case lord say and seal case a attorney who be employ in suffer a common  recovery be not privilege from give evidence of the day on which the deed be  execute upon a trial at bar in the court of king bench in a ejectment bring by  the heir at law against the Lord say and seal who claim as heir in tail the  single question be whether or no a common recovery that be suffer in order to  dock the entail be good or not the objection to the recovery be that there be  no tenant to the prcipe to prove the recovery good a deed bear date the  twentythird of October direct the use of the recovery and the fine videlicet  the chirograph of the fine and common recovery be produce the counsel for the  Lord say and seal desire to call one knight a attorney at law to prove that  though modern report the deed be date the twentythird of October it be not  execute until five month after videlicet in march N B the attorney be the  person entrust in suffer the common recovery the counsel for the heir at law  oppose the swear the attorney because as a attorney have a privilege not to be  examine as to the secret of his client cause so the attorney privilege be  likewise the client privilege for the client intrust a attorney with the  secret of his cause upon confidence not only that be will not but also that  though he will yet he shall not be admit by the law to betray his client and  for this Holbeches case be rely upon beside it be say that his evidence will  tend to accuse himself either of ignorance negligence or something worse and  in more be report antedate deed be felony the court be of opinion that  Holbeches case be good law and that a attorney privilege be the privilege of  his client and that a attorney though he will yet shall not be allow to  discover the secret of his client b Lindsai v Talbot bull n p b but  notwithstanding this they think knight evidence be to be receive for that a  thing of such a nature at the time of execute a deed can not be call the  secret of his client that it be a thing be may come to the knowledge of  without his client acquaint he and be of that nature that a attorney concern  or anybody else may inform the court of c see do v Andrews Cowp king v Dixon  burr Cobden v Kendrick term Rep Wilson v rastal land Rep c knight be call in  swear that it be fear the common recovery will be good for nothing because it  be doubt whether there be a good tenant to the prcipe at the time of the  common recovery suffer it be agree upon as the best expedient that there shall  be a fine as of consecrated michaelis levy to make a tenant to the prcipe  which be five month before the modern report fine be actual levy and that  there shall be a deed which shall declare the use of the fine and recovery and  recite the fine to be of consecrated michaelis and that the deed be execute  when the fine be take videlicet in march the chirograph of the fine be then  produce accord to which the fine be levy as of Michaelmas term and if so  without controversy there be a tenant to the prcipe and so all be well the  counsel for Lord say confess that the chirograph of a fine be prima fancy good  evidence that it be a evidence of so high a nature as that no parole evidence  shall be allow to falsify it but they say it may by matter of record to clear  the way they mention the clause in the statute Henry No that order the  enrolment of fine and that of Elizabeth c which direct that the date of the  concord shall be certify by the judge before who the fine be levy modern  report er p then they say that the concord of the fine be certify by Lord  chief justice Trevor to be take upon the second day of march and this evidence  be a evidence of record they offer to falsify the chirograph but to this it be  object that the chirograph of a fine be a record of so high a nature that  unless it be void and not only voidable it can be vacate by any evidence  whatsoever but by writ of error only and that it be not a nullity and void  they cite Ventris and Hobart where a and his wife acknowledge the note of a  fine the twentysixth day of march before commissioner by dedimus power the  wife die the twentyseventh of the same month the twentyeighth composition be  make in the alienationoffice upon a writ of covenant returnable in Hilary term  before and the king silver be enter as of the same Hilary term and modern  report this fine upon debate be resolve to be good in the case of Argenton v  Westover a cro Elizabeth a where it appear by the record that the caption of  the conuzance of the fine be the twentyseventh of march and the writ of  covenant and dedimus power be date the nine of April and it be in a writ of  error to reverse the fine object that the conuzance be take without any  warrant and that by Elizabeth c the caption be always to be certify the court  overrule this exception and will not bear it argue because it will shake  several fine c and it be a common practice that a fine levy in the vacation  may at the choice of the party be a fine of either the precedent or subsequent  term which differ from the case at bar only in this that here there be a  intervene term and whether this will occasion such a difference as that in the  one case the fine shall be good in the other not only voidable but void and  null depend upon the practice of the court of common plea where this matter  shall proper have be canvas though a fine presuppose a writ of covenant yet  the common practice be now to levy they without the case of clerk v ware b  Prec Chan bro case in parliament b be the only case where a fine be attempt to  be destroy by evidence and this be in a court of equity videlicet the chancery  and yet there it be not suffer and this opinion be confirm upon error in the  house of lord as for the statute of Elizabeth c it only extend to fine take by  dedimus and only to regulate not annul fine as the clause c Elizabeth c S c of  any attornment c show for exception let regulan in rebus non To take out the  statute de gift say that such fine shall be Self jure null yet this have be  interpret voidable only and a discontinuance outlawry be say by a Act of  parliament to be Self facto void and yet it have be hold voidable only by writ  of error and if this construction prevail in a outlawry penal in its nature a  strong it ought in thing so much favour as fine modern report the counsel for  Lord say contend the fine to be void by Elizabeth c for if it be interpret to  make fine voidable only it will help none but those that be entitle to a writ  of error and not remainderman who be not so so that accord to this  construction the Act will relieve but half of those it be design to relieve  peer William for the plaintiff the heir at law reply to this that there may be  find some case in law where the party grieve be without remedy and instance in  the case of bail who though as much grieve by a erroneous judgement as the  principal himself can yet bring no writ of error to reverse it the court it be  very harsh doctrine to be lie down in a court of justice that there may be a  wrong without a remedy especial when the present case require no such argument  for if Lord say shall be wrong by our refusal of this evidence he have yet a  very proper and easy remedy videlicet to apply to the court of common plea to  vacate the fine if in truth it be voidable it be agree by both side that it be  common practice for a fine levy in vacationtime to be at the election of the  party a fine either of the precedent or subsequent term but accord to this  doctrine it must be a mere nullity whether the intervene of a term can make  such a difference as that in the one case the fine shall be good in the other  utter void can be discover from the reason of the thing but must depend entire  upon the practice of the court of common plea and every court be judge of its  own rule be a plain argument that that be the proper court to relieve in the  case of clerk v ware a Prec Ch Eq Abr brown c p a such kind of evidence be  refuse even by a court of modern report er p equity videlicet the chancery and  this judgement be confirm on a writ of error in the house of lord modern  report as for the act of parliament mention it seem unreasonable to put such a  construction upon they as that more exception shall make fine null since those  statute which be design to protect and support they than before beside these  statute extend only to fine take by dedimus and though now most fine be in  fact take so yet they be record as take in court and this to prevent question  about caption this case be not to be distinguish in the reason of the thing  from the case of a warrant of attorney to confess judgement and before  judgement confess the party die and judgement be confess after his death in  which case the judgement can be avoid by error only while a fine remain a  record entire credit must be give to it beside this evidence if allow will not  be conclusive for it will not follow that if there be a caption return such a  day there be no other take before for there may be twenty caption there may  perhaps be another fine real have if a caption and covenant be of the essence  of a fine they ought to be give in evidence to prove a fine but this be never  do common recovery although there be no tenant to the prcipes be good by way  of estoppels against the party who suffer they though not against remainderman  stranger c after this there be a deed of bargain and sale enrol produce which  will have make a good tenant to the prcipe have the opinion of the court be  against the plaintiff as it be for they but to this deed this objection be  make that it be a tripartite deed and run to this effect this indenture make  the day of between of the one part and of the second part and of the three  part witness that for and in consideration modern report of the sum of five  shilling to he in hand pay have give and grant c now here they say the person  grant be want have grant without say who have grant and consequent this deed  passes nothing and call therefore make no tenant to the prcipe by way of  enforce this objection it be say that to make a good deed proper word be  requisite there must be a grantor and a grantee and it be not for a court of  law to spell out the intention of the party if the failure have be of a  grantee as it be of a grantor for example thus in consideration of five  shilling pay by a that therefore Lord say do grant without say to who nothing  most certain will have pass where yet the presumption will have be full as  strong and Haslewoods case a vent a be much rely upon if the construction of a  deed be always to be govern by the intention of the party a grant of land to a  man for ever will convey a fee and a grant to a man and his issue a estatetail  as well as in a will the counsel for the plaintiff reply that it be not a  thing to be doubt but there must be a grantor and a grantee but the question  be whether though this deed be not as exact in form as it may have be yet a  grantor may not with certain enough be collect from the whole deed as to  Haslewoods case Ventris be against the judgement beside that be a case upon  plead where form be more strict require and adhere to than in deed and the  case of Trethewy v ellesdon b vent b be clear contrary in the case of Beniger  v Forgassa c Plowd Com c there be a collection of case where name shall be  supply it be a maxim of law that a deed shall never be construe void if it can  by any mean be make good and what the intent of this deed be and that modern  report accord to that Lord say be grantor be prove beyond dispute from several  part of the deed in the case of Langdon v Goole d lev d a man be bind in all  obligation but it be not say to who yet this be supply by the intention the  case of Stanhope v buller e Lutw e be a case even in plead the law will as  much as it can assist the frailty and infirmity of man in their employment who  in draw long deed may easy make a slip the case at bar be the case of a  bargain and sale where the consideration of money carry so violent a  intendment that a grant to a man upon a valuable consideration without say for  his heir shall yet give he a fee which be much strong than the case at bar  because there without such a modern report er p construction there will have  be a quid pro quo a estate for life and the grant will not be altogether void  as here it will the court be of opinion that the deed be good have this be a  tripartite deed without this slip there have be no doubt at all in the case  but the deed be tripartite and have in the singular number and therefore all  the doubt be to who the bath refer deed be to be interpret as much as possible  accord to the intention of the party the case of haslewood v Mansfield a vent  a be a case upon plead where great strictness be require and therefore do not  come up to the case in point the case of Trethewy v ellesdon b vent b do many  be the instance where the penalty of bind be put into very strange and even  false Latin and yet hold good c see salk salk c the case in question be the  case of a bargain and sale and therefore to be interpret more favourable than  a deed by the commonlaw nothing pass by deed of bargain and sale but the use  and the remedy be only in chancery but now statutelaw have pass the estate to  the use the intention of the deed be plain if this deed do not make Lord say  grantor as to he it will have no effect at all who yet seal it accord to the  common rule of indenture the modern report word of the deed be the word of all  the party but Lord say be a party therefore he have grant the truth of the  matter be that it be fear this slip in the deed will be fatal to the recovery  this other contrivance of the fine be judge to be the best way of support it  though the opinion of the court be clear and plain for the plaintiff in both  point yet the Lord say and seal pray a bill of exception