a perfect Act and from  the first day forward all shall be punish for a offence do against it after  the first day except a certain time be appoint when the Act shall take effect  e b n c bendl Bulst e but hale justice say if the parliament have diverse  prorogation and in the second or three session a Act be make this shall not  have relation to the day of the beginning of the parliament that be to the  first day of the first session but only to the first day of the same session  in which it be make as the parliament of h be hold upon prorogation and the  common f bendl see the plead ante Wimbish v Tailbois f plead of a use be  videlicet that the feoff be seize to the use of I S until the four day of  February in the that year of king Henry at which day he be seize of the  demesne c and Mr Morgan argue further and say that for the mistake of the day  of the Act the count shall abate but it have be object that the statute be  general in which case it be not necessary to be rehearse but the judge ought  to take notice of it without it be be recite and then the recital of it be  surplusage and the misrecital of what be surplusage shall not hurt the party  sir I agree that it be not h h p c hawk p c necessary to recite the statute no  more than it be necessary to recite the statute of champerty or maintenance in  which case it be sufficient to say contrary to the statute in such case  provide without further recital but yet I say g S p h h bro parliament b n c  sty cro e cro c hob Leon Bulst side cart godb finch finch donc Pla hawk p c  hawk p c h h p c t Jones strange vin Abr title statute e pl vide above a post  per cur contra touch of prece g that if he recite a statute to be make precise  such a day where there be no statute make that day he have fail for he do not  refer the statute to the knowledge of the judge as he will have do if he have  say contrary to the form of the statute in such case provide in which case if  he have say so the law will refer the matter to such statute as be most apt  for it but he have recite a Act and do not intend or mean any other and if  there be none such as he have recite there he have ground his action upon that  which be not and so the recital of the day which be superfluous and surplusage  make the matter faulty if it be misrecited h finch finch h as if one bring a  action of debt by the name of I S parson of d the defendant say nul tiel ville  as d this shall be a good plea in abatement of the writ and vet the name he  parson be surplusage therefore this surplusage shall mark the matter Plowden  so here the recital of the day of the parliament which be misrecited shall  vitiate the matter further it seem to I a post this exception overrule by all  the justice except cook a that the plaintiff ought to have recite the number  and certainty of the year for it be to be consider that the statute without  the lease Plowden er p be not the cause of the action but the lease and the  statute together and then if the lease be one of the chief cause of the action  the certainty of it ought to be show and as to what be say that the plaintiff  be a stranger to the lease and therefore shall not be compel to show it  inasmuch as he be not privy to it nor can have knowledge of it sir if he can  take notice of part be may take notice of the whole and how in reason can be  take advantage of a thing if he do not know the thing certain he can and if he  know the thing it be reasonable that he shall show it certain and this be not  like the case where a man shall claim by a deed to which he be a stranger  without show it for although he shall not be compel to show the deed because  it belong to another yet he ought to take certain notice of the content of it  so here he ought to take notice of the certainty of the lease that be of the  time of the commencement and end of it and the number of the year and since  this be not show the count be bad then as to the matter it seem to I b post  contra by all the justice b that this lease be out of the danger of the  statute for it be to be note that the statute here be penal because it give a  great punishment for the offence than the law give before and then if the  lease be not within the word of the statute it be out of the danger of the  statute and it seem to I to be out of the word and intent of the statute also  for the statute have three branch the first be that none shall bargain buy or  sell pretence right or title of any person or person the second be concern the  obtain or take such right or title of any person or person the three be  concern the take of a promise of any right or title of any person or person  but in what be it sir it be in or to any manor land tenement or hereditament  so that these word manor land tenement or hereditament be refer to each of the  three sentence then the statute be that none shall bargain or buy any pretence  right or title in any manor land tenement or hereditament and what be the  sense thereof sir I say that the meaning of it be that he shall not bargain or  buy all the right or title of any person for if he have bargain or buy no more  than a estate for year then he have not his right or title but part of it only  for the lessor himself have the right of the freehold or inheritance after the  lease for year make and sir it shall be intend that the lessors here have a  great estate than for year and it can be intend that they have a lesser estate  than a fee for it can never be take that the lessors have a particular estate  because the commencement of it be not show and then if the whole be not grant  ergo his right or title be not grant and therefore the statute of I h cap  recite that whereas some person have forge false deed to change the land of  the good man of the country and to destroy and trouble the possession and  title of the liege subject of our lord the king c provide and ordain that the  party grieve thereby shall have his suit in such case and there I apprehend  the law to be c vin Abr title forgery a pl in marge say vide m Edward b per  moil bro Forge c that if a man forge and publish a false deed of a lease for  year a writ of Forge of false deed do not lie thereupon for when the statute  say to change the land and to trouble the possession and title this can be  intend of a estate for year so that a lease for year be not include in it no  more be it in our case and so the statute of Westminster cap ordain that no  officer of the king by themselves nor by other shall maintain plead suit or  matter hang in the king court for land tenement or other thing c d Inst d  which word other thing include lease for year but if there have be only the  word land and tenement lease for year have not be include in they which the  maker of the statute well perceive and therefore they put in the say word  other thing and so the statute of Westminster cap ordain that none shall  receive land or tenement in fee by gift nor by purchase nor to farm nor to  champerty nor otherwise c and there it be to be note that if the statute have  say none shall receive land or tenement only then a receipt of a lease for  year have not be prohibit by those word and therefore be it put in in fee nor  to farm for if a term have be prohibit by the first word then the word to farm  will have be put in the statute in vain which be never to be intend which  statute argue in our case that the prohibition of our statute against bargain  and buy c of Plowden er p manor land tenement or hereditament do not extend to  a term and for another cause we ought to construe the statute not to extend to  a term for the penalty be to forfeit the whole value of the land tenement or  hereditament and inasmuch as it be so it can be take to be the intention of  the legislature that he shall forfeit the whole value of the inheritance for a  lease for year but that be shall forfeit the whole value where the whole  estate be sell or buy for to say that he shall forfeit as much for take of a  lease as he shall forfeit for take the whole inheritance be a inequality of  punishment and inconsistent with the discretion of those who be assemble in  that parliament wherefore it seem to I that upon the whole matter this case be  out of the danger of the statute further it seem to I that if a lease for year  be within the danger of the statute yet it ought e post per hale I per  Montague CJ send contra per cook I e to be aver that it be a pretence right or  title for every estate which be within the word of the statute be not within  the danger of it and therefore if a man die seize in fee of certain land and a  stranger abate to who the heir release and afterward the heir notwithstanding  his release claim the land by descent make a lease for year to a stranger now  this lease admit that a lease for year be within Plowden the penalty the  statute be within the word of the statute because his ancestor by who he claim  be in possession for a whole year and so out of the penalty of the statute by  the very word but if it be aver to be a pretence right then this averment will  help the matter and bring it within the penalty of the statute as in rei in  point of fact it be and so the averment and not the word make the whole matter  so it seem here that it ought to be aver a pretence right or title wherefore  in this point the declaration be defective and thus it be too abundant as well  as defective as be show before and the medium be the perfection which be here  want for which reason the declaration be not good and so the plaintiff ought  to be bar Whidon to the contrary and as to the first point it be to be  consider that the statute here be general as be the statute of h concern the  conveyance of the possession to use and needs not be recite for without  recital the party shall take advantage of it as if the tenant vouch out of the  line the demandant shall demurrer without recite the statute of Westminster  cap make thereupon so it be a good counterplea to say that he who vouch be the  first that abate without recite the say statute of Westminster and executor of  executor shall have a action of account without recite the statute of Edward  cap make thereupon for these statute be general and the judge be bind to take  notice of they a h h b Fitzherbert action sur lestatute bro surmise theol dig  fib cap donc Pla a and so the book be in h that a information upon the statute  of livery be good without recite the statute causan how above so this statute  in our case needs not be recite now be it requisite to show the day of the  make of it b Mod Mod turner v moss ante post b and then the misrecital of that  which be surplusage shall not vitiate the matter as if one as executor bring a  action of debt upon a contract make to he he shall not show the testament for  the name himself executor be surplusage c m h a per Newton c so in detinue  against two as executor they shall not plead that another be coexecutor with  they for they be not charge as executor but the detinue be the cause of the  action and the name they executor be surplusage d p h b per Danby d so if one  by deed by the name of a b heir to I S make a feoff at another time be shall  say that he be not his heir and shall not be estopped for the name himself  heir be not material so the recital of the day of the statute here be not  material and therefore the misrecital shall not hurt the plaintiff then as to  another exception which be last move videlicet that he ought to have aver the  title or right to be pretence sir this be e post per cook I say contra per  hale I per Montague CJ e not necessary f wing Max ring pl Gouldsb f for the  statute declare and intend the title to be pretence if neither he nor his  ancestor nor they by who they claim have be in possession thereof or of the  reversion or Plowden er p remainder thereof nor take the rend and profit  thereof for one whole year next before the bargain c and therefore a man shall  not aver that which be apparent by the statute g vin Abr title averment b pl g  as where it be prohibit that none shall alien in mortmain if the lord show  that he enter into the land within the year because his tenant alien in fee to  dean and chapter be shall not aver that this be mortmain because upon the  matter it appear to be so h post per cook I vin Abr title averment b pl h so  here inasmuch as in the count it be declare that neither the defendant nor any  of their ancestor nor they by who the defendant claim be in possession  reversion or remainder thereof nor take the profit by the space of one whole  year before the lease it appear to be pretence and that in the true meaning of  the word as the statute have construe and take it and then a averment of that  which be apparent be not necessary and so the count be good notwithstanding  this exception and as to the other exception videlicet that the certainty of  the term ought to be show sir this be not necessary for the term be only a  conveyance to the sum which he demand and those thing which be only I ante  king and the book there cite I conveyance need not be so certain recite as  that which be matter of substance king m h b per Prisot Hardr wing Max ring pl  king and therefore in a num  adv  so much all the record shall not be show in  certain but that part of it only which convey the plaintiff to his action but  if a writ judicial issue out of a record be ought to recite the record certain  for the record be the effect and substance and not only conveyance as it be in  our case wherefore inasmuch as the lease here be but conveyance and inducement  to the debt he shall not be compel to show the certainty of it also be shall  not show the certainty of it because be be a stranger to it and it may well be  resemble to the case of show of deed l m h Fitzherbert to point out de faits  bro p h a per Fineux heath Max wing Max ring pl post vin Abr title faint m a  pl l and therefore in h a man bring a action of trespass for good take the  defendant justify for that at the time of the trespass suppose he be mayor of  the town of c and that the king bad grant to the defendant then be mayor and  to the commonalty and to their successor all the good of person outlaw within  the same town and show that the plaintiff be outlaw and so justify and by the  better opinion the plea be good without show the letter patent because now  they belong to the successor and not to he and he be a stranger to they now  although he be once privy m ante g and the book there cite m so a woman shall  have her writ of dower of a rentcharge grant to her husband without show the  deed causan how above and so if a mail bring a action of debt against his  lessee for year for the rend reserve he shall say that the estate which his  lessor have be upon condition and that such a one enter for the condition  break before the time when the rend be suppose to be in arrear judgement si  action and the plea be good without show what the condition be or the  certainty of it because he be not privy to the condition so in our case he be  not privy to the lease and therefore he shall not show the certainty of it and  therefore the count be good notwithstanding this exception then as to the  matter it seem that it be n die pl pl   a   Litt a roll r Pulton a hawk p c  wing Max ring pl vin Abr title maintenance foe post per sander per cur n  within the statute for the plaintiff have count that the defendant bargain  grant and demise to farm the message c and a man may bargain land as well for  year as in feesimple and some man will be as ready to maintain to have a lease  for year as to have a lease for life or a feesimple and the effect of the  statute will be in a great measure take away if lease for Plowden year be not  prohibit as well as great estate and inasmuch as it be show that the defendant  be not in possession for a whole year before c it be full show to be within  the word of the statute and if it be not within the word yet shall it be  within the Plowden er p equity of the statute for it be in equal mischief a  post contra by all the justice a and the statute shall be take by equity  inasmuch as it be make in suppression of vice and great mischief  notwithstanding it be penal against the offender b Inst   a roll r Brownl per  coke CJ see ante b as to the statute of marlbridge cap say if a man feoff his  soak and heir by collusion c yet if he feoff his brother or sister be his heir  apparent it be within the equity of the statute and so a action of debt will  lie against the warden of the fleet by statute but damage shall be recover  against he by equity c and be put many other like case upon the equity of  statute for which reason it seem to he that the action be maintainable sander  it appear to I in the same light this demurrer be in consideration of two  thing videlicet the statute and the record in court and if the statute be well  weigh and consider it will clear up several of the doubt move in the record  and as to the statute it be make to remedy diverse great mischief and  inconvenience videlicet maintenance embracery champerty and subornation of  witness which be enemy to the due administration of law and the destruction of  the trial of the truth of issue in which consist the main point videlicet the  administration of the law and it be also make for the preservation of  tranquillity peace and concord and as the wise Solomon say of wisdom so may it  be say of concord videlicet in all respects good equally cum that and where  concord be exile there she leaves in her room discord injustice trouble  vexation and all iniquity in general which be the root and foundation of  perjury and oppression to avoid which this statute be make as appear by the  preamble of it c Hardr c and then I say although the statute give a penalty  yet see it be very beneficial to the public weal thing which be out of the  letter shall be take within the equity of it and if the word of it be obscure  they shall for the same reason be expound most strong for the public good d  Hardr post per Plowden d for word which be no other than the verberation of  the air foe not constitute the statute but be only the image of it and the  life of the statute rest in the mind of the expositor of the word that be the  maker of the statute and if they be disperse so that their mind can be know  then those who may approach near to their mind shall construe the word and  these be the e that the exposition of statute belong to the judge h bro trial  b n c in a note I Mod comb per Pollexf arguendo e sage of the law who talon be  exercise in the study of such matter and to prove this the statute of  Westminster cap be that if the tenant alien part of his land he shall hold of  the chief lord for the same part secundum magnitude terrae so sell and there  the sage of the law have not expound the word secundum magnitude terrae accord  to the letter but have interpret they f Hardr see ante e and the book there  cite f secundum valor terrae for that be the intent of the maker of the  statute g see ante oh and the book there cite g and so the statute of  Westminster cap concern land entail say and if a fine be hereafter levy upon  such land Self jure sit no one there the sage of the law do not take the word  accord to their common meaning but they have take the word Self jure in this  light that as to bind the right the fine shall be null and void but as to the  possession it work a discontinuance for this be the intent of the statute and  yet the word be Self jure sit no one which seem in common understanding to  mean that in law it shall be void and so the statute of Gloucester cap be that  the heir of the mother shall not be bar to demand the inheritance of his  mother alien by the father whereof no fine be levy in the king court yet if  the father only levy the fine be shall be receive to demand the land against  the fine and so the expositor of the law have take it and they have expound  the intent of the statute to be h see ante p and the book there cite h whereof  no lawful fine be levy to wit by the father and mother so that the efficacy of  statute consist not only in the word but in the intent thereof which intent  ought always to be great Plowden er p consider and make agreeable with the  word and upon like reason a penal statute shall be extend by equity if the  intent of the maker of it may be so perceive and therefore the statute call  the statute merchant bind all the land of the conusor to the execution and  provide that they shall be deliver to the conusee upon reasonable extent and  speak not a word of the deliver they to the extenders if they extend they too  high I t Edward Fitzherbert extent bro stat merch m h b per curian Brownl W  Jones Hardr wing Max ring pl ring pl vin Abr title statute merch e foe post I  yet they shall be deliver to the extenders in that case by equity of the  statute of Acton burnel make before which say that the good appraise too high  shall be deliver to the appraise themselves at the rate they set upon they  which statute be penal king p h bro return de aver second deliver b n c p h pl  bro damage vin Abr title nonsuit p pl king and if the plaintiff be nonsuit in  second deliverance the defendant shall recover damage as well as if he have  bar the plaintiff in deed because return irreplevisable shall be award and so  by this mean the plaintiff be bar and this by the equity of the statute of h  cap and yet the statute be penal but because the expositor of the statute take  the intent of the maker of it to be such videlicet to give damage in case of  like nature that be the reason thereof and so the intent of the maker of  statute direct the word and equity of they which consideration be apply to the  statute in our case and the mind of the maker of it be well perceive as well  by the preamble as by the body of the Act will set aside three objection which  have be make against the plaintiff the first be that the count be not good  because it be not aver that it be a pretence right or title sir to this I say  that whatever right it be which the defendant bargain whether pretence or not  it be within the danger of the statute for the two first branch go to pretence  right or title but the three be videlicet or take promise grant or covenant to  have any right or title which word any right or title be general and include  every right wonder other pretence or not but then it may be object that these  word extend only to he who take a promise grant Plowden or covenant and not to  he who make the promise grant or covenant as our case be sir as to this I say  that the word after prove that it extend as well to they who part with the  estate as to they who take the estate for the word after be except such person  as shall so bargain sell give grant covenant or promise the same c which word  refer to he who part with the right or title and so be the word afterward upon  pain that he who shall make any such bargain sale promise covenant or grant  shall forfeit c which word also refer to he who part with the thing and so  although the word in the three branch go to he who take any right or title  they also reach to he who make promise or grant to part with any right or  title wherefore this word any be general so that whether it be pretence or not  it be within the compass of the word as well as to the bargainer as the buyer  ergo it ought not to be aver that it be a pretence right or title the second  objection be in that the statute say pretence right or title so that the  statute be in the plural number and then one right or title be not within the  word because it be in the singular number and the statute be in the plural sir  to this I answer that if there be no more word in the statute than these in  the plural number yet these do contain every singular number and especial here  inasmuch as the word be any pretence right or title so that this word any  include the singular a post per hale I   Litt a wing Max ring pl a number  without doubt also the three branch be any right or title and therefore be in  the singular number and our case be within this branch as I have prove before  so that this objection be sufficient answer then as to the other objection  that he ought to have the whole right and that a lease for year be not within  the compass of the statute sir b see ante n and the book there cite b this be  not so for as have be say before the word of the three branch be any right or  title which word any contain every right or title so that be the right or  title in fee in tail for life or for year it be include in this word any for a  title for year be a title and be include in the word any therefore whether it  be take that the defendant have a Plowden er p fee and make the lease for year  or that they have the lease for year and grant it over it be all one for a  lease for year be within the word any right or title and he that have a lease  for year have a right and title for year and to prove that he have a right  estate and title first Bracton say that be who have a lease for year to have  law act  et to derive enjoyment from in another book tenement and so by his  opinion he have right in the land and to prove a estate in the termor sir c    a Leon vin Abr title remainder W pl ante c a remainder by the rule of law can  be but where there be a estate precedent and if a lease for year be make the  remainder in fee the remainder be good for the lease for year be a estate in  the eye of the law and to prove that he have a title in h Brian be of opinion  that the termor may d that a termor may falsify at the commonlaw p h b  Fitzherbert Fauxer recov bro h h b per Brian h Edward Fitzherbert assize  Resceit h Edward a that he may not t h Fitzherbert Fauxer recov ass pl m  Edward a per Danby m h pl t h pl kelw b per road CJ f n b e   Litt a   a    Inst vide cro e d falsify a feint recovery against his lessor by the commonlaw  before the statute of Gloucester in a ejection strong because he be not arty  and have a title and so it seem the lessee for year have a title in the land  from whence it appear to I that the lessee for year have a right estate and  title in the land e h h a b per strange bro maintenance wing Max ring pl e and  in h in the case of maintenance bring by Thomas rothwel it be say if I grant  to one b that if my tenant for term of life die during my life the say b shall  have the land for the term of year and afterward my tenant be implead there b  may lawful maintain and yet be bath nothing and it be doubtful whether he  shall have his term or not nevertheless because be have colour of title he may  well maintain and then if the lessee for year bath such a interest that by the  commonlaw he may maintain there be great need of a remedy in the case and sir  this statute have provide for it wherein all other statute before be defective  for all other statute which be make concern maintenance or champerty be make  to avoid maintenance pen the suit only and this statute be make to avoid  meddle in other affair before any other afterward and it be as necessary to  provide a remedy against he that have a estate for year or a promise thereof  as against one the have a great estate f Pulton a f for he that have a estate  or a promise to have a estate for year will maintain as well as he who have a  estate or a promise to have a estate for life or in tail or in fee although  the estate of the former be not so great and therefore if the statute be  deliberate weigh and consider a lease for year will be take within the purview  of it and so it seem the statute maintain the count and avoid the say three  objection then as to the count be too abundant in recite the day where it be  not necessary and misreciting it sir there be a statute g stat Edward cap die  pl   a Bulst Doc Pla post g that no count shall abate for want of form if it  have substance and here there be substance in the count videlicet the deed as  it be make and as to the statute you judge have a private knowledge and a  judicial knowledge and of your private knowledge you can judge but may use  your discretion h p h a per Tirwhit et gascoigne Leon h as it appear in h  where the king demand of gascoigne justice if he see one in his presence kill  I S and another that be innocent be indict for it before he and find guilty of  the same death what he will do in such case and be answer that he will respite  judgement because he know the party be innocent and make further relation to  his majesty to grant his pardon and the king be well please that the law be so  but there be can not acquit he and give judgement of his own private knowledge  but where you have a judicial knowledge there you may and you may give  judgement accord to it I t h pl per Fitzherbert bro charter de pardon notice  parliament h h pl Fitzherbert coroner bro indictment die pl Inst hawk p c h p  c I as if one be arraign upon a Plowden er p indictment for a offence which be  pardon by parliament there you ought not to proceed in it nor give judgement  if be be find guilty because it appear to you by your judicial knowledge that  you ought not to arraign he for the judge ought to take notice of statute  which appear to they judicial although they be not plead and then the  misrecital of that whereof the judge ought to take notice without recital be  not material and it be not like Plowden to the case of procedendo and  protection where the day be misrecited because that be a private record a h  Edward pl bro parliament a and so be the case in Edward where it be grant by  parliament that Ashby shall have a writ with proclamation out of the chancery  against one Griffith to answer to diverse trespass which be contain in the Act  of parliament and the writ be abate by award because it do not make mention of  the trespass in certain and so it vary from the Act but that be a private Act  and therefore the nonrecital of the trespass make the writ bad and so will a  misrecital but our act be general whereof the judge be bind to take notice  without the show of the party and the misrecital of it be not material and as  to the certainty of the term he shall not show it because he be a stranger to  it b see ante a and the book there cite b as the defendant shall plead  jointtenancy on the part of the plaintiff without show of who gift and so the  tenant shall say and estate I S have in the signiory without show how because  he be a stranger to it so be the plaintiff here a stranger to the term for  which reason it seem to I that the plaintiff shall recover afterward the  justice argue two other day in the same term and in some thing they agree  which to avoid prolixity and tediousness to the reader I apprehend it be  better to recite brief all together than to declare their several argument at  random c theol dig lib cap c first all the justice except Montague chief  justice agree that it be not necessary for the plaintiff to recite the statute  because it be a general statute and extend to every one of the king subject  and the justice be bind to take notice of it without the recital of the party  and if he have show the deed and have conclude contrary to the form of the  statute in such case provide it have be very well and without recite so much  it have be good as they hold but Montague be of opinion that he ought to  recite the statute certain for the statute be the ground of his suit and he  ought always to recite the substance of his action but all the four justice  agree d see ante a and g and the book there cite d that the count shall bear  for the misrecital of the statute e Bracton lib foe m h b a bro count   Litt a    b Bulst cro I Hardr side jenk pl hetl donc Pla finch heath Max vin Abr title  certainty in plead per totum post e for declaration ought to have two thing  the first be certainty in order that the defendant may know what he be to  answer to f m Edward pl bro contract labourer Hardr Bulst Bulst wing Max ring  pl post f and therefore in Edward a man retain in husbandry bring a action of  debt against a prioress for his salary and declare that he be retain with her  predecessor and do not show what person retain he and by the better opinion  the count shall abate for the incertainty for it may be that one who have no  warrant retain he to be with her predecessor g vin Abr title replication king  pl g in some case the count and the writ also be general without certainty as  assize but there the certainty ought to be show by the replication and in some  case the writ and the count and the replication also be incertain but there  the certainty shall appear by the verdict as in a quare hinder the value of  the church do not appear in the count nor in the replication but it shall  appear by the verdict for they shall assess double damage or damage for half a  year accord to the value of the church as the case require so in a writ of  ware the jury shall find Plowden er p whether the heir be marry or not and  they shall assess damage for it and yet no such matter appear either in the  count or in the replication so in detinue the value of the good shall appear  by the verdict and in many other case wherefore certainty ought always to  appear to the court and if it be requisite to be show in the count then it  ought not to be omit in it the other thing which the law require in count be h    Litt a donc Pla jenk pl h truth which ought to be join to certainty and if  it appear to the court that falsehood be utter in the room of truth the party  who show the same have confound and annoy himself I t h b per Fineux m Edward  pl   a Bulst roll r cro I kelw b finch vide sand hob I and therefore if a man  bring a action of debt for two payment at two day whereof one be not yet come  by his own show he have thereby abate his own writ because he have show  falsehood and so in our case he have ground his action upon a statute by he  recite where it appear to we judicial that there be no such statute make at  that time and therefore he have abate his count by his own show king p h pl  Fitzherbert brief bro champerty king so in h a writ of champerty be bring  which be not warrant by any statute and there Newton say that if the party can  not show they some statute by which it be warrant that they will award that  the writ shall abate and as to that have be say that it be not necessary to  recite the statute and therefore the misrecital of it be not material it seem  to they that although it be not necessary yet if be recite it and there be no  such statute he have fail in substance for the court will not aid he nor take  that which he intend otherwise than it be show l see kelw a per mordant l and  this abundance in recite more than be necessary shall hurt the party  oftentimes m t h pl Fitzherbert count m h b Fitzherbert Forge bro amendment  count faits h Edward   a donc Pla finch finch wing Max ring pl l p kelw pl  contra h h pl Fitzherbert count bro Forge general brief see theol dig lib cap  vin Abr title abatement e a pl m and therefore in h a man bring a writ of  Forge of false deed and the writ be to visit fanctam et fortification c and he  count but of one deed only and by the assent of all the justice it be award  that the writ shall abate because the writ be of diverse deed and he count but  of one deed and yet it may be say that the writ in that it contain diverse  deed bad surplusage for it be not necessary to have contain more than a  certain factum in the singular number but yet such abundance there shall abate  the wonder and if one make title in assize in his plaint where it be not  necessary if it be unformal the whole shall abate and yet there be abundance  and more than be be compel to do so be it in the principal case and they put  man other good case on this head and for these reason they be agree ut above  and whereas it be say that the defendant by the demurrer have confess such a  Act of parliament as the plaintiff have declare they hold that admit the  demurrer to the a confession thereof yet it shall not bind the court which be  a three person as appear by the case in n see ante m n Edward where in  trespass for take cattle bring by the lessee for Plowden year the defendant  say that the lessor hold of he by so much rend which be in arrear for which he  take the cattle and the plaintiff reply rien arear and there notwithstanding  the defendant bad admit the writ good yet the opinion of all the justice be  that the court ought to abate the writ because it appear that the defendant be  lord against who the writ do not lie a ante n a and so if the defendant will  admit a appeal to be good which be bring by a woman of the death of her father  yet the court ought to abate it as it be there also hold because the b mag  cham cap b statute say none shall be take or imprison upon the appeal of a  woman for the death of any other than of her husband and so the court which be  the three person Plowden er p shall abate the count notwithstanding the  admittance of the party if it be a admittance of the defendant here as in rei  in point of fact it be not c see ante I and the book there cite c for a  demurrer be a confession of all matter of fact but not of matter of law for by  the demurrer they put themselves upon the judgement of the court and do it  confess the law to be against they and here perhaps the misrecital of the  statute be the cause of demurrer wherefore the exception be good  notwithstanding and as to that be say at the bar that the king be party here  and a misrecital shall not bind he they hold that the king have diverse  prerogative and that he may d p Edward a Fitzherbert prerog bro p Edward b m h  pl bro prerog   a Litt r Hardr Vaugh Pollexf arg in quo W finch heath Max post  d wave issue and demurrer in law et e contra and other prerogative be have e  Pollexf arg in quo W vide b n c e but yet by misrecital misuser or  misconceiver of action be shall be bind and upon such matter his writ shall  abate as well as in the case of a common person and if the law be so where the  king be sole party a much strong shall it be so where f heath Max f another be  party with he and therefore notwithstanding any of the say reason give against  the exception they hold that the count shall abate further as to the  incertainty of the lease cook justice be of opinion that the plaintiff ought  to show the certainty of it because without the lease he have no cause of  action and although be be not privy to it yet inasmuch as it be the effect of  the action be ought to take notice of it at his peril as in champerty be ought  to show the certainty of the first plea hawk p c and so in a num  adv  so much  he ought to show the certainty of the sum receive and in trespass if the  defendant plead that it be his freehold and the plaintiff entitle himself by a  lease for year make by he if the defendant will show that the plaintiff make a  feoff and that he enter for a forfeiture he ought to show the n I of the feoff  and the certainty of the feoff though be be a stranger to it so here the  plaintiff ought to show the certainty of the term but all the other justice be  of opinion g S p accord with the opinion of the justice here Leon godb hawk p  c die pl donc Pla g against he but the case put by he be good law for in the  case of champerty he be privy to the record and in the case of num  adv  so  much be ought to show the certainty of the money because be shall recover ten  time as much which he can do without show how much it be and in the case of  the forfeiture the lessor in the reversion be privy to it and so in all case  the privy ought to show the certainty h m h pl Fitzherbert dower bro die pl    a a   Litt b Perk godb Leon latch Mod donc Pla Bac Abr h and if the heir will  plead in bar in a writ of dower detinue of evidence he ought to show the  certainty of the evidence for he be privy to they which he affirm to belong to  he I m h pl bro dower h Edward a per Thorp vin Abr title dower l pl I but if  he say a bag seal with charter this be good without show the certainty of they  as it be hold in h by all the court except Englefield for the bag seal be  certain enough and so in all other case privy ought to show certainty but here  the plaintiff be a stranger and therefore he can be suppose to have knowledge  of it and therefore a indictment of murder king m Edward pl Fitzherbert  coroner ass pl Fitzherbert coroner bro appeal coroner ass pl bro coroner m h b  per Martin Pulton b die pl pl kelw b Leon h h p c hawk p c S p c Bac Abr post  king de in pardon or of steal l p Edward b per Catesby bro indictment p h  Fitzherbert indictment ass pl bro indictment S p c g h h p c hawk p c Bac Abr  Pulton b dalt just cap die pl pl kelw Mod post l the good cujusdam Plowden er  p pardon be good where the person kill or rob be unknown so here the lease may  be make private so that the plaintiff be a stranger can not by intendment have  knowledge thereof also the show of the commencement and the end of the year be  to no other purpose but only to show the length or shortness of the time which  be not material here for if it be for a hour or for year it be all one as if  lessee for life be charge that he shall not alien in fee if he alien in tail  only it shall be a forfeiture so here whether it be for a short time or for a  long time it be all one but if he shall recover accord to the value of the  lease then the commencement and the end of it ought to be show as in a num   adv  so much the certainty of the money ought to be show for be shall recover  ten time the value and quantity of it but here it be not necessary to show  more than the quality of the lease and that be their opinion as to this point  further whereas it be move at the bar that it appear in the declaration that  the bargain and lease for year be make of one message call Genetts and eleven  acre of land to the same message appertain and that as to these eleven acre of  land the count be not good nor may the plaintiff recover the value of they  because land may not be appurtenant to a message as to this exception all the  justice except cook who do not speak to this point but omit it in his argument  agree in opinion m h bro feoff b n c theol dig lib cap and godb show finch  post m that land may not be appurtenant to a message and this be a ground in  the law as the Lord Montague say but yet they all hold that the declaration as  to this point be good enough for the quantity of the land be express videlicet  eleven acre and so these word appertain to the say message be void because  land may not be appurtenant to a message and therefore it be the same as if  these word appertain to the say message have be omit and then the declaration  be one message and eleven acre of land in which case it be good and so the  three justice hold the declaration good as to this point and the Lord Montague  say n wing Max ring pl vide Leon n that the say word appertain to the say  message be matter to be give in evidence to prove what eleven acre the  plaintiff moan oh m h a b bro fine levy Nosme roll Abr pl comens see l p   b  Lutwy comb Mod vin Abr title fine pi title grant h pl oh as if I have two  manor of d and I levy a fine of the manor of d circumstance may be give in  evidence to prove what manor I intend as appear in h and the phrase make use  of in speak be of great help to find Plowden out the meaning of person a m h b  per Fitzherbert wing Max ring pl ring pl a as if I give you a cup of wine you  shall not have the cup but if I give you a hogshead of wine you shall have the  hogshead for the intent appear from the manner of the expression so the say  word appertain c declare what eleven acre be mean and hale say b theol dig lib  cap b that a garden may contain eleven acre in quantity and by this special  way it may be parcel of a message further it be move by cook c see die pl c  that the declaration shall be double because it be contain in it that the  defendant have bargain grant and demise to farm so that there be three word to  which they ought to answer where in rei in point of fact one have be  sufficient d h Edward a per Fairfax Fitzherbert double plea bro m h pl in fine  m h pl t h pl donc Pla cro c per cur pasch Geo b r Cornwallis v Seagrave S p  arguendo and agree per Lord Mansfield CJ and a difference there take at  commonlaw between a action of covenant and debt for the nonperformance of  covenant but in this last case the commonlaw be now alter by the stat will cap  whereby the plaintiff shall not be confine to assign any one particular breach  but may assign as many as he will and it shall not be double as it be there  also say at the bar d as in debt upon a obligation for the nonperformance of  Plowden er p diverse covenant show to be break be double for one covenant  break make a forfeiture of the whole obligation so here the plea be double  quod Montague to go away e h h pl Fitzherbert detinue bro bailment m h pl  Fitzherbert count bro charter de earth e for if the heir in detinue will  declare that his father now dead deliver the deed to be redeliver to he and  his heir and that be his heir and show also that he have the laud by descent  it shall be double so be it here but brown and hale be of a contrary opinion  as to this point for they say that by the three word the offence be declare to  be the great f m Edward a per Markham bro faux imprisonm Fitzherbert double  plea bro donc Pla h h p c hawk p c Bridgm finch finch f and in false  imprisonment a man may show twenty cause in justification of the imprisonment  and it shall not be double for the number of thing increase the offence and  the statute of h be if any man oust another with force or enter peaceable and  hold with force that then c g m Edward Fitzherbert entry bro forcible entry g  and in Edward a man bring a writ of forcible entry upon both the point and  exception be take to it because the statute be in the disjunctive so that be  ought to have bring his action upon one point only but there the writ be award  good because if the maker of the statute have a mind that a man shall be  punish who offend in one point a much strong their intent be to punish those  who offend in both point so here if the intent of the maker of the statute be  that be who offend in one word shall forfeit the value of the land a much  strong he who offend in three of the word shall forfeit the value of the land  and then the show of it be not double especial where they all tend to one  effect and meaning and so as to this point two of the justice be against the  other two further whereas the record say that the parliament be hold the say  that day of April hale justice be of opinion that the count be bad because no  that day of April be mention before and then when he say the say that day of  April it have relation to a thing where there be none such but the Lord  Montague be against he in this point for when he say the say that day of c  where in rei in point of fact no such day be mention before the word say be  nugation and abundance and inasmuch as it appear by the record that it can be  refer to any thing because no such thing be mention before it follow that it  be no more than a void and vain recital and abundance which leaves the matter  in the same case as if he have say the that day of April in the year c omit  the word say then as to the statute all the justice agree h S p Brownl h that  it shall not be take by equity for it be a penal statute and although it be  make in avoidance of perjury and oppression yet it shall not be extend by  equity no more than statute that giver attain S I h h b a bro attaint Brownl I  which though they be provide to avoid perjury yet shall not they be extend by  equity as it be adjudge in diverse book and by the statute of Edward it be  declare that if a servant kill his master it be treason king m h pl  Fitzherbert coroner bro treason vide S p c m h h p c hawk p c   b Inst Brownl  king and in h one be arraign upon a indictment for kill the wife of his master  and he confess it and there it come in question whether he shall be draw or  hang only whereupon it be to be see whether it be treason or not and there it  be adjudge by the advice of all the justice of the one bench and of the other  that he shall be draw and hang because it be treason and there it be not take  within the equity of the statute which speak only of kill his master but it be  rather within the word of the statute for master and mistress be the same  thing in effect so that there the take it to be treason be a declaration of  the word of the statute rather than a equitable construction of it and this  case be put by cook justice therefore statute which be make to punish great  offence worthy of punishment and which increase the severity of the punishment  inflict by the commonlaw be penal Plowden er p and shall not be extend by  equity though the word of they may be construe beneficial accord to the l S p  that penal statute shall be take liberal accord to the intent   a b cro c ante  see vin Abr title statute e pl in notorious facts l intent of the maker  thereof but thing which do it come within the word shall not be take by equity  and this be the opinion of all the justice in this point further as to what be  move that the statute speak of pretence right and title in the plural number  hale for the other justice do not speak to this point be of opinion that a m S  p   Litt a m pretence right and title in the singular number be within the  penalty of the statute for the plural number contain in itself the singular  number and more n wing Max ring pl n and therefore the statute of h cap recite  that whereas some people do of late use to forge diverse false deed and  muniment c therefore it ordain that the party thereby grieve shall have his  suit in that case c here the statute speak of false deed in the plural number  yet if a man forge one false deed he shall be punish by the statute as it be  hold in many book so the statute of r cap ordain that none shall make entry  into any land and tenement except in case where entry be give by law yet if a  man enter into one tenement he shall be punish notwithstanding the statute be  in the plural number as in diverse book it be hold so that the plural number  contain in it the singular number and if one right or title shall not be  contain here the effect of the statute will be set aside and also every right  or title Plowden be contain in the last branch by this word any and therefore  for this reason a right or title in the singular number be with in the statute  further as to the point which be move videlicet whether a lease for year be  within the danger of the statute all the justice agree clear a see ante n and  the book there cite a that a lease or promise for year make contrary to the  form of the statute be within the danger of the statute as well as a estate  for life in tail or in fee for the scope and design of the statute be to root  out maintenance and bargain or promise of title and if it shall be lawful to  make a lease or promise or bargain for one year by the same reason it will be  lawful to make it for two year and so for ten or a hundred year and some man  will maintain as much for such a estate as for a estate for life or in a  manner for a estate in tail or in fee and the intent of the maker of the  statute be utter to avoid such maintenance and buy of title and the word shall  be construe most favourable to satisfy the intent of the maker and the word  here be not that none shall bargain c the right or title for then there will  be more colour to say that the word the contain all but the word be any right  or title in which case if he have a fee and promise a lease for year this be a  right or title which be contain in the word any and under this word any the  lesser estate shall be contain in the great as the lesser part shall be in the  great and therefore the statute of h cap ordain that no sheriff shall let to  farm in any manner his county c by these word it be contain that he shall not  let to farm any b S p debate m e S c m h accord per Fineux contra Brownl post  b part of his county for the less be contain in the great and as to the case  put videlicet that the statute of mortmain ordain that no religious person  shall buy any land or tenement c which be intend of the whole estate videlicet  the fee and a lease for year be not within the danger of the same statute and  also as to the case put that the statute of pernor of profit grant that the  disseizees shall have a action against the disseizors or their feoff so that  they take the profit at the time of the writ purchase notwithstanding a feoff  or gift c but yet c S p theol dig lib cap c if the seize or his feoff bad no  other estate than a use for year where the freehold of the use be ill another  and thus take the profit a action real will not lie against he because a  estate for year shall be out of the statute where it be not express mention as  to these Plowden er p case they be not at all like the case here because in  the one case if the reversion remain as it be before then the service and ware  marriage and relief shall belong to the lord and in such case the lease for  year be out of the intent of the statute and in the other case he who take the  profit ought to have a freehold in the use to make a action real lie against  he for a action real do not lie but against he that have a freehold and no  other intent than this can be suppose in the act which give a action against  pernors of the profit but our case here be ground upon another purpose to wit  to avoid buy of title and maintenance which thing be practice as well for a  lease for ear as other estate and therefore a lease for year be include within  the more extensive word and within the meaning of the statute and as to what  be say that a lease for year can be take within the intent of the maker of the  statute because of the largeness of the penalty which create a forfeiture of  the value of the whole land as to this they take it that the great the penalty  be the soon people will avoid the danger of the statute and the word be as  they be it can be intend but they mean the forfeiture of the whole value as  well for a lease as for the fee for which reason it seem to all the justice  that if the lease here be well show to be make contrary to the form of the  statute it shall be within the danger of the statute as well as any other  estate and that the defendant shall forfeit the whole value of the estate in  fee for it further as to the statute the justice vary in the exposition of it  cook justice it seem to I that the lease for year here be within the statute  and that it be not necessary to aver d see ante e and h d it to be a pretence  right for inasmuch as it be show by the count that neither the defendant  themselves nor any of their ancestor nor they by who the defendant claim be in  possession of the land nor of the reversion or remainder thereof nor take the  rend or profit thereof by the space of one year c ergo it be pretence for the  statute make the right of he who have not be so in possession c pretence and  that be the intent of the statute and then to aver that which by the statute  and declaration be apparent be unnecessary for the body of the matter show  that it be a pretence right e h h a per Keble e as if it be lead that the  lessee surrender to the grantee of the reversion it be not necessary to plead  attornment for that be a attornment as well as surrender so here the show that  they have not be in possession nor c ut above show that it be a pretence right  and such as the statute intend and also these word any right or title include  our case for he that make a lease for year claim a right and title so that it  seem to I the lease here be show to be make contrary to the form of the  statute hale justice I be of a contrary opinion in this point videlicet that  the plaintiff have not show the lease to be make contrary to the form of the  statute for every lease for year make where the lessor have not be in  possession nor receive the profit for a year accord to the statute be not  within the danger of the statute f Pulton a more hawk p c same law of a seize  obtain the release of the disseizee or a mortgagor redeem his land bro  maintenance b n c   Litt a f for if one recover by several writ of formedon  land in diverse county and many mile distant he can very well occupy all this  in his hand but he may lease it out well enough and such a lease shall be out  of the penalty of the statute although it be make within the year for it be  reasonable that man shall do to other as they themselves will have other do to  they and therefore it be reasonable that a man may lease his land to which he  come lawful although he have not be in possession for the space of a year and  to say that the intent of the statute Plowden be to restrain such lease will  be too hard a exposition and contrary to all reason and equity but if he be  out of possession then there be good reason to restrain such promise or  bargain for the law presume they can be make without a intent of maintenance  and if the statute have stop before the say clause except c then it have  restrain all person from make any bargain lease or promise but the clause  except c and that which come after it be make for the advantage of lessee and  those who shall take estate as if there be a prohibition the that none shall  Plowden er p go to Paul this restrain all but if afterward it say except be  shall first pay to the mayor of London S this shall be for the benefit of he  that shall go there so here the except c and that which come after it be for  the advantage of those who take the estate but to construe it in such light  that no man shall last his land until he have be first in possession for a  year without interruption will be against all reason but the intent be that a  man shall not demise or bargain his land to any for maintenance except he have  be in possession for a year so that here inasmuch as the plaintiff have not  aver the bargain and lease to be make for maintenance he have do show the case  to be within the danger of the statute for this be the point of the statute  and therefore the statute of Forge of false deed be in the copulative  videlicet for forge and publish a t h a per babington et Paston Fitzherbert  Forge bro m h pl to waver in opinion per Newton Fitzherbert Forge vide m h pl  Fitzherbert ibidem a yet if be publish it only it be within the statute but  there it ought to be aver that be publish the same to trouble the possession  and title of the plaintiff for that be the point of the statute so here the  lease ought to be aver for maintenance that be the point of our statute and  because it be not so it be not show to be within the danger of the statute  Montague chief justice it seem to I that the lease here be not show to be  within the danger of the statute but before I enter into the consideration of  the statute I will lie down what be a pretence right or title and it seem to I  that a pretence right or title be but in one case and that be b Pulton a b  where one be in possession of land or tenement and another that be out of  possession claim they or sue for they that be a pretence right or title for if  one have right or title to land and afterward he come to the possession of the  same land his right or title be extinct or suspend in the land for during the  time that he have the land it be not in be ergo during that time it can be  term a right or title and that such be a pretence right or title be prove by  the statute itself which have a proviso in it that it shall be lawful for any  one be in lawful possession to buy or obtain the pretence right or title of  any person or person to such land c so that when the statute say he in the  possession may buy the pretence right of any other it declare my definition to  be true further I take the statute c Pulton a c that if he who be out of  possession bargain or sell or make any covenant or promise to part with the  land after be shall have obtain possession of it this shall be within the  danger of the statute whether he who so bargain sell or promise have a good  and true right or title or not and in this point the statute have not alter  the law for the commonlaw before this statute be that be who be out of  possession may not bargain grant or let his right or title and if he bad do it  it shall have be void then this statute be make in affirmance of the commonlaw  and not in alteration of it and all that the statute have do be it have add a  great penalty to that which be contrary to the commonlaw before videlicet that  a man shall forfeit the value of the thing bargain or promise c and to avoid  such bargain or promise where a man be out of possession be the only point  which the statute here remedy for to construe the statute that be who be in  possession shall not make a lease bargain or feoff except he have be in  possession or take the profit for a year before will be a hard law and  contrary to all reason and equity and such a exposition of the statute be  never intend by the maker of it for it be always lawful and agreeable with  good reason and policy to permit he who be in possession to make feoff bargain  and lease of his land although he bad not be in possession but a day before d  vin Abr title statute e pl ante d and that which law and reason allow shall be  take to be in force against the word of statute and therefore the statute of  articuli super Chartas cap ordain that no officer nor any other for to have  part of the thing in plea shall take upon he the business that be in suit e t  Edward pl Fitzherbert champerty bro f n b h Inst Sav per cur Leon more hawk p  c finch wing Max ring pl post e yet if the tenant pen a praecipe quod To give  back against he feoff his son and Plowden er p heir apparent this shall be out  of the danger of the statute as it be take in Edward for the son can not be  say a maintainer to the father but on the contrary he be bind to aid his  father as often as he can so that there they will not expound the statute  contrary to what the commonlaw and common reason allow notwithstanding the  word be against it f m Edward in person ring rot hoyland case Inst post wing  Max ring pl vide et notam hawk p c f in like manner the statute of Westminster  cap ordain that in a appeal it shall be inquire who be the abettor and that  they shall render damage to the party acquit yet if the heir abet his mother  to bring the appeal although be be within the word of the statute he shall be  out of the danger of it and so Herle take it in the say case of Edward for  commonlaw and reason say that he shall aid his mother and abet her so there be  a statute which inflict punishment malefactor g stat Edward cap g in to act  sparingly yet if he do h S p adjudge m Edward countess of athol case  Fitzherbert judgement Inst ld raym per Powel I Mod vin Abr title park a pl h  no other trespass in a park than hunt he be out of the danger of the statute  although he be within the word and that by the intent of the statute so here  in our case if it be full within the danger of the word of the statute which  be that a man shall not alien nor make a lease except he have be in possession  for a year before yet we be not to intend that he who make a lease bind fide  and without ill design of any land whereof he have not be in possession for so  long a time shall be within the penalty of the statute because good reason and  equity allow such a one to do it but sir it seem to I that the word ought to  receive such construction as shall not clash with common reason and that be in  this manner videlicet except such person or person Plowden c have be in  possession thereof here there shall be a full point and rest or of the  reversion or remainder thereof this make another full sentence or have take  the rend or profit thereof by the space of one whole year next before here  there be another fall period wing Max ring pl so that these word by the space  of one whole year c shall only have relation to the next sentence before  videlicet to the take of the rend or profit and the clause of be in possession  reversion or remainder be absolute and stand by themselves and be to be thus  take videlicet if one have be in possession reversion or remainder though it  be but for a hour it be sufficient and he may alien without danger of the  statute and this seem to I the best exposition of the statute and yet every  one who have take the profit for a year may not make a feoff or lease for if  the issue in tail of full age marry with a woman discontinuee in tail against  who he have cause of a formedon there if he make a lease or a feoff he be  within the danger of the statute because be take the profit in right of his  wife and he have give the right which he have in he and which be not in his  wife in respect whereof be be in danger of the statute so if be take the  profit as guardian c wherefore it seem to I that the space of a year shall be  refer only to the next clause and not to the possession or to he in reversion  or remainder and if any one think this exposition too hard be ought to  consider that it be not so hard as the other videlicet that none shall make a  lease or feoff if he have not be in possession for a whole year before for  then he that enter Pulton a for mortmain or he that I recover in a writ of  right sur disclaimer may not make a lease within the year accord to that  exposition because neither he nor any by who he claim have be in possession  for a whole year before c whereas there the lord do not claim the land by the  tenant nor by they into who hand it be amortized but by matter in law and  therefore the intent of the statute never be accord to that exposition for if  it shall be so take it will do more harm than good for which reason it seem to  I that the statute shall be intend ut above then in the principal case  inasmuch as the lease be new make and commence at this day none can make title  to it except of late time no more than one may to common or a rend grant de to  make new out of land and therefore the plaintiff ought to have show that the  lease be in Plowden er p possession of some person where the defendant pretend  a right or title to it or that the defendant promise a lease in the land of  which they be not in possession and forasmuch as this be not show there be not  any matter show to be do contrary to the form of the statute for as the matter  be here declare it shall be intend that the defendant be in possession of the  land in respect it be show that they make the lease and be that make a lease  shall be intend in possession and if it be so though they have be in  possession but for a hour the matter be out of the danger of the statute  therefore it seem to I that there be no offence show to be do against the  statute