a report of a case argue in the common bench before all the justice of the  same bench in Michaelmas term in the four year of the reign of king Edward the  six between thomas Wimbish and Elizabeth his wife plaintiff and Elizabeth  TAILBOIS defendant in a Writ of trespass bring by the say plaintiff against  the defendant and the record be as follow Trin term Edward rot Lincoln  declaration Elizabeth Tailbois late of Golthough in the county aforesaid widow  be attach to answer Thomas Wimbish esquire and Elizabeth his wife of a plea  wherefore with force and arm the close of they the say Thomas and Elizabeth  she break and their grass to the value of pound there late grow with certain  cattle eat up tread down and destroy and other wrong to they do to the great  damage of the say Thomas and Elizabeth and against the peace of the Lord Henry  the eight late king of England father of the lord the king now note here the  trespass allege to be against the peace of both king when he count of part do  in a former king time and part in the present king time hale on f n b I roll r  Cuddington v Wilkins adjudge note on I finch and against the peace of the lord  the king now c and whereupon the same Thomas and Elizabeth by Roland durant  their attorney complain that the aforesaid Elizabeth Tailbois widow the three  day of August in the thirtysixth year of the reign of the say Lord Henry the  eight late king of England her of the ford the king now with force and arm the  close of they the say Thomas and Elizabeth at Golthough break and their grass  to the value c there late grow with certain cattle videlicet horse ox cow hog  and sheep eat up tread down and destroy the trespass aforesaid as to the eat  up tread down and destroy the grass aforesaid from the aforesaid three day of  August in the thirtysixth year aforesaid until the day of obtain the writ  original of they the say Thomas and Elizabeth videlicet the four day of April  in the first year of the reign of the lord the king now at diverse day and  time continue and other wrong c to the great damage c and against the peace c  therefore they say that they be injure and have damage to the value of mark  and therefore they bring suit c bar and the aforesaid Elizabeth Tailbois by  John poley her attorney come and defend the force and injury when c and as to  the come with force and arm say that she be not guilty thereof and of this she  put herself upon the country and the aforesaid Thomas Wimbish and Elizabeth  his wife do the like and as to the residue of the trespass aforesaid above  suppose to be do the same Elizabeth Tailbois say that the aforesaid Thomas and  Elizabeth his wife their action aforesaid against her ought not to have  because she say that the close aforesaid and also the place in which the  trespass aforesaid be suppose to be do be and at the aforesaid time of the  trespass aforesaid above suppose to be do be acre of meadow and acre of  pasture with the appurtenance in Golthough aforesaid which say acre of meadow  Plowden and acre of pasture be and at the aforesaid time of the trespass  aforesaid above suppose to be do and also from time whereof the memory of man  be not to the contrary be parcel of the manor of Golthough with the  appurtenance in the county aforesaid of which say manor with the appurtenance  whereof c long before the aforesaid time when c one George Tailbois knight  grandfather or the aforesaid Elizabeth the wife of the aforesaid Thomas  Wimbish who heir the same Elizabeth be be seize in his demesne as of fee and  the same George be so seize of the manor aforesaid with the appurtenance  whereof c by the name of George Tailbois knight Lord of kince by his certain  deed indent seal with the seal of the aforesaid George and enrol of record in  the court of chancery of the say late king which the aforesaid Elizabeth  Tailbois here bring into court the date whereof be the eighteenth day of  January in the four year of the reign of the say late lord the king at  Golthough aforesaid give grant and by his same deed confirm to one Richard by  the grace of God then bishop of Winchester William by the same grace then  bishop of Lincoln Plowden er p Thomas Wolsey then dean of Lincoln William  Tirwhit Robert Dimock Robert constable knight John constable then archdeacon  of Huntingdon Edward Derby then archdeacon of stow Thomas burgh junior Robert  Tirwhit numan Markenfield esquire Henry gascoigne and John Ridley clerk the  aforesaid manor of Golthough with the appurtenance among other thing whereof c  to have and to hold the same manor with the appurtenance whereof c among other  thing to the aforesaid Richard bishop of Winchester William bishop of Lincoln  Thomas Wolsey William Tirwhit Robert Dimock Robert constable and John  constable Edward Derby Thomas burgh Robert Tirwhit numan Markenfield Henry  gascoigne and John Ridley their heir and assign to the use of the aforesaid  George Tailbois and the aforesaid Elizabeth Tailbois then his wife and the  heir of their body between they lawful beget and for default of such issue of  the body of the same George and Elizabeth lawful beget then to the use and  behoof of the aforesaid George Tailbois and the heir of the bodyof the same  George lawful beget and for default of such issue of the body of the same  George to the use and behoof of the right heir of the aforesaid George for  ever by virtue of which feoff they the same bishop of Winchester bishop of  Lincoln Thomas Wolsey William Robert Dimock Robert constable John constable  Edward Thomas burgh Robert Tirwhit numan Henry and John Ridley be seize of the  aforesaid manor with the appurtenance whereof c in their demesne as of fee to  the use and behoof aforesaid and the same bishop of Winchester bishop of  Lincoln Thomas Wolsey William Robert Dimock Robert constable John constable  Edward Thomas burgh Robert Tirwhit numan Henry and John Ridley be so seize of  the manor aforesaid with the appurtenance whereof c to the same use the  aforesaid bishop of Winchester bishop of Lincoln Thomas Wolsey William Tirwhit  Robert Dimock Robert constable John constable Edward Derby and John Ridley die  and the aforesaid Thomas burgh Robert Tirwhit numan Markenfield and Henry  gascoigne survive they and hold themselves in the same manor with the  appurtenance whereof c and be seize thereof in their demesne as of fee to the  same use by right of survivorship c at and until the four day of February in  the twentyseventh year of the reign of the say late lord the king on which day  by statute c the aforesaid George Tailbois and Elizabeth his wife be seize of  the same manor with the appurtenance whereof c in their demesne as of fee tail  to wit to they and to the heir of their body between they lawful beget and the  say George and Elizabeth be so seize thereof the same George afterward and  before the aforesaid time when at Golthough aforesaid of such estate of and in  the manor aforesaid with the appurtenance whereof c die seize and the  aforesaid Elizabeth Tailbois survive the say George and hold herself in the  same manor with the appurtenance whereof c and be thereof sole seize in her  demesne as of fee tail in manner and form aforesaid by right of survivorship c  and the aforesaid Thomas Wimbish and Elizabeth his wife claim the manor  aforesaid with the appurtenance whereof c by colour of a certain deed of  demise thereof make to they for term of their life by the aforesaid George  long before the aforesaid feoff by the same George to the aforesaid bishop of  Winchester bishop of Lincoln Thomas Wolsey William Robert Dimock Robert  constable John constable Edward Thomas burgh Robert Tirwhit numan Henry and  John Ridley of the manor aforesaid with the appurtenance whereof c in form  aforesaid make where nothing of the say manor with the appurtenance whereof c  ever pass by that deed into the possession of the say Thomas Wimbish and  Elizabeth his wife enter into the manor aforesaid with the appurtenance  whereof c before the aforesaid time when c upon which possession thereof of  the say Thomas Wimbish and Elizabeth his wife the same Elizabeth Tailbois  afterward to wit the same time when c into the manor aforesaid with the  appurtenance whereof c reenter and the close aforesaid break and the grass  aforesaid in the aforesaid acre of meadow and acre of pasture then grow with  the cattle aforesaid eat up tread down and destroy as it be lawful for her to  do and this she be ready to verify wherefore she pray judgement if the  aforesaid Thomas Wimbish and Elizabeth his wife their action aforesaid against  her ought to have c replication and the aforesaid Thomas Wimbish and Elizabeth  his wife say that for any thing before allege they ought not to be preclude  from have their action Plowden er p aforesaid because they say that well and  true it be that the aforesaid George Tailbois grandfather of the aforesaid  Elizabeth now wife of the say Thomas Wimbish be seize of the manor aforesaid  with the appurtenance whereof c in his demesne as of fee and be so seize  thereof he the aforesaid that day of January in the four year of the reign of  the say late lord the king above say at Golthough aforesaid by his deed indent  aforesaid give grant and confirm to the aforesaid Richard bishop of Winchester  William bishop of Lincoln Thomas Wolsey William Tirwhit Robert Dimock Robert  constable John constable Edward Derby Plowden Thomas burgh Robert Tirwhit  numan Markenfield Henry and John Ridley the aforesaid manor of Golthough with  the appurtenance whereof c among other thing to have and to hold the say manor  with the appurtenance whereof c to the aforesaid Richard bishop of Winchester  William bishop of Lincoln Thomas Wolsey William Tirwhit Robert Dimock Robert  constable Edward Derby Thomas burgh Robert Tirwhit numan Henry and John Ridley  their heir and assign to the use of the aforesaid George Tailbois and the  aforesaid Elizabeth then wife of the same George and the heir of their body  between they lawful beget and for default of such issue of the body of the  same George and Elizabeth lawful beget then to the use and behoof of the  aforesaid George Tailbois and the heir of the body of the same George lawful  beget and for default of such issue of the body of the same George to the use  and behoof of the right heir of the aforesaid George for ever by virtue of  which feoff the same bishop of Winchester bishop of Lincoln Thom S Wolsey  William Robert Dimock Robert constable John constable Edward Thomas burgh  Robert Tirwhit numan Henry and John Ridley be seize in the aforesaid manor  with the appurtenance whereof c in their demesne as of fee to the use and  behoof of the say George and Elizabeth his wife and the heir of their body  between they lawful beget and for default of such issue of the body of the  same George and Elizabeth lawful beget then to the use and behoof of the  aforesaid George Tailbois and the heir of the body of the same George lawful  beget and for default of such issue of the body of the same George to the use  of the right heir of the aforesaid George for ever and the aforesaid bishop of  Winchester bishop of Lincoln Thomas Wolsey William Robert Dimock Robert  constable John constable Edward Thomas burgh Robert Tirwhit numan Henry and  John Ridley be so seize of the manor aforesaid with the appurtenance whereof c  to the same use the aforesaid Richard bishop of Winchester William bishop of  Lincoln Thomas Wolsey William Tirwhit Robert Dimock Robert constable John  constable Edward Derby and John Ridley die and the aforesaid Thomas burgh  Robert Tirwhit numan Markenfield and Henry gascoigne survive they and hold  themselves in the same manor with the appurtenance whereof c and be thereof  seize in their demesne as of fee to the same use by right of survivorship c at  and until the aforesaid four day of February in the twentyseventh year of the  say late lord the king above say on which day the aforesaid George Tailbois  and Elizabeth then his wife be seize of the same manor with the appurtenance  whereof c in their demesne as of fee tail to they and the heir of their body  between they lawful beget as be aforesaid and the say George and Elizabeth his  wife be so seize thereof the same George afterward and before the aforesaid  time when c at Golthough aforesaid of such his estate of and in the aforesaid  manor with the appurtenance whereof c die seize and the aforesaid Elizabeth  Tailbois now defendant survive the say George and hold herself in the same  manor with the appurtenance whereof c and be thereof sole seize in her demesne  as of fee tail as be aforesaid by right of survivorship and the aforesaid  Elizabeth Tailbois be so seize of the manor aforesaid with the appurtenance  whereof c one William Tailbois clerk the five day of July in the thirtythird  year of the reign of the say late lord the king sue forth of the court of  chancery of the say late lord the kin the same Chancel then be at Westminster  in the county of Middlesex a certain writ original of the say late lord the  king in form of a gift in descender against the same Elizabeth Tailbois now  defendant by the name of Elizabeth Tailbois widow concern the aforesaid manor  of Golthough with the appurtenance whereof c direct to the then sheriff of  Lincoln by which say writ the same late lord the king command the same then  sheriff of Lincoln to command the same Elizabeth Tailbois that just Plowden er  p and without delay she shall render to the aforesaid William Tailbois the  aforesaid manor with the appurtenance which John Tailbois of Stalingburgh John  Fulmerley John tourney Henry Morley and Laurence Moine give to Walter Tailbois  esquire and Alice his wife and to the heir male of the say Walter of the body  of Alice beget and which after the death of the aforesaid Walter and Alice and  William S on and heir of the same Walter and Alice and Robert son and heir of  the same William and George son avid heir of the same Robert and Gilbert son  and heir of the same George the son of Robert and George son and heir of the  same Gilbert Robert brother and heir of the same George the son of Gilbert  ought to descend accord to the form of the gift aforesaid to the aforesaid  William brother of the aforesaid Gilbert the son of George the son of Robert  and cousin and heir male of the say Robert brother of the say George the son  of Gilbert as he say and unless she shall do this and the aforesaid William  Tailbois shall make he the then sheriff secure of prosecute his claim that the  same then sheriff shall summon by good summoner the aforesaid Elizabeth that  she may be before the justice of the say late lord the king at Westminster  from the day of saint Michael in fifteen day then next come to show wherefore  she do not do it and that he shall have then there the summoner and that writ  at which say fifteen day of saint Michael before John Baldwin knight and his  companion then justice of the say late king of the bench at Westminster  aforesaid come as well the aforesaid William Tailbois by George pullen his  attorney as the aforesaid Elizabeth Tailbois by Edward Bohun her attorney and  Robert Tirwhit esquire then sheriff of the county aforesaid return the writ  aforesaid to he in form aforesaid direct in every thing serve and execute to  wit that the aforesaid William Tailbois bad find to the same then sheriff  pledge of prosecute that writ to wit John do and Richard roe and that the  aforesaid Elizabeth Tailbois be summon by Richard fen and Henry den whereupon  the aforesaid William Tailbois clerk declare against the aforesaid Elizabeth  Tailbois late wife of the aforesaid George the grandfather upon the writ  aforesaid by the aforesaid George pullen his attorney demand against the same  Elizabeth the aforesaid manor of Golthough with the appurtenance which John  Tailbois of Stalingburgh John Fulmerley John tourney Henry Morley and Laurence  moigne give to Walter Tailbois esquire and Alice his wife and to the heir male  of the say Walter of the body of the say Alice beget and which after the death  of the aforesaid Walter and Alice and William son and heir of the same Plowden  Walter and Alice and Robert son and heir of the same William and George son  and heir of the same Robert and Gilbert son and heir of the same George the  son of Robert and George son and heir of the same Gilbert and Robert brother  and heir of the same George the son of Gilbert ought to descend accord to the  form of the gift aforesaid to the aforesaid William brother of the aforesaid  Gilbert the son of George the son of Robert and cousin and heir male of the  say Robert the brother of the say George the son of Gilbert c and whereupon he  say that the aforesaid John Tailbois John Fulmerley John tourney Henry and  Laurence give the manor aforesaid with the appurtenance to the aforesaid  Walter and Alice and to the heir male of the say Walter of the body of the say  Alice beget in form aforesaid by which gift they the same Walter and Alice be  thereof seize in their demesne as of fee and right by form c in time of peace  in the time of the Lord Henry late king of England the six from the Conquest  take thereof explees to the value c and from the say Walter and Alice the  right descend by form c to one William as son and heir c and from that William  the right descend by form c to one Robert as son and heir c and from that  Robert the right descend by form c to one George as son and heir c and from  that George the right descend by form c to one Gilbert as son and heir c and  from that Gilbert the right descend by form c to one George as son and heir c  and from that George the son of Gilbert because he die without heir male of  his body beget the right descend by form c to one Robert as brother and heir c  and from that Robert the brother of George the son of Gilbert because be die  without heir male of his body beget the right descend by form c to that  William who then demand as brother and heir c and that after the death c and  thereupon he bring suit c and the aforesaid Elizabeth by Edward Bohun her  attorney then come Plowden er p and defend her right when c and say that she  can not deny the aforesaid action of the aforesaid William then demandant nor  can say but the manor aforesaid with the appurtenance be the right of the say  William then demandant nor can say but the aforesaid John Tailbois John  Fulmerley John tourney Henry Morley and Laurence moign give the say manor with  the appurtenance to the aforesaid Walter and Alice and to the heir male of the  say Walter of the body of the say Alice beget as the aforesaid William then  demandant by his writ and declaration aforesaid above suppose and because the  justice of the bench aforesaid will then advice of and upon the premise before  they give judgement thereon day be give as well as to the aforesaid Walter  then demandant as to the aforesaid Elizabeth then tenant before the aforesaid  justice of the bench here at Westminster on the octave of saint Hillary then  next come to hear their judgement thereon because the same justice thereof  then c at which say octave of saint Hillary before the aforesaid John Baldwin  and his companion justice of the say late lord the king then of the bench at  Westminster aforesaid come as well the aforesaid William Tailbois the  demandant as the aforesaid Elizabeth Tailbois then tenant by their atorneys  aforesaid whereupon the premise be see and by the same justice more full  understand it be consider in the same court of the say late lord the king of  the bench aforesaid at Westminster aforesaid that the aforesaid William  Tailbois then demandant shall recover his seize against the aforesaid  Elizabeth of the manor aforesaid with the appurtenance and that the say  Elizabeth shall be nothing in mercy a vide h Edward Fitzherbert amercement t r  Fitzherbert ibidem Bellews c roll Abr h pl   Litt   a   b a because she come  the first day by summons c as by the record of the recovery aforesaid here  remain in court more full appear and further the aforesaid Thomas Wimbish and  Elizabeth his wife by protest that the aforesaid William Tailbois be not  cousin and heir male of the aforesaid Walter Tailbois esquire of the body of  the aforesaid Alice his wife beget for plea further say that the recovery  aforesaid of the manor aforesaid with the appurtenance whereof c in manner and  form aforesaid be bad by covin between the aforesaid William Tailbois and the  say Elizabeth Tailbois now defendant without the consent or assent of they the  say Thomas Wimbish and Elizabeth his wife or either of they and moreover the  aforesaid Thomas Wimbish and Elizabeth his wife say that she the same  Elizabeth now wife of the aforesaid Thomas Wimbish at the time of obtain the  writ original aforesaid of the aforesaid William Tailbois to wit the aforesaid  five day of July in the thirtythird year of the reign of the say late lord the  king abovesaid and at the time of the judgement aforesaid give upon the same  writ be the person to who the interest and title of the manor aforesaid with  the appurtenance whereof c belong after the decease of the aforesaid Elizabeth  Tailbois widow by reason of which premise the aforesaid Thomas Wimbish and  Elizabeth his wife as in right of the say Elizabeth by virtue of a certain  statute make at a parliament of the Lord Henry the seven late king of England  in the eleven year of his reign before the aforesaid time when c enter into  the manor aforesaid with the appurtenance whereof c and be thereof seize in  their demesne as of feetail in right of the same Elizabeth to wit to they and  to the heir of the body of the same Elizabeth lawful beget until the aforesaid  Elizabeth Tailbois widow the aforesaid three day of August in the thirtysixth  year of the reign of the say late lord the king Henry the eight abovesaid with  force and arm the close of they the say Thomas Wimbish and Elizabeth his wife  at Golthough aforesaid break and their grass to the value c there late grow  with the cattle aforesaid eat up tread down and destroy against the peace of  the say late lord the king Henry the eight and against the peace of the say  lord the king now as they above complain against her and this c wherefore for  that the aforesaid Elizabeth Tailbois widow the trespass aforesaid do in the  aforesaid acre of meadow and acre of pasture with the appurtenance above  acknowledge they the same Thomas Wimbish and Elizabeth his wife pray judgement  and their damage by reason of the say trespass to be adjudge to they c Plowden  er p Plowden defendant demurrer and the aforesaid Elizabeth Tailbois say that  the aforesaid plea of the aforesaid Thomas Wimbish and Elizabeth his wife in  manner and form above in reply plead be insufficient in law for the aforesaid  Thomas Wimbish and Elizabeth his wife to have and maintain their action  aforesaid against her the say Elizabeth Tailbois and that she have do  necessity nor be by the law of the land bind to answer the replication  aforesaid in manner and form aforesaid plead and this she be ready to verify  wherefore for want of a sufficient replication in this behalf the same  Elizabeth pray judgement and that the aforesaid Thomas Wimbish and Elizabeth  his wife may be preclude from have their action aforesaid against the same  Elizabeth Tailbois joinder and the aforesaid Thomas Wimbish and Elizabeth his  wife for that they have above in reply allege sufficient matter in law to have  and maintain their action aforesaid against the aforesaid Elizabeth Tailbois  which they be ready to verify which say matter the aforesaid Elizabeth  Tailbois do not deny nor there unto in any wise answer but the say averment  whole refuse to admit pray judgement and their damage by reason of the say  trespass to be adjudge to they c and because the justice here will advice of  and upon the premise 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 e the case Michael term  Edward g t seize in fee feoff other to the use of himself and his wife in  special tail and have issue t and W and die and e his wife survive t have  issue Elizabeth marry to t W and die and afterward W by covin of e his mother  bring a formedon in descender against his mother and she appear at the first  day and W recover by nient dedire and t W and Elizabeth his wife heir to g t  enter by virtue of the statute of h cap and the entry adjudge lawful by the  same statute which say that the recovery be void and it be not necessary to  say that the recovery be execute for inasmuch as it be void it shall never be  execute and Elizabeth the heir aver that she be the same person to who the  reversion belong and do not show how she be heir to it and yet well by some  other contra but all agree that it be a recovery by covin notwithstanding it  be upon a true title and though the cause of covin be not show yet well S c h  bro entry congeab b n c vin Abr title jointure I pl memorandum before my come  to the city this term Morgan and brook sergeant bad argue cook sergeant recite  the case brief in this manner you my lord have well understand how that Thomas  Wimbish and Elizabeth his wife have sue all action of trespass against  Elizabeth Tailbois for a trespass do in land and the defendant say that long  before the trespass suppose one George Tailbois knight grandfather of the wife  of the plaintiff who heir she be be seize of the place where c in his demesne  as of fee and be so seize he by his deed show forth thereof feoff the bishop  of Winchester and other in fee to the use of the say George Tailbois and of  the say Elizabeth Tailbois then be his wife and the heir of they two body  beget and for default of such issue to the use of the say George Tailbois in  general tail by force whereof the say bishop and other his cofeoffees be seize  in fee to the use aforesaid and she show in particular that some of the feoff  die and the other survive they and be seize in fee to the use aforesaid until  the statute of Henry of use be make by force of which the say George Tailbois  and Elizabeth his wife be seize of the say land in their demesne as of fee  tail and be so seize the say George Tailbois die and the say Elizabeth his  wife now defendant survive he and be thereof sole seize in her demesne as of  fee tail by right of survivorship and she give colour to the plaintiff and S  justify and the plaintiff by their replication say that well and true it be  that the aforesaid George Tailbois grandfather of the say Elizabeth the  plaintiff be seize Plowden er p of the say land in fee and thereof feoff the  say bishop and the other to the use aforesaid in manner and form aforesaid and  that some of the say feoff die and that the survivor be seize to the use  aforesaid until the statute of Henry be make in manner and form as be allege  and further they say that after the death of the say George Tailbois one  William Tailbois bring a formedon in descender for the say land against the  say Elizabeth now defendant and recover at the first day by nient dedire and  that the feme tenant be not amerce because she come the first day and the say  plaintiff by protestation say that the say William Tailbois be not cousin and  heir in tail to the aforesaid donee suppose by his formedon and for plea  further say that the say recovery be by covin have between the say William  Tailbois and the say Elizabeth Tailbois now defendant without the assent or  consent of the say plaintiff or either of they and further they say that the  wife of the plaintiff at the time of the say formedon purchase and of the  judgement give be the same person to who the interest and title of the say  land belong after the decease of the say Elizabeth Tailbois by reason of which  premise the say plaintiff as in right of the say wife of the plaintiff by  virtue of a certain Act of parliament make in the eleven year of the reign of  king Henry the seven enter into the say land and thereof be seize in their  demesne as of fee tail in right of the say wife of the plaintiff videlicet to  they and to the heir of the body of the say wife of the plaintiff beget until  the defendant enter and do the trespass and upon this the defendant have  demurrer in judgement and it seem to I that the plaintiff shall be bar for the  replication be not good for diverse cause one cause be because the plaintiff  in the replication have not show certain how the wife of the plaintiff be heir  to the tail but have aver general that the wife of the plaintiff be the same  person to who the interest and title after the death of the defendant belong  and this be not good for the statute of h cap say that upon a recovery by  covin it shall be lawful for the person to who the interest title or  inheritance after the death of such woman belong to enter into the same  tenement and then such person as will enter for such cause ought to show  certain how the title or inheritance after the death of the woman belong to he  and so ought the wife of the plaintiff here as to say that she be the daughter  of a son and heir of the aforesaid George Tailbois and Elizabeth his wife  beget of their body and upon this issue may arise as that a be a bastard or  upon such like matter but here it altogether want certainty and therefore we  may see that where such statute general give a entry to one who shall be in  such degree yet if be will take advantage thereof be shall not show general  that he be the same person but he ought to show how as the statute of r cap  ordain that if a woman ravish assent the ravisher the next of blood of those  ravisher and of they that be ravish to who the inheritance ought to descend  remain Plowden or fall after the death of the ravisher or of her that of so  ravish shall have title immediate that be to say after the rape to enter upon  the ravisher or her that be ravish and yet there if one in the remainder be  next of blood to who will enter upon a woman tenant in tail for such consent  to the ravisher a t Edward pl Fitzherbert assize bro Nosme bro do post per  Montague c j a he ought to show certain how he be next of blood as it be hold  in the assize bring by babington in Edward and it be not sufficient to aver  that he be next of blood without show special how notwithstanding the statute  in general and so the statute of Westminster cap which give receipt upon  default of tenant for life say that upon default of tenant for life they unto  who the reversion belong shall be admit if they chine he/ore judgement there  upon default of tenant for life if one pray to be receive and show that he be  in the reversion this be not sufficient b post per Montague c j b but he ought  to show how he come to the reversion as to say that he lease the land to the  tenant for life or that such a one who lease the land grant the reversion to  he and the tenant attorned and yet the statute be general as our statute be  here and so the statute of mortmain year Edward say it shall be lawful for the  chief lord of the fee to enter into the land so alien within a year from the  time of the alienation and to hold it in fee Plowden er p as a inheritance c  post per Montague c j c and yet if one will entitle himself in plead by such  entry it be not sufficient to say that he be the chief lord but he ought to  show bow as to say that the tenant hold of he by such service c and yet the  statute be general as the statute of h be but nevertheless when one make title  by a statute which have such general word he ought to show in his title the  matter and conveyance special and certain whereupon issue may be take if the  other party choose and so here although the statute be general and say that it  shall be lawful for the person to who the interest title or inheritance after  the death of such woman belong to enter into the same tenement yet it be not  sufficient to aver general that the wife of the plaintiff be the person to who  the interest and title after the death of the defendant belong but they ought  to show special bow and inasmuch as they have not do it the replication be bad  and as to that which be argue the other day to the contrary videlicet that the  defendant in the beginning of her bar have allege that George Tailbois the  grandfather of the wife of the plaintiff who heir she be be seize c whereby  she have affirm the wife of the plaintiff to be heir to he and therefore it be  not necessary to show particular in the replication how she be heir sir as to  that I answer that the defendant by the bar have only confess her foe be heir  general and that be to all feesimples but here she convey herself to her entry  as heir special videlicet as heir to the special tail and as beget of the body  of the say George Tailbois and of the defendant his wife so that the defendant  have not by the bar allege the wife of the plaintiff to be heir to they both  but only heir to the husband videlicet to George Tailbois wherefore that  objection do not overthrow the exception to the replication which be bad for  want of certainty in this point also the replication be not good for another  cause videlicet because it be not allege that execution of the recovery be sue  against the defendant for upon a recovery without execution the recoveror be  not tenant for his wife shall do have dower thereof nor shall such recovery by  the brother make the sister to be heir if he have not execution for without  execution he have not the possession so that the execution make the judgement  full and perfect and the statute which say if a woman by covin suffer a  recovery intend such a recovery as be full and perfect and that be a recovery  with execution which be not here show wherefore c also the replication be not  good for another cause videlicet because the covin be not aver special but  general and then the covin without the special matter of the covin show be not  well aver for recovery be always to be intend true and upon good cause so that  the law give the great credit to they d p Edward a per Finchden Leon d for if  a recovery have be bad by default against husband and wife of the land of the  wife she after the death of her husband can not enter upon the recoveror nor  have any other remedy than a writ of right by the commonlaw as it be prove by  the recital of the statute of Westminster cap until the same statute be make  which give her a our in vita and the reason why she have no other remedy at  the commonlaw than a writ of right be because of the credit the law give to  recovery which be always presume to be true and upon good title e Litt e and  upon a feint recovery against tenant for life he in the remainder have no  remedy before the same statute by reason of the presumption in law of the  truth of the title and the statute de religious devotee which restrain  alienation in mortmain ordain that no religious person by craft or engine do  presume to appropriate to himself any land f Inst f yet if any religious  person bad recover any land by feint title this be hold to be out of the  prohibition and penalty of I the say statute in respect of the truth which the  law suppose to be in the same and therefore the statute of Westminster cap be  afterward make which put a recovery without title in the same plight as a  feoff in mortmain be which statute prove what credit the commonlaw give to  recovery which be always presume to be true and upon good title and so the  recovery here shall be intend true and without deceit unless special cause be  show which the plaintiff ought to show if there be any as to say that he who  recover by the formedon be a bastard Plowden er p or that there be no such  gift in tail make or some such matter which prove the recovery to be without  title and by covin g m h Fitzherbert voucher bro g and if the tenant in a  praecipe quod To give back vouch one of the demandant he ought to show cause  as it be hold in two h for that the law resume he have no cause of warranty  against one of the demandant a much strong he ought to show cause here for in  this point of a recovery the law have the strong presumption of truth h m  Edward pl bro collusion   b post vin Abr title Covin b pl in notorious facts h  and in Edward in a writ of dower the tenant say that long before the writ  purchase one a be seize of the say land until by Plowden the tenant seize upon  who a enter pen the writ judgement of the writ and the demandant say that a  enter by covin to abate his writ and it be there hold by the opinion of the  whole court that the plaintiff plea be not good for inasmuch as the tenant  have show the entry of a by title the demandant may not have such general  averment of covin without show cause so here inasmuch as the law presume the  title of the recovery to be good such general averment of covin be not good  without special cause show and further the plaintiff in their replication have  say that they enter upon the woman defendant and be seize in tail in right of  the wife of the plain tiff and this be not true for although the statute give  a entry yet they can have a estate tail for that can be but where the ancestor  in tail be dead so that the estate which they shall have upon such entry shall  be rather for life than in tail then as to the matter in law it seem to I that  the case here be clear out of the word and penalty of the statute of a cap and  therefore although the statute of h cap have execute the possession to the use  yet the case remain as if the statute of h have not be make and it be as if  the woman bad continue tenant in tail in use and bad suffer a feint recovery  in which case the matter be as it be here she be out of the penalty of the  statute for the penalty of the say statute extend only to woman who have a  estate by one of three way for the statute have three several branch by which  the estate of the woman who be within the purview and penalty of the statute  be express the first branch speak of a woman that have a estate in dower for  life or in tail joint with her husband or sole to herself or to her own use in  any manor land tenement or other hereditament of the inheritance or purchase  of her husband this be all the first branch and I will prove that the woman  defendant here be not within this branch for a estate in dower she bad not nor  a estate for life but a estate tail and the estate tail be not in land but  only in use and then such woman as bath any use ought to have a estate in the  thing out of which the use issue sole to herself or joint with her husband for  the word be that she shall have a estate in land tenement or hereditament to  herself or to her own use and here she have no estate in any hereditament to  her own use but she have a estate tail in the use for hereditament to use and  the use itself be two distinct thing for the hereditament to use be the matter  and substance out of which the use issue and the use be no more than the  confidence of the matter and substance so that the substance and the use be  two several thing and then such woman to who the use be here appoint ought to  have a estate in the tenement or hereditament out of which the use issue but  it may be object that a woman can have a use where she have a estate in the  land hereditament or thing out of which the use issue for the possession and  estate of the thing out of which the use issue suspend the use to this I  answer that true it be so but it be contain in the statute that if she bath a  estate in land tenement or hereditament joint with her husband or sole to  herself or to her own use c so that if she alone have a estate in the thing  then she can have a use for then the use be suspend and so the use can be  refer to a woman who bath a estate sole in the thing out of which the use  issue but it be refer to a woman where the husband and wife have a joint  estate in the land tenement or hereditament for so it may stand together vide  bro feoff all use b n c for two may have land to the use of one of they and so  husband and wife may have land to the use of the wife and therefore the use in  the wife shall be intend Plowden er p where the wife with her husband bath a  possession in the thing out of which the use arise and not where the wife be  sole seize of the thing out of which the use issue and in this manner the  sense of the letter of the statute be full and perfect and every word bath its  apt relation wherefore inasmuch as the woman defendant in this action have not  a estate in the thing out of which the use issue it can be deny but that she  be out of this branch of the statute and for another cause also she be out of  this branch of the statute for the word of this branch be if any woman have a  estate ut above in manor land tenement or other hereditament of the  inheritance or purchase of her husband c so that that which she have ought to  be the inheritance or purchase of her husband and here the use which the  husband bath appoint to he and to his wife be a new thing which be neither the  inheritance nor the purchase of the husband for it commence at present and be  not in be before and so never be in the husband ergo it be out of the word of  the statute and therefore if a man will grant to another a rend out of his  land to the use of the wife of the grantor this be out of the word of the  statute for neither the rend nor the use be in be before so that it be not the  inheritance nor the purchase of the husband S p   a and if a woman have a  signiory in tail give by her husband for her jointure and afterward the  tenancy escheat and the woman suffer a feint recovery thereof against her this  be out of the statute for the land escheat be a new thing which be not the  inheritance nor purchase of the husband and if the husband make a feoff of his  land upon condition to reenfeoff he and his wife in tail the feoff do it  accord the husband die the wife suffer a feint recovery this case be out of  the statute for the condition which be the cause of the gift in tail be a new  thing and when the feoff make the gift in tail the land then be his purchase  and not the inheritance or purchase of the husband for by the feoff the land  be remove out of the possession of the husband and after that it can not be  say his inheritance or purchase wherefore here inasmuch as this use be a new  thing it can be say the inheritance or purchase of the husband and for this  cause it be out of the first branch and so it be prove by these two cause that  the woman defendant be not within the first branch the second branch of the  statute be where a woman have any estate in land ut above give to the Plowden  husband and wife in tail or for term of life by any of the ancestor of the  husband c and the woman defendant here be not within this branch for she have  nothing of the gift of any of the ancestor of her husband and also by this  branch she ought to have a estate in the thing out of which the use issue as  she ought to have in the former branch and that she bad not here so that for  these two cause the woman defendant be not within the second branch the three  branch be where a woman have a estate ut above by any other person seize to  the use of the husband or of his ancestor c and the defendant here be not  within this branch for she do not claim from the feoff for the use be appoint  by the husband at the time of the estate of the feoff make and not afterward  ergo the wife do not claim from they and although the statute of h remove the  possession from they to the defendant be beneficiary and use yet she do not  claim the possession by they but by the statute and be in the same course that  she be before the same statute of h for the statute do not give the possession  in any other course or degree than the use be before but in the very same  manner and form and their the woman defendant here be do within any of the  three branch and so no penalty nor forfeiture ensue for such recovery and  admit that she be within the word of the statute yet the heir in her lifetime  can not enter for the statute have two clause concern the entry the first say  that such recovery discontinuances c shall be void and of no effect and that  it shall be lawful for every person to who the interest title or inheritance  after the death of such woman shall belong to enter into the same premise and  they to enjoy in the same manner and form as he shall have do if no  discontinuance warranty or recovery have be have or make and then I say that  if no such recovery have be have the heir can not have enter until after the  death of the tenant in tail and now the statute say that they to who c shall  enter into the premise and enjoy they in the same manner and form as they  shall have do if no recovery have be bad or make Plowden er p and if the shall  enter and enjoy the tenement in the same manner and form as c and in no other  manner and form then the heir in tail may not enter until after the death of  the tenant in tail and as to the second clause of the statute it be as follow  videlicet it be enact that if the woman all the time of such discontinuance  alienation recovery c be sole that then she shall be bar and exclude of her  title and interest from thenceforward and that the pegson to who the title  interest or possession of they shall belong after death of such woman  immediate after such discontinuance c shall enter into the same tenement and  they shall possess and enjoy accord to his title in they this clause prove one  thing and give a remedy over the other branch before that be to say it prove  that the recovery or discontinuance c which the first clause in the statute  make to be void as before shall be void against the woman as well as against  he that shall have the land after her death for if the woman shall be bar by  the recovery before then this second clause which say the woman shall be bar  and exclude of her title where she be exclude and bar by the recovery or  discontinuance before be vain and surplusage but the first clause make the  recovery void against the woman and this second clause bar and exclude the  woman not against the recoveror but against those who shall have the land  after the death of such woman so that the first clause which say that the  recovery shall be void be explain by this clause as it be say before now the  benefit and remedy which this last clause of the statute give be a immediate  entry to the person to who the title c and a power to possess and enjoy the  land accord to his title and this can be refer to the heir in tail for he have  not any title in the life of the ancestor no more than the son and heir  apparent of tenant in feesimple have in the life of his father for no heir  have any right or title but after the death of the ancestor who have the  inheritance and not during his life and this prove that the statute which say  that such person shall enjoy the land accord to his title can be refer to the  heir in tail who have no title in the life of the ancestor but it shall be  refer to those to who it may reasonable be refer and that be to those who have  title and right in be videlicet they in reversion for the statute recite  tenant in dower tenant for live c and if any woman who be tenant in dower or  tenant for life accord to the statute suffer a feint recovery then he in the  reversion shall enter present and so shall the statute be intend for they have  title in the life of tenant in dower for life or tenant in tail after  possibility c that be to say they have the reversion and the intention of the  statute can be take to respect the issue in tail who have no title in the life  of his ancestor and therefore the statute of Richard cap provide that when  woman assent to their ravisher the next of blood of those ravisher and of they  that be ravish to who c shall have title immediate that be to say after the  rape to enter u on c and the same to hold in state of inheritance c the maker  of which statute well perceive that the issue in tail have no title in the  life of his ancestor and therefore they have he title for the statute say  shall have title to enter c and if the maker of the statute of h bad intend  that the issue in tail shall enter immediate they will have give he title by  the like word as the statute of Richard have do but the end of the clause  which say that they shall enjoy accord to their title express that their  intention be not such for which reason it seem to I that the woman defendant  be out of the penalty of the statute and that the plaintiff may not enter and  therefore they shall be bar Whiddon on the contrary as to what have be say  that the plaintiff ought to have show certain how the wife of the plaintiff be  heir to the tail to this I say that in the beginning of the bar the defendant  have say that George Tailbois be grandfather of the wife of plaintiff and that  she be his heir and then inasmuch as this word heir may be take two way  videlicet heir general or heir special and the replication prove that it be  more advantageous for the wife Plowden to be heir special for this reason it  shall be take that she be heir special for upon the sequel of the matter this  shall be the best for the wife and a plea a h h pl dal pl   Litt b cro c Freem  strange heath Max post a which have two intendment Plowden er p shall be take  most strong against he that plead it b h pl pi bro plead donc Pla heath Max b  as in trespass a release general be no plea for it may be deliver after the  trespass or before and because it have two intendment it shall be take that it  be deliver before the trespass for this be the strong construction against he  that plead it in which case it be no plea c h h b a h bro plead b n c touch of  prece c so if a collateral warranty be plead in bar it be no plea in avoidance  of the warranty to say that be enter for the entry may be in the life of the  ancestor or afterward and therefore it shall be take most strong against he  and that be that the entry be after the descent so here inasmuch as this word  heir have two intendment the strong shall be take and that be heir special  also there be another reason why it be not necessary for the plaintiff to show  how the wife be heir and that be because she have once enter and be seize d  same diversity m Edward pi bro to point out de faits m Edward pi per Finchd m  Edward pi t h pi bro to point out p Edward a per choke p Edward a heath Max  post d and therefore if a executor bring a action of trespass for good take  out of his possession he needs not show the testament because he be once  possess of they but if he have never be possess but have demand the thing then  he ought to show the testament so if the wife of the plaintiff here have bring  a formedon upon the tail she ought to have show how she be heir because then  it have be by way of demand but here inasmuch as she be once seize by entry it  be do necessary now to show how she be heir and if in rei in point of fact she  be not heir then the defendant ought to traverse that she be not heir  wherefore the replication be good notwithstanding this exception then as to  the covin I say it be not necessary to show this certain e   a I finch finch  heath Max wing Max ring pi post e for covin be a secret thing contain in the  heart of a man which by intendment another person can have no knowledge of and  then the law will not force any man to show that f regulan finch finch heath  Max f which it presume lie not in his knowledge g year h b per Lodding m h a  per Paston m h a per strange bro to point out m h a per Brudnel Perkins heath  Max post g and for this reason a woman shall have dower of a rend charge  without show the deed of grant because the deed do not belong to her and if  there be lord and tenant by knightsservice and the tenant make a feoff and  take back a estate for life remainder to his heir and die the lord shall aver  it to be by covin general h see contra that he ought to show the special cause  of his suspicion Inst h h p c hawk p c dalt just cap foe Mod h so a man may  justify imprisonment for suspicion of felony without show any suspicion for  suspicion like covin lie secret bid in the heart of a man I h h Fitzherbert  replication bro collusion property post I and in h in trespass where the  defendant allege in bar that he have buy the good in market overt of one I the  plaintiff say that the say purchase be by covin between the defendant and the  say I general without show any special circumstance of covin and the plea be  admit good and in a praecipe quod To give back bring against the lord of  ancient demesne and against the tenant of the land the lord shall show that he  be lord and that this action be bring against he by covin general king m h pi  Fitzherbert Fauxer de recov bro S p t raym post king but in h in a praecipe  quod To give back where the tenant plead in abatement of the writ that one a  after the last continuance have arraign a assize against he and recover by  action try that be to say by verdict and the demandant say that this assize be  bring by covin between the say a and the tenant to the intent to abate his  writ there it be grant by the whole court that this be no plea without show  cause of Plowden er p covin and I will agree the law to be so and the reason  be because the title be try by verdict of man and his say that it be by covin  shall not be intend true against the verdict but here the recovery be by nient  dedire in which case there be no trial but the nient dedire of the defendant  be the cause of the judgement and therefore in this case and where the  recovery be by default a man shall aver that it be by covin general and so be  the diversity and as to what have be say that execution of the recovery ought  to be show sir this be not necessary for the statute speak only of a recovery  and it be a recovery without execution and therefore if a fine be levy of the  reversion it be a record before attornment be have upon it for quid law  proclaim and per who the condition of a slave issue out of a record and the to  have facias seizinam recite cum a recuperaveri seizinam svan c so that this  prove that it be a recovery without execution wherefore this exception be of  no weight and as to the principal point it seem to I to be within the word of  the statute for the woman defendant have a use in tail of the appointment of  her husband and the husband first make the use which make be the purchase of  the husband and then when the statute of h execute the possession this be in  the same manner as the use be and so within the statute and although it be not  within the word of the statute yet it shall be within the equity of the  statute notwithstanding what have be say to the contrary the other day that  the statute be penal and shall not be extend by equity and he put many case  upon the equity of statute and say it be no sure ground l see post l that a  penal statute shall not be take by equity for in many case we see it otherwise  and also he say that by the entry the wife of the plaintiff shall be seize as  if the tenant in tail have be dead and that be in tail and for these reason he  hold that the plaintiff shall recover sander and Harris argue the next day to  the contrary but I come late for sander have begin his argument before I come  and I be disturb in my place so that I can not for well report all that be say  that day but sander first commence his argument upon the equity of the statute  as I hear and after my come he say that the statute here be penal inasmuch as  it infer a penalty upon they who have the estate before and go in destruction  of the estate before make and take away their power who have the same estate  and abridge and punish they for which reason the statute shall not b the rule  of the commonlaw be take by equity and therefore the statute of Westminster  cap say where any do alien the right of his wife it be agree that from  henceforth the suit of the woman or her heir after the death of her husband  shall not be delay by the nonage of the heir that ought to warrantise but let  the purchaser Plowden tarry who ought not to have be ignorant that he buy the  right of another until the age of his warrantor to have his warranty so that  the statute restrain the commonlaw and say let the purchaser tarry a m Edward  a b bro age t Edward Fitzherbert age Inst   a a yet it be adjudge in Edward  that if he who be the purchaser make a feoff over this feoff shall vouch  because a penal statute make against one person shall not extend to other and  therefore the statute of h cap ordain that the die seize of a seize shall not  take away the entry of he that at the time of such descent have good and  lawful title of entry c except such seize have have peaceable possession  before for five year b S p   Litt a b yet if a abater die seize within the  five year this descent shall take away the entry of he that have right for he  be out of the word of the statute and it shall not be extend by equity  inasmuch as the statute be penal and the word extend but to one person that be  to say a seize c S p   Litt a c and so if tenant for life be seize and the  seize die within the five year and the tenant for life die he in the reversion  or remainder may not enter for he be not a seize to they but to the tenant for  life and also at the time of such scent they have no title of entry but the  tenant for life have and therefore they be out of the word of the statute and  so out of the equity of it and thus we see where a statute which be penal and  abridge the liberty or benefit give by the Plowden er p commonlaw be make  against one particular person it shall not extend to other let we then  consider our own case and I apprehend it can be deny but that our statute be  penal for the cause before give and that the woman here be out of the word of  the statute and therefore I will examine the statute and the statute have  three branch concern the estate of woman who be within the purview thereof the  first be of woman who have any of the estate recite in the statute of land of  the inheritance or purchase of the husband and here the woman defendant be not  prove to have a estate of such land for it be show in the beginning of the  replication that George Tailbois be seize of c in his demesne as of fee and be  so seize make a feoff ut above c and it be not show how he be seize videlicet  by purchase or inheritance and the word inheritance and purchase have two  different meaning d contra Litt king a b   Litt a t Edward a say vide ace m h  pl hale on f n b c d for this word inheritance have respect only to such land  to which a man come by descent as it be well prove by a case in e m h b pl  Fitzherbert brief bro who in vita faux Latin vide post b   Litt a e h for  there a woman bring a who in vita and the writ be how proclaim be I S et heir  svan and it be show that the woman come to the land by purchase of the feoff  of such a one and for this cause exception be take to the writ and it be the  opinion of all the justice that the writ shall f per hale on f n b c it be not  abateable for this cause though inheritance be proper intend b descent and not  by purchase f abate because a purchase may not be adjudge a inheritance by  common intent so that this word inheritance be to be intend a possession of  land or tenement to which a man come by descent only and this word purchase be  intend g Litt g a possession of land to which a man come by purchase or by  gift without recompense and therefore a purchase be always intend by h   Litt  b b h title and this definition stand with Britton and Littleton also so that  inheritance and purchase be two different thing I   Litt b I and agreeable  hereunto the statute of h cap of Forge of false deed speak in the preamble of  those who have land or tenement by purchase or by descent of inheritance c  which statute be in the disjunctive prove that there be a difference between  the word wherefore as I say a inheritance be intend land by descent and a  purchase be intend land by gift or purchase and so by title for if one have  land by seize this be no purchase for a purchase be by title and seize be  without title and therefore where it be show in the beginning of the  replication that George Tailbois be seize in fee this may be by descent by  purchase or by seize and if it be by seize it be out of the intent of the  statute for the maker of the statute will never have make provision for a  recovery by covin against a woman who have land of the assurance of her  husband by seize so that the plaintiff ought to have show how the husband come  to the possession if they will have prove the woman to be within the first  branch for the manner of his come to the land be issuable and for this cause  the woman be not show to be within the first branch and also as it bath be say  the woman ought to have manor land tenement or hereditament to her own use c  so that she ought to have a estate in the thing out of which the use issue  which she bad not here and therefore she be not such a beneficiary and use of  which the statute speak and therefore for both these reason she be out of the  first branch and as to the second branch the woman do not claim any thing of  any ancestor of her husband and as to the three branch the woman defendant  here be out of it for she do not claim any thing of any one seize to the use  of the husband or of any of his ancestor for the feoff be not feoff to use  before the use appoint to he and she do not claim the use from the feoff but  from the husband and the statute of h do not put the thing in any other degree  than it be before the statute so that she do not claim from the feoff to the  use of the husband and therefore the law be as it be put by my brother cook  videlicet if the husband make a feoff upon condition Plowden er p to make a  estate tail to he and to his wife which be do accord this be out of the  statute for the feoff be not feoff to the use of the husband but if the feoff  have be to the use of the husband and upon condition ut above and the feoff  have make a estate tail to the husband and wife this be within the statute for  at the time of the estate make they be feoff to the use of the husband and so  within the letter of the statute and so likewise the case put of the escheat  be good law from whence it appear clear that the woman here be out of the word  of the statute and then inasmuch as the statute extend in word to woman who  have estate express in the statute and the woman here be not such a woman nor  have any such estate it follow that this statute be penal shall not be extend  by equity to the Plowden woman here be a stranger and out of the word of the  statute do more than in the case first put by I where a penal statute make  against a particular person shall not be extend by equity to other and further  although the woman defendant have be within the word or equity of the statute  yet the plaintiff can enter during her life and this I venture to assert upon  the strength of the three branch of the statute which concern the entry the  first branch say that the recovery shall be void and that the person to who c  shall enter as if no such recovery have be have and if no such recovery have  be have then the heir can not have enter in the life of the mother no more can  she now the second clause provide that if the woman be c that then she shall  be exclude c and that the person who c shall enter and shall enjoy the  tenement accord to his or their title and the issue in tail have no title in  the life of his mother and therefore he can be intend thereby and the statute  of rich make a difference as before be well say the three branch of the  statute which be the last proviso ordain that it shall be lawful for every  such woman be sole or marry after the death of her first husband to give alien  or make discontinuance of any such land for term of her life only after the  course and use of the commonlaw before the make of the say Act and then  inasmuch as the statute say that it shall be lawful for every such woman c  this shall be intend a woman who bath suffer such recovery and therefore it  appear to be the intent of the statute to make the recovery void against the  woman and that she shall have power during her life to discontinue ergo during  her life the heir may not enter by force of such recovery so that it seem by  the say three branch that the plaintiff can enter during the life of the  defendant be tenant in tail and as to the covin it seem to I that it be not  well aver for by the replication the recovery be show and the title thereof  and then the plaintiff have not destroy the title but have full confess it for  when a thing be show and be not afterward traverse nor aver special to the  contrary it shall be take to be confess so be it here and the protestation be  not material for when it be contrary to a thing confess by implication or by  express word it be to no purpose and therefore the title show be not destroy  but confess inasmuch as it be not traverse nor confess and avoid and then the  covin be repugnant to the confession for covin and good title be mere contrary  a m Edward bro collusion ante b per cook   b vin Abr title Covin b pl in note  a and this be prove by the say case in Edward where in dower the tenant show  that he have seize one a long before the writ purchase who have enter pen the  writ judgement of the writ and the demandant say that a enter by covin to  abate his writ and there by the opinion of the whole court the plea be not  good for inasmuch as the demandant have not deny the title of a be can not  have the general averment of covin for it be repugnant to the thing confess  and so if a man marry a woman discontinuee in tail and afterward in a formedon  he and the woman confess the action if the title of the formedon be show and  the confession it can be aver that be marry the woman or suffer the recovery  by covin for there can be no covin if the title be good and if no wrong be in  he that have the title b t h b bro remitter per Englefield et porting say  justice wear down et vide contra   a jenk pl lane post a vin Abr title  remitter c pl b and in h where one seize the discontinuee of tenant in tail  and feoff the issue in tail within age be shall be Plowden er p remit and by  the better opinion the seize by the seize aver without make the issue privy  may not hinder the remitter inasmuch as the title be not deny whenever  therefore the title be confess covin can be general aver without show a  special wrong do in he that have the title and here no wrong be show to be do  but a nient dedire by covin and confession whereas nient dedire be not bad if  the title be good for if the title be not good the party be not drive by law  to maintain it and to stand in defence of it for that will be contrary to good  conscience because a yes non declinabi legitimate and therefore confession of  a action or nient dedire be not ill if the title be good and then when the  title be confess to be good and the nient dedire be aver to be by covin and to  be bad this be mere repugnant to the title which be confess to be good but be  that will be aid by covin ought to destroy the title or else to confess the  title and show a wrong do afterward in come to it c m h pl bro collusion  Fauxifier de recov receipt p Edward b Fitzherbert receipt c and therefore if a  tenant for year will be receive to defend his term by the statute of  Gloucester cap it be not sufficient to show that the suit be bring by covin  but be ought to show how the title be not good as if it be in a writ of entry  sur seize he ought to traverse the seize as in many book it be adjudge or if  be confess the title to be good then he ought to make he that have the title  privy d ass pl Fitzherbert Fauxifier de recov bro collusion remitter d as in  ass where it be find by office that one f who have good cause of action of ad  boundary who praeteriit against a infant by descent cause one h to seize the  heir by covin against who he recover by his writ of entry ad boundary who  praeteriit there upon this office find the king of who the land be hold have  restitution of the land during the nonage of the heir notwithstanding the plea  and averment of f in maintenance of his title e m h b ass pl bro Fauxif de  recov e so that although the title be good yet if covin be practice by he that  have the title in come to it he shall not be remit and this ought to be show  by he that shall take benefit by it or otherwise be make to appear f ass pl  Fitzherbert verdict bro collusion dures f and in ass in assize by a abbot it  be find for he and that there be no collusion and it be pray by the king  sergeant to inquire if the abbot have release the assize say that the abbot  without his convent by duress do to the abbot by take his cattle bad release  all his right to one a name in the writ purveyor to the king and it be inquire  whether it be by duress of imprisonment and the assize say that it be not and  there it be hold that although the release be find which prima fancy import  covin yet the king shall not have the land during the life of the abbot  because the special matter Plowden there be and ought to be find which prove  the release void and so no collusion a m h Fitzherbert traverse bro collusion  a and so in h the king may not have benefit of collusion find general upon the  statute of marlbridge cap without the special cause thereof for which reason I  say that if the king shall not take advantage of collusion general find  without the special cause show a much strong a common person shall not take  advantage of it especial where the title be confess to be good and for these  cause it seem to I that the covin be not here well aver without the special  cause show and he argue further that execution of the recovery ought to be  show for if the tenant in tail die before execution the issue in tail shall  falsify this recovery for without execution it be no discontinuance and  therefore execution ought to be show and be argue also that it ought to be  show how the wife of the plaintiff be heir to the tail and that she can not be  seize in tail and that the statute here ought to be plead certain and that the  place of the make of it ought to be show and for these cause be hold the  replication ill and that the plaintiff shall be bar Harris argue to the same  purpose and he also take the law to be that there can not be covin where the  title be good except a wrong be do by he that have the title and this ought to  be show for here inasmuch as the title be confess to be good in that it be not  traverse nor confess and avoid this recovery may not be aver Plowden er p to  be by covin for such averment be repugnant in itself and it be inconsistent to  say that b do right by covin for if right be do and no wrong then there be no  covin for covin be always take in evil parten and then if the title be good as  the plaintiff have here confess it be the nient dedire be well do for if the  woman defendant shall stand in defence against a good title she will act  contrary to good conscience and for this reason the averment of covin be  repugnant to the former confession and the statute be never intend to punish  or defeat all recovery by reddition or nient dedire but only all such recovery  as be upon a feint title and a recovery upon good title where no wrong be do  be out of the danger of the statute and here the title be confess to be good  and then the confession be no wrong and without wrong there can be no covin  ergo the covin be repugnant and because the title be not deface in any certain  point the averment of covin be not good and as to the statute he take the case  here to be out of the word of it for the reason before show and as to the  second clause of the statute touch the entry upon the woman be sole at the  time of such recovery which say that the woman shall be bar and exclude of her  title and interest in the same land whereas the recovery before bar and  exclude the woman he take it that the word be not put there in vain and the  intent of these word as it seem to he be thus videlicet before the statute  woman will have suffer feint recovery to the use of themselves for their life  and after to the use of other stranger and whereas they shall have have the  use before now the statute have take away the use and exclude and bar their  title and interest videlicet the use which they shall have have and so inflict  a penalty upon they but do not give any entry to the heir in the life of the  tenant in tail for the first clause be that they shall enjoy the tenement in  the same manner and form as they shall have do if no such discontinuance  warranty or recovery have be bad or make and if no such recovery have be bad  then the heir shall not have enter upon the tenant in tail until after his  death no more shall he now and the second clause be ut above and that the to  who c shall enter and enjoy accord to his or their title therein and the title  of the heir be not until after the death of the ancestor and not before and so  be it in the case here and accord to this exposition the say word videlicet  that the woman shall be bar and exclude and the other word also may stand  together and in this sense he take the statute and note he argue to the same  effect with the other before he as to all the rest of the point that be move  at another day Molineux justice argue it seem to I that the plaintiff shall  recover first as to the covin it seem to I that the plaintiff need not show  special cause thereof for there be a diversity between covin apparent and  covin not apparent for to aver that which be b kelw pl Leon per Yelv arguendo    b   b   a   Litt b Mod ld raym heath Max wing Max pl post per Montague CJ b  apparent be vain as to aver special that a horse I have buy which have no eye  be blind be in vain because it be apparent c   b per curian c and when the  tenant feoff his son within age by collusion the lord shall seize he for his  ware and shall not be force to show this collusion special and so here it be  in vain to show the collusion special because it be apparent for the woman  defendant when she be implead come at the first day and therefore be not  amerce and also she be not essoigned nor have the view and she lose her other  advantage which the law give her by which act there appear a voluntary assent  in her and covin apparent and then to aver that special which appear by the  record be in vain d Inst d and the statute of Westminster cap recite that the  law be that if the husband will confess a action the wife shall have dower by  the commonlaw for it be intend by the law to be covin apparent but if the  recovery have be by default it be doubtful e m h pl Fitzherbert Fauxer de  recov t raym ante post e but here if the action have be try by verdict of man  then the cause of covin ought to be show for the law give credit Plowden er p  to the verdict f same diversity p h pl Fitzherbert supersedeas bro attaint b n  c roll Rep finch finch vin Abr title supersedeas m pl f and therefore if a man  bring a attaint he shall not have a supersedeas for the law presume the  verdict to be true till the contrary be try which prove what credit the law  give to the verdict of man but upon error in faint or in the record the party  shall have a supersedeas for the law judge indifferent of the truth or  falsehood thereof and therefore the party shall have a supersedeas but not  upon attaint for the cause aforesaid videlicet for the credit give to the  verdict and so covin which be aver in avoidance of a trial by verdict ought to  be show certain and the averment of covin general be good for another reason  videlicet because the statute speak g roll r post g general of recovery by  covin as the statute of h cap say that if any recovery be plead in bar against  the plaintiff in a action popular the plaintiff may aver that the say recovery  be by covin and there by the generality of the statute the party may aver the  covin general so here and sir the statute here be general prohibit covin in  recovery upon good Plowden title as well as upon false or feign title for the  statute be general and then it follow that the covin general show be good  without falsify the title and as to the other exception videlicet the entry  upon the recovery this be not necessary to be show because the statute speak  of the recovery only and it be a recover without execution and the statute  intend recovery without execution as it be prove by a proviso in the statute  which say that the say statute shall not extend to any recovery to be have  except where such woman be then alive and then take the issue and profit of  the say land or some other to their use c and if they then take the profit it  follow that execution be not have and so the statute extend to such recovery  before execution and as to the other exception which be take videlicet because  it be not allege how the wife of the plaintiff be the person who c sir as to  this it be not at all necessary for that the statute be general give the  averment general and beside inasmuch as she have allege that she herself be  the person to who the interest and title after the death of the woman  defendant belong and the defendant have demurrer upon it although the  replication in this point be vicious before yet the demurrer have make it good  for a demurrer be a confession a see ante and the book there cite a of the  matter of fact before allege and so the demurrer which be a matter ex post  facto have make the plea which be bad before to be good now b see this and the  next case hold per cur m h a bro verdict h a t two h a b per Brian m h b per  Yelv Fitzherbert issue b as in a praecipe quod To give back if the tenant  plead nontenure the day of the writ purchase it be no plea for he may be  tenant afterward but if issue be join upon it and it be find that he be tenant  the day of the writ purchase this have make the plea good for the reason why  it be bad be now disprove so in debt against executor if they plead nothing in  their hand the day of the writ purchase without say or ever after the plea be  bad but if issue be join upon it and it be find that they have asset now the  issue which be bad be by the verdict make good so here the plea which be bad  be make good by the demurrer which be a confession of the fact for the reason  why it shall be bad be now confess to be good and so the say exception be of  no weight and as to the matter it seem that the case be within the word of the  statute for inasmuch as it be here allege that the husband be seize in fee by  this it be prove that the inheritance be his for every feesimple which a man  have be his inheritance and then she have a use in the inheritance of her  husband and he argue as if these word in the first part of the statute  videlicet to her own use have be in use and to such effect he take they as I  apprehend he and then be maintain that the woman hold the inheritance of her  husband that be to say his land in use joint with the husband and so within  the word of the statute and if it be not within the letter of the statute then  he argue that it shall be withinthe equity and intent of it and he Plowden er  p make no question but that the heir in tail shall enter c S p roll r per  Hobart CJ c present and oust the woman defendant and so he hold that the  plaintiff shall recover hale justice to the same purpose and as to the covin  the replication be good without show the cause thereof for first it be to be  note that the statute be general for it be if woman by covin suffer any  recovery c which general word prohibit covin in recovery upon good title as  well as upon bad title and restrain that which be lawful before for at the  commonlaw the woman name in this statute may lawful make a release to the  disseizee with warranty or such a woman be beneficiary and use may make a  feoff or do other act at that time lawful which now the statute prohibit so  that although a recovery upon good or bad title have be heretofore without  punishment notwithstanding they have be by covin yet the statute now prohibit  the covin as well where the action be upon good title as where it be upon bad  title and such be the intent of the maker of the statute d vin Abr title Covin  a pl d for if a woman have for her jointure a estate tail accord to this  statute with warranty and have be implead by action upon good title mid by  covin hadconfessed the action this be clear within the compass of the statute  by the intent of the maker of it for although the title of the action be good  yet if she have vouch and recover in value this recovery in value shall go to  the benefit of the issue in tail which now her covin have destroy and so  although the title be good yet this covin shall bring the woman within the  penalty of the statute and therefore covin may be e post per Montague CJ e  where the title be good f wing Max ring pl f for the maker of the statute  consider the frailty and inconstancy of woman who may easy by flatter word be  delude and entice to covin and therefore they ordain against they a penalty as  a bridle to their inconstancy and will not make they who have so little  discretion judge of the goodness or badness of the title of action but  prohibit their covin for which reason one may aver the covin general for if  the title be good then there be no special cause of covin which may be allege  but it shall be aver general as in the case before put a man shall aver  general that the recovery in action popular be by covin for there can be no  special cause of covin there and so by the statute of Richard cap which ordain  where tenant for life be implead be of covin with the demandant that the  tenement be recover he in reversion shall be receive c g m two h a Fitzherbert  receipt bro t h a pl Fitzherbert receipt bro m h b vin Abr title Resceipt a pl  in notorious facts h roll r ante g there he shall say that the tenant for life  plead faint and he shall pray to be receive and this cause general shall be  good by reason of the generality of the statute for whether the title of the  action be good or ill yet if the tenant be of covin with the demandant the  reversioner shall be receive and then the special cause of covin or feint  plead shall not be show in respect of the generality of the statute h so that  where statute speak of covin general it shall be show general but otherwise of  covin at the commonlaw and if the maker of the statute of h have only intend  recovery by feint title they will have express give the penalty to covin in  recovery upon feint title for it will have be a great oversight in they to  have speak of covin in recovery general when they be only intend covin in  faint recovery but that be not their sole intention for the issue in tail may  falsify a feint recovery by covin before but whether the title be feint or  good the covin be only prohibit by the statute and Plowden covin may alter the  matter where the title be good a t h b per six justice against two   a jenk pl  lane wing Max ring pl vin Abr title remitter c pl contra ante a as in the say  case of h where one seize the discontinuee in tail by covin to the intent to  feoff the issue in tail within age who have no knowledge of the covin the  feoff shall not be there remit by the better opinion notwithstanding his good  title and this be because of the covinous intent Plowden er p b   a   b cro c  Fitzherbert v Fitzherbert wing Max ring pl b and there it be put that if my  ancestor seize I to the intent to make a feoff with warranty to bar I although  the warranty be make month afterward yet it be a warranty which commence by  seize so that the intent give a different effect to the Act c m Edward a  Fitzherbert dower bro Fitzherbert faux de recov bro collusion ass pl per  knivet bro remitter ass pl bro faux de recov m h b m h b m Edward pl bro  collusion Perk roll Abr pl   Litt a b   a   a   a   b roll Rep finch finch  post c and if a woman have good title of dower if she be of covin that the  tenant shall be oust by one against who she recover yet she shall not bold it  but shall be a disseizoress and so covin may be here though the title be good  and as to that which have be say a yes non declinabi legitimate true it be d  see the opinion of Hussey and Brian p h b bendl wing Max ring pl d but when  truth be mix with covin as a noxious herb and covin with truth this  conjunction and mixture make the whole unsavoury and the goodness be pervert  to wickedness and the covin here show itself apparent for it appear by the  record that the woman defendant be implead in the first suit have not view  voucher essoign nor other delay which every one that be implead upon good  title may with safe conscience take as advantage give by the law and therefore  that which appear here need not be aver so that for these cause the covin be  well aver without special cause show and as to the other exception videlicet  that execution of the recovery be not show this be not necessary to be declare  for the statute say that the recovery shall be void and then it be not the  intent of the statute that execution shall be sue upon a void recovery for  which reason the recovery show by itself be sufficient then as to the other  exception videlicet e see b n c Leon Gouldsb hob hut e that it be not show  certain how the wife of the plaintiff be heir sir this be not necessary for  four cause one cause be for that the statute be general videlicet it shall be  lawful for the person to who c to enter so that the statute be general give  the party a general answer accord to the statute and therefore if a statute be  make that if any woman consent to a ravisher the parson of the parish where  such woman dwell shall enter and hold to he and to his successor there if any  such parson convey to himself title of entry he shall show the consent to the  ravisher and shall show that he be parson and that be ought to enter and be  needs not show how he be present institute and induct parson because be shall  give a answer as general as the statute itself be and the statute of r cap  ordain that none make entry into land and tenement but in case where entry be  give by law there the writ upon this statute and the count also shall be  general videlicet that he have enter into land and tenement where the entry be  not lawful and the plaintiff shall not show any title in himself or cause why  the entry of the defendant be not congeable but as general as the statute be  so general shall the writ and count be and so the statute of h cap ordain that  none shall enter into land with forcible hand there the writ and the count  shall be general videlicet that the defendant with forcible hand bath expel  and seize the plaintiff of his freehold and he shall not show title to the  freehold nor in what manner or of what kind the force be and this id by reason  of the generality of the statute and the statute of f Westminster cap f  maintenance ordain that none shall maintain any quarrel c there the writ and  count shall be general videlicet that the defendant have maintain such a one  in a certain transgression and he shall not show special what trespass c and  this be because of the generality of the statute so here inasmuch as the  statute be general the averment shall be general for which reason it be well  aver the second cause to prove the averment good be for that if the wife of  the plaintiff ought to show certain how she be heir yet it may be that another  be now heir and yet she shall bold the land as put the case that the wife be  enseint with a son at Plowden er p the time of the death of her husband and  before the son be bear the wife suffer a recovery by covin and the daughter  now plaintiff enter and afterward the son be bear now he be heir and yet the  daughter shall hold the land during the life of the wife because she be then  in a thing naturan and take the advantage which be then give to her alone and  she shall hold it and the son bear afterward shall not recover it of her no  more than in the case in h g t h Fitzherbert devise bro descent do wing Max  ring pl g where a man devise land to one for life remainder to the right heir  male of the devisor and to the heir of his body beget and tenant for life die  and the next heir to the devisor be a woman enter and afterward she have a son  and there it be hold by the better opinion that the son shall not oust the  woman because the son bear afterward shall not take away the land before vest  in the woman as heir for default of such a person then in a thing naturan to  take the devise and so here the wife of the plaintiff may be a daughter or the  issue of a daughter and may enter before a son be bear in which case be shall  hold it during the life of the tenant in tail and no long for this statute  have not destroy the tail but the intent of it be to preserve the tail and  then if the wife of the plaintiff ought to show how she be heir there be a son  bear et above thereby she will give the defendant a occasion to show that the  son be heir which will be a mean of join issue upon that which be not issuable  for the matter may well stand together and yet the daughter shall bold the  land so that this will be a apparent contrariety in the face of the court and  for this cause the plaintiff shall not be drive to show how she be heir the  three cause to prove this general averment good be for that it may be that be  who have cause to enter upon a recovery by covin may have one two or more  cause as if a lease for life be make to a woman for her jointure accord to  this statute remainder for year remainder for life he in the remainder for  year make he in the remainder for life his executor and die the woman tenant  for life suffer a feint recovery he in the remainder for life be also executor  enter if afterward in plead he in the remainder may not say that he be the  person to who c but shall be drive to show special bow then he shall show  double matter and so the cause show will be double or perhaps Triple which  will much inveigle the court and also if he shall be force to Plowden bold  himself to one cause then it will be a estoppel to he at another time to say  that he enter for another cause which will be mischievous to he wherefore the  averment general that she be the person to who c be good without show how the  four cause to prove the general averment good here without show bow c be for  that the wife of the plaintiff be once in possession so that the estate in the  thing be execute and upon this the plaintiff have bring a action of trespass  in which case they shall not plead so special nor be force to show as much  certainty as if they be demand the execution of a thing a see ante d and the  book there cite see cro I Cults v Bennet a and therefore if administrator  bring a action of trespass for good take out of their possession they shall  not show the letter of administration otherwise it be if the action be bring  for good take in the lifetime of the intestate for there they never have any  possession of the thing but it be to be execute so if a lease be make for life  remainder in tail and he in the remainder be seize after the death of the  tenant for life his issue shall have a formedon and shall declare upon a b h h  b per porting   a wing Max ring pl post b immediate gift and shall not show  the c h a bro to point out ass pl per Norton ass pl per Lord m h a Fitzherbert  to point out defaits bro formedon nugation post l heath Max c deed thereof  otherwise it be d h h pl per Brian f n b c bro to point out ass pl per Lord d  if it be to execute the same so here inasmuch as the plaintiff be once seize  they need not show how heir as they ought to have do if they bad seek to  execute the thing and therefore in this point the replication be good and  three objection have be make Plowden er p to the contrary which I will answer  first it have be say that if the defendant shall answer and say that the wife  be not the person to who c this issue will be too incertain to be try sir as  to this I answer that in many case issue shall be join upon as great a  incertainty as this be here for in trespass if the defendant will say it be  his freehold the plaintiff may say it be his freehold and traverse without  that that it be the freehold of the other this issue be good and shall be  receive notwithstanding there may be many way to prove it and so although it  be in a manner incertain how it be his freehold yet the issue be good so in  waste no waste do or in trespass not guilty be good issue and yet they  comprehend no certainty e t h Fitzherbert repeat bro traverse e and in  trespass for good take the defendant justify as joint executor with the  plaintiff to I S and that the good belong to the testator c the plaintiff say  that the say testator devise to he all his good which remain after the legacy  pay and show that be make such legacy which be all his legacy and that they be  pay and that afterward the plaintiff be possess of the good as of his own  proper good until c and the defendant say that the testator make such a legacy  to such a one which be not yet pay without that that the legacy show by the  plaintiff be all the legacy c and this be hold a good issue and yet whether or  no all the legacy be pay be a incertain issue but nevertheless the issue be  hold good f p h pl bro issue join repeat f and so if one counterpleads a  voucher videlicet that neither he nor any of his ancestor ever have any thing  c be ought to say and of this he put himself upon the country so that the  issue be join present upon a incertainty and the like be do in many other case  and so be it here second it be object that if it be show certain how the wife  of the plaintiff be heir the defendant may say that she have a brother sir to  this I have already give for answer that so it may be and yet the wife of the  plaintiff shall hold the land during the life of the woman defendant and it be  also say that the defendant may say that the plaintiff be a bastard sir to  this I say that the defendant may not have such nor any other answer to the  cause no more than upon receipt of he in reversion for that ought to be show  but it be not traversable no more shall the cause here be wherefore this be  sufficient answer three it be object that plead ought to be certain to every  intent which the replication here be not in this point sir this not so for in  trespass his freehold be a good plea and yet it be not certain to every intent  for it may be that the plaintiff have a estate for year in which case he shall  punish the defendant notwithstanding it be his freehold and so seize by I S to  the defendant who feoff the plaintiff upon who the defendant enter be a good  plea and yet it may be that the defendant release after the seize so that  certainty in plead be not always requisite g p h pl Fitzherbert repeat bro  trespass g and there be a case where tenant at will bring a action of trespass  against one continuando c and recover damage by award and yet the replication  in which the estate at will be first show be not certain for he show in the  replication that such a one be seize and lease at will c in which case it may  be that he have determine his will afterward but yet the replication be  adjudge good notwithstanding the incertainty so shall it be here  notwithstanding any of these three objection another objection be make to the  replication because the plaintiff have say that upon their entry they be seize  in tail in right of the wife of the plaintiff sir this be well enough say for  they have say quorum premissorum pretense which clause refer to the whole  matter videlicet to the statute and to that which be express in the answer and  in the replication and the defendant have say in her answer that the wife of  the plaintiff be heir to George Tailbois and then inasmuch as the defendant  have confess her to be heir and the statute give the entry to the heir special  videlicet in tail and the averment be that she be the same person ut above  which be to be intend in tail it seem to I that the plaintiff shall be say to  be seize in tail in the same manner as if the defendant have be dead for the  statute say that the person to who c shall enter and enjoy accord to his title  and upon the whole matter the tail be show to be their title and thereof they  shall be seize and in trespass if the defendant will say that I S the father  of the plaintiff who heir Plowden er p he be lease the land to the defendant  for year by deed which he show forth in which there be a condition to reenter  for default of payment of rend and the deed be enter verbatim it be sufficient  for the plaintiff to say that the rend be in arrear to he at such a day and he  enter for default of payment and this replication be good without show that he  be heir to the father and that the reversion descend to he c for upon the  whole matter disclose by the plaintiff and defendant his entry appear to be  lawful so here upon the whole matter the estate videlicet the tail appear and  therefore the replication be good Plowden and as to the exception take because  it be not show certain whether it wonder S a n inheritance or purchase sir  this be not material to be show for it shall do be intend to be by seize  except it be so show and as to the exception take because they have do plead  the statute certain nor the place where it be make sir this be not necessary  for it be a general Act of which all people be bind to take notice and  therefore it be not necessary to show it certain quod all men justice to go  away then as to the statute it seem to I that the woman defendant here be  within the word of the statute and if she be not yet she be include within the  equity of it for first the word be that if any woman who have a estate in  dower for life or in tail joint with her husband or sole to herself or to her  own use in any manor land c these word may be take where she have a use in  land or land in use which be all one and these word which be obscure be  explain by the word follow in the statute which be that if such woman suffer  any recovery of the same land against they or any of they or any other seize  to their use or to the use of any of they accord to the form aforesaid that  then c which word videlicet or any other seize to their use full declare and  explain the sense and manner in which the word aforesaid be to be take which  be that those woman that have a use shall be within the word c for a estate in  use be not mention but in one place in the premise of the statute videlicet  where it be say or sole to herself or to her own use for the other clause  which speak of a use videlicet or by any person seize to the use of the say  husband or of his ancestor be to be intend where the thing out of which the  use issue be give videlicet the demesne so that a estate in use be not mention  or intend by this clause nor in any other clause before it but only in the say  clause which say or sole to herself or to her own use and then if this clause  only speak of a woman beneficiary and use and the say clause after which speak  of recovery bad against woman or any seize to their use or to the use of any  of they be only refer to this it can be deny but that the case here where the  woman have a joint estate in tail with her husband in use of land of the  inheritance of the husband be full within the word of the statute and it be to  be note that this statute be make within year of the statute of I Richard cap  which ordain that the act of beneficiary and use shall bind he and his feoff  and perhaps some who be maker of the say statute be also at the make of the  statute of two h and therefore they well consider the effect of the first  statute which be that a recovery have against tenant in tail be not good long  than during the life of the tenant in tail and then if the statute of h shall  ordain no other penalty than only to make the recovery void against the issue  and that they shall enter as if no such recovery have be then the statute will  be in vain for it will provide only for that which be provide for before but  the statute have a quite different intendment for it make that which be lawful  before to be now unlawful and if tenant in tail of land have suffer such a  feint recovery as in our case be allege this have be avoidable by the issue in  tail as it shall be by the issue in tail in use and then inasmuch as the  tenant in tail in use may do as great prejudice as tenant in tail in  possession and no more and they be in equal degree it seem the intent of the  statute be to provide as well for the one as the other and so the intent a vin  Abr title statute e pl in notorious facts a shall assist the obscurity of the  word in the construction of the word themselves and if she be not within the  word of the statute yet the equity of the statute will extend to her for  although this statute restrain a principle of law in that it will not suffer  tenant in tail to bind their issue by recovery or warranty c yet it shall be  extend by equity inasmuch as it be make in restraint of the liberty which the  commonlaw give to the prejudice of other and upon this ground there be many  such statute Plowden er p extend by equity as the statute of marlbridge cap  speak of those that feign false feoff of their land which they will lease for  term of year to defraud the chief lord of their ware which statute speak only  of estate for year and feoff yet a lease for life or a gift in tail to the  issue be take within the equity of the statute because the statute be make in  restraint of that hurtful liberty which tenant enjoy by the commonlaw to the  prejudice of their lord Hardr so the statute of h cap say that if beneficiary  and use of land hold by knight service die and no will by he declare the load  shall have the ware there if he declare a will in tail yet the lord shall have  the ware by the equity and intent of the statute and not by the word for a  will in tail be a will although the reversion of the use descend but the  equity of the statute extend to it for the statute be make to give remedy  where wrong injury and covin be before for such use b dr Stud lib cap b be  invent and devise upon craft and subtlety to defraud lord of their ware and  other thing so the statute of Westminster cap speak only of three gift in tail  videlicet in special tail in frank marriage and in general tail and recite the  word of the gift c h h pl bro estate tail t h b per vampage Fitzherbert tail  bro estate tail ass pl bro ass pl estate tail roll Abr t pl   Litt a   b Perk  roll Rep Mod salk p wms Kitch vin Abr title estate t and t pl c yet if land be  give to one and to his heir and if the donee die without heir of his body that  it shall remain to another this shall be a good tail by the equity of the  statute although it be out of the word for at the commonlaw the intent of the  donor be infringe and elude which be contrary to right and good conscience and  therefore the statute be make to restrain that vicious liberty of break such  intent which be suffer by the commonlaw shall be extend by equity d m Edward  pl Fitzherbert Resceit m Edward Litt   Litt b roll Abr d pl more pl   b Inst  vin Abr title Resceipt a foe d and so the statute of Westminster cap say the  heir and they to who the reversion belong shall be admit c by the equity of  which statute he in remainder shall be receive for the commonlaw which will  not permit he to be receive suffer a wrong and this statute be make for the  relief thereof shall be extend by equity e vin Abr title receipt a pl in  notorious facts e and so b that the equity of the statute of Richard cap which  give receipt for feint plead receipt shall be bad for feint defend and a  action of account which be give to executor by statute shall be extend by  equity to administrator Plowden if the law be defective in these point it will  suffer a wrong to be do to other and therefore thing in like mischief shall be  take b equity within the like purview b t h Fitzherbert Forge de faits bro p  Edward b per choke vin Abr title forgery h pl b and so the statute of I h cap  give ail action for forge false deed by which the title and possession of  other be trouble here the statute be in the copulative yet if the title only  be disturb it shall be take within the equity of the statute for the disseizee  who have only a right shall have a action as it be adjudge so that we see  where the commonlaw suffer any thing to be do or give any person a liberty or  privilege which be hurtful or prejudicial to another and a statute be make for  the redress of it that by the equity of that statute a like thing shall be  take within the like purview and such construction of statute be of great help  and relief to innocent and guiltless person and a great discomfort and terror  to the guilty and evil doer and therefore it be beneficial to the public weal  which the law principal regard in our case then the liberty which the law give  to tenant in tail to discontinue or suffer a recover or to do such act be  prejudicial to many for the reversion be thereby divest out of the donor and  prejudice be do to the issue for such recover as be here allege make by  William Tailbois be a discontinuance to they which also be contrary to the  intent of the donor so that Plowden er p more receive prejudice than benefit  from it and thus it be with regard to tenant in tail in use for the recovery  here have by William Tailbois for the time take away the reversion of the use  c h bro feoffm all use b n c c for be who recover have the land be seize to no  use and then when the statute be make in restraint of such hurtful liberty of  the tenant in tail in possession and the same mischief and prejudice be do by  tenant in tail in use I conclude that this shall be take within the equity of  the statute for the cause before show and so the woman defendant be within the  purview of the word of the statute and within the equity of it also and  therefore for these cause the plain tiffs shall recover at another day brown  justice argue and he be of the contrary opinion for two cause in the plead one  be for that the cause of covin be not show for although the statute speak  general of covin yet it refer the plead thereof to the commonlaw and therefore  inasmuch as the cause of the covin be not show the replication be bad the  other cause be d vide b n c Leon Gouldsb hob hut d for that the plaintiff have  not show how the wife of the plaintiff be heir and therefore she can not be  seize in tail as it be plead and as to the execution he hold that it be not  necessary to be show and as to the matter in law he hold the case here within  the word of the statute and if it be not yet be hold it to be within the  equity of it because the statute be make in avoidance of covin which be to be  abhor and therefore the statute be beneficial to the public weal but for the  say defect in the replication be hold that the plaintiff shall not recover  Montague chief justice it seem to I that for one defect only in the  replication the plaintiff shall not have judgement first it seem to I that  covin be well aver without special cause show e finch finch   b   Litt a b e  for covin accord to the true definition of it be a secret agreement determine  in the heart of f Covin may not be but between two m h b per Prisot bro  collusion roll Abr a but fraud may be by one alone   b per cur f two or more  man to the prejudice of another as if tenant for life will secret conspire  with another that the other shall recover to the prejudice of the reversioner  for by this his reversion shall be take away and this conspiracy be and may be  term covin for all the part of the definition of covin be there full perform  for there be a union of their two heart and it be do secret and it be to the  prejudice of a three person and so it be a perfect covin without defect or  blemish ante per hale I and sir this covin to have a recovery may be as well  where the title of the recovery be good as where it be feint or bad h see ante  e and the book there cite h and therefore if a woman have cause of dower and  be of covin that the tenant shall be oust by a against who she recover and  have execution her estate shall be adjudge as against the disseizee to be by  seize and yet the title of the recovery be good and true but the covin be the  cause why it shall be look upon to be by seize I m h b I so if the issue in  tail who have good cause to have a formedon in descender upon a discontinuance  be of covin that a shall seize r against who he recover be shall not be remit  although his title be good but he shall be adjudge a seize by reason of the  covin and these two case be so adjudge in our book which prove that covin may  be where the title be good and the title shall not give benefit to he that  have it by reason of the covin for the mixture of the good and ill together  make the whole bad and the truth be obscure by the falsehood and the virtue  drown in the vice and so here although the title of William Tailbois who  recover in the formedon be good yet there may be covin between the woman now  defendant and the say William Tailbois and then to show cause of covin to  falsify the title in any point be not requisite because the title may be good  and yet there may be covin and so they may stand together and therefore it  shall not be necessary to show cause c and sir the title be to be try between  William Plowden er p Tailbois and other and not between the plaintiff and the  defendant here for they be stranger to the title of the formedon and it be not  the course of law to try the title of any man between stranger where he that  have the title be not party but if the plaintiff bad claim by William Tailbois  or under his title then it will be more reasonable to force they to try the  title by who they claim but they do it claim by such title and therefore by  the due course of law the discussion of it do not come now in debate and for  this cause it shall not be show also there be another reason to prove that the  cause of covin shall not be show for at this time the only thing to be discuss  be whether or no the woman defendant be party to the covin and as I say  inasmuch as covin be a secret thing whereof by intendment of law a stranger  can have knowledge for this Plowden reason the law will not force a stranger  to show the cause thereof a same diversity h Edward pl bro tenant in common m  h pl pl Fitzherbert Jointtenancy bro m h a per Cottesm p Edward a per Genney t  h b bro Jointtenancy dyer pl godb hob post a and if the defendant plead that  the plaintiff hold joint with another he shall not be force to show of who  feoff because by presumption of law he can have knowledge thereof otherwise it  be of jointtenancy plead on his own side and also if a man plead a deed which  do not belong to he be shall not be drive to show it so here forasmuch as by  presumption of law the specialty of covin do not lie in the knowledge of the  plaintiff they shall not be compel by law to show it also there be another  reason to prove that the general averment of covin be good for if the law be  that there may be covin although the title be good then there may be special  cause of covin and in all such case a man shall aver the covin general where  the averment of it be give by statute or by the commonlaw the statute of  Richard cap I give receipt for feint plead and feint plead and covin be all  one and there he shall pray to be receive by allegation of feint plead general  and so tenant for year by the statute of Gloucester shall be receive and shall  say that the action be bring by covin general as it be adjudge in many case b  m h b Fitzherbert conusance bro default b and in assize against three one make  default and a person answer for he as bailiff and afterward he come in and  disallow he for his bailiff and say it be his will that no other shall answer  for he but he will make default and not appear and the bailiff of the place  where the assize be bring come and demand conusance by the king charter and  say that this default be of covin to take from they their conusance and this  averment of covin general be hold good for there be not any special cause of  covin c m h b Fitzherbert challenge bro c and in a formedon by two coparceners  against one the party be at issue and the tenant challenge one of the juror  and one of the demandant agree to his challenge to the intent that the inquest  shall not be take because he be feoff to his own use and the other demandant  aver the challenge to be by covin and pray that the covin may be try and the  general averment be hold good and it be adjudge that the covin shall be try so  that covin be aver general where there can not be any special cause thereof  and so if a man will allege imprisonment in excuse of his default the other  may say that this imprisonment be by covin general d h h Fitzherbert  replication bro collusion property ante d and so if a sale in marketovert be  plead the other may aver it to be by covin general causan how above so if a  feoff be plead the other may aver that it be by champerty general without show  any special cause thereof e vin Abr title Covin b pl e and S in all case where  averment of covin or of any other thing be give by statute or commonlaw there  a man shall aver the same general where there can be any special cause thereof  but where there may be a special cause it be otherwise f m p pl Fitzherbert  faux de recov bro ante f as in h where in a praecipe quod To give back the  tenant plead in abatement of the writ a recovery in assize by a stranger by  action try and the demandant will have Plowden er p aver that the say assize  be bring by covin between the plaintiff in the assize and the tenant and he be  not admit to that general averment without special cause show for there be a  special cause there to put the party to answer and therefore the party ought  to show the title to be false for if the title be good there can be covin but  here whether the title be good or not yet the statute prohibit the covin and  the covin be a condition annex to his estate which make the estate defeazible  and therefore it be not the title which be in question but the covin and for  this reason the covin may not lie in a special cause and then it shall be  general aver as it be and so the averment of it be good also there be another  cause to prove it good g Kitch g for as the king subject be bear to inherit  land and other thing so be they bear to inherit and enjoy the law of this  realm and every man alike may have the benefit of the law and the common  presumption be that every man choose to accept of it but the contrary appear  in the woman defendant for when she be implead in the formedon she have not  view nor be essoigned and it be to be presume that she bad cause of voucher  inasmuch as the tail be so old and she do not vouch but lose the advantage  give her by the law and also she come the first day and therefore be not  amerce and say that she can not deny the action all which thing prove h   a  wing Max ring pl ring pl ante h open a covin and as the common say be it that  meat in its mouth I t h pl Fitzherbert brief bro receipt I and it be hold in  one book that where a woman receive plead in abatement of the writ that  another have bring a writ against her husband and her pen this writ upon eign  title and bad recover by nient dedire and bad sue execution that this be no  plea because no title be try in the other writ and a nient dedire be no more  than a confession of the tenant and his own act so here the recovery by mean  dedire be the act of the party himself and appear to be covinous and then to  show cause of covin or to aver that special which appear king see ante b and  the book there cite king open be vain and therefore for all these cause the  general averment of covin be good and as to the exception take because  execution be not allege to be sue sir this be not necessary for the statute  speak of recovery by covin and it be here a recovery by covin although  execution be not sue and as to what have be say to the contrary l vide t h pl  bro Fauxif de recov remitter   Litt b I   a Kitch post Manxels case l that if  a feint recovery be sue against tenant in tail and he die before execution the  issue be remit and the recovery be not executory against he and then if this  be so it be out of the mischief of the statute sir as to this if it be so yet  it be within the purview of the statute for the condition which the statute  have annex to the estate of the woman be break videlicet by the recovery with  covin m roll r m for if a man make a feoff to one upon condition that he shall  not feoff I S although the feoff within age make a feoff to I m yet the  condition be break notwithstanding the estate be defeazible so here although  the feint recovery be defeazible by the remitter if execution be not sue in  the life of the tenant in tail yet the covin in the recovery which be in  nature of a condition be the cause of forfeiture of the estate for there be  perfect covin and a recovery without execution for which reason the  replication be good without show the execution and as to the other exception  Plowden take because it be not show certain how the wife of the plaintiff be  heir a see Leon Gouldsb Hobb hut a it seem to I that for this cause only the  replication be bad for it be a learning in our law that b m Edward a per Danby    Litt a   a Leon Mod donc Pla heath Max b replication c m Edward a per Danby  c title d see ante g and the book there cite d plead in abatement of writ and  e m Edward b per choke bro estoppel h Edward a per Briggs bro estoppel m h a  per Hussey Fitzherbert estoppel   Litt a donc Pla heath Max say contra p h b a  per Newton bro estoppel e estoppels ought to comprehend certain and the reason  why replication Plowden er p ought to be certain be because replication force  the party to issue and in order that the court and the juror who try the issue  may not be inveigle or mislead by incertainty the law which be find upon  reason in this point ordain and provide that replication which make the issue  shall be certain f see ante b and the book there cite f but a bar which  contain certainty to a common intent be good g same diversity m Edward a  Fitzherbert and estate wing Max ring p g for a man may plead in bar and estate  without show how but in the replication if he plead and estate general it be  not good as it be hold in Edward but be ought to show how be come to the  estate for the reason aforesaid videlicet for the sake of certainty and every  replication ought to be direct contrary to the bar and then the party ought to  traverse or else confess and avoid the bar and here the bar be good and the  replication contain a misbehaviour of the woman defendant by which her estate  be avoidable whereupon the plaintiff ought to make themselves able to take  benefit of the misbehaviour of the defendant and if this ability be not  certain plead then the bar which be full confess be not full avoid for no man  in the world can discern or judge by the plead how the wife of the plaintiff  be cousin to George Tailbois and it may be that she be cousin by blood to he  and not cousin and heir to the land for it may be that he have a son who have  a son and these word prtextu quorum praemissor c do it make the matter better  for they neither h S p m h a bendl cro e per Fenner I ld raym salk heath Max h  increase nor diminish but be refer to that which be say before and to no more  as they be well take and expound in the bill of debt against the warden of the  fleet in I m h pl Fitzherbert debt bro escape I h and here if issue shall be  join that she be not the person to who c this issue comprehend no certainty  king t h pl bro condition turn back king and therefore in h where the  condition of a obligation be that the obligor shall not enter nor claim a  certain house and the defendant say that he do not enter nor claim it and the  plaintiff say that he do claim it this replication be hold not good for the  incertainty but he ought to have say that he come to the land and claim it and  enter into it and this will make a good issue l see ante a and the book there  cite l and if a man will make himself title in his replication by entry in to  land as next of blood of a woman ravish who have consent to the ravisher be  ought to show how he be next of blood m ante m and so if a man make himself  title in his replication as lord by entry in mortmain he ought to show how he  be lord and if he in the reversion pray to be receive be ought to show how he  come to the reversion and all these case be give by statute which speak  general as the statute here do but yet for the cause before show a man ought  to make a special conveyance to the thing or benefit give by the general word  and in a writ of ware if the defendant will say that the ancestor of the  infant hold of the plaintiff in socage and not by knightsservice this have be  adjudge no good plea without show how in socage as by fealty only because  otherwise the issue be incertain and so inasmuch as this replication which  ought to be certain because it tender a issue be incertain and also inasmuch  as it ought to enable the plaintiff to take benefit of the misbehaviour of the  woman defendant and make they actor in this cause for which reason they ought  to allege every thing certain and the whole be incertain for these cause it  seem to I that the replication be not good in this point and as to what have  be say by my brother hale that the averment shall be general because of the  generality of the word of the statute I have answer that before and as to the  case put by he for a example videlicet if a statute be make that the parson of  the church shall enter for a rape he shall say general that he be parson  without show institution or induction sir I confess Plowden er p this to be  law for if he show that he be parson of the church he plead certain for that  be a certainty but if the case have be put that he shall say he be the person  who ought to enter and do not show that he be parson of the church this have  be more like our case and I apprehend this will not be a good title and as to  the case put of writ of entry upon the statute and declaration sir they be not  like unto a title for some of the writ and declaration be general and some be  special but title ought always to be certain for be that make title be thereby  become actor and he that be actor ought always to plead certain and as to what  be say by my brother hale that the plaintiff shall not be compel to show how  she be heir because it may be that another be now heir as the son bear  afterward and yet the wife of the plaintiff shall the lie during the life of  the tenant in tail sir as to this I say that it be a matter worthy of  consideration and it seem to I n S p cite and affirm to be good law post   a    a n that the son bear afterward shall enter and oust the daughter for the  statute of h say that the person to who the title belong after the death of  such woman shall immediate enter into the tenement and the same shall possess  and enjoy accord to his title in they and then I say that the title which the  daughter have to enter be in tail and after the son be bear the title to the  tail be devolve from the daughter then if she shall possess and enjoy the  tenement accord to her title in they and in no other manner and by the birth  of the son the title to the tail be devolve from the daughter and vest in the  son then I say that the son in who the title now be may enter and it be not  like to the case where the woman seize in fee consent to a ravisher and the  daughter be next of blood enter there I will agree oh t Edward a bro do   a    b Leon Kitch oh that the son bear afterward shall not take away the title and  possession of the daughter for there it be of a feesimple p p h per wood bro  entry congeable   a   b cro e Litt r lev oh Kitch p and so where a remainder  be appoint in fee to the right heir of I S who die have a daughter who enter  after the death of the tenant for life there I agree that the son bear  afterward shall not remove the land before Plowden vest in the daughter as a  purchase for there be a feesimple to which the son bear afterward have no  right for the land never be in any of his ancestor before but here the estate  be a estate tail and the son ought to have it form gift et possession brother  de fee simple compose sister a see to hang a Vet n b bro descent   Litt b  Kitch a but the possess ion of the brother of a estate tail as heir to his  father will not make the sister to be heir but it shall descend to the young  son of the half blood b light pork finch finch   a b and if the bastard eign  abate into feesimple land after the death of the father and die seize without  interruption and his issue enter be shall hold it and the right of the mulier  puisne and of his heir be bind for ever c m Edward plan ult   Litt b c but  otherwise it be of land in tail for the right of the mulier puisne or of his  issue shall not be bind there so that there be a great difference between  feesimple land and land in tail and therefore here inasmuch as the title be in  tail and the Act say that the person shall enjoy it accord to his title which  be here in tail and the estate of the woman who suffer the recovery by covin  be defeat by the entry of the daughter the son bear may for this cause enter  and oust the daughter for the title in tail be in he and there the common  proverb be verify videlicet one shall beat the bush and another have the bird  d r h b per curian a per wood   Litt b dal robin of gavelk d as if a man have  land by descent on the part of his mother and he make a feoff upon condition  and die without issue and the heir of the part of the father enter the heir of  the part of the mother shall oust he and so I have declare my opinion in the  say case but it be well move and it be a cunning case and as to what be also  say by my brother hale foe that if the plaintiff shall show how she be heir  then it will give occasion to the defendant to say that she be a bastard or  bad a Plowden er p elder brother sir whether or no it be reasonable to give  such answer I myself report to the audience quasi to dedicate that it be  reasonable for this destroy the Title of the plaintiff without show the  special matter and as to what be also say by he that if the party shall be  force to show how he have title then it may be that he have double title as in  the case there e ante e put and the show of that will make the plea double sir  as to that the plaintiff have prevent this well enough for be afraid that the  plea may be double they have show nothing and now this be worse than a double  plea for a double plea have matter of substance but here there be no matter of  substance and sir in the say f ante f case the title will not be double for  the remainder for year and the remainder for life commence at one time and  upon one livery and be no more than one title and whether there be one or two  title in our law a man ought to bold himself to one matter and not to double  matter and as to what have be g ante g say that it will be a estoppel sir this  be not so for when one be force to show a thing certain and to rely upon one  point he shall not be estopped at another time to show another thing which he  can not show before for if he shall the law will be unreasonable in this point  for it will prejudice a man where there be no default in he for which cause it  shall not be a estoppel and as to the other reason move by my brother hale h  ante h that the plaintiff need not show how heir because they be once seize as  if a remainder in tail be once execute the issue in tail shall have a formedon  and shall declare upon a immediate I see ante b and the book there cite I gift  sir I agree to this case for all passes at one time and upon one livery but if  it be by way of grant of a reversion there although they be once seize it will  be otherwise for in king ass pl king ass a diversity be take between a  remainder and a reversion for there the plaintiff in assize after the bar make  himself title by a grant of the reversion and it be hold that be ought to show  the deed of grant thereof notwithstanding he be once seize by force of the  same so that he that make title be always actor and ought to plead certain l t  h pl per Martin Fitzherbert to point out de faits bro h Edward b l and it be  hold in h that if one make himself title by force of the king letter patent be  ought to show they notwithstanding be be once seize and perhaps in the case of  the remainder if one be to make himself title in his replication by force of  such remainder vest in he he ought to show the estate precedent and may not  plead a feoff to he general for when a man make title to himself he plead as  certain as if the thing be to be execute notwithstanding he be once seize for  be be thereby become actor as I say wherefore for these cause the replication  be not good in this point and as to the matter in law upon the statute it seem  to I that this case be within the letter of the statute in one or two place  first we have a learning in our law m vin Abr title statute e pl m that if the  term and letter of any statute be obscure and difficult to be understand we  ought to have recourse to the intent of the maker and thereby we shall come at  the meaning of the letter and therefore the statute of Westminster cap say in  case when a man do lose by default the land which be by right of his wife it  be very hard that the wife after the death of her husband have no other  recovery but by a writ of right c here the statute speak where the husband  lose c n h h Fitzherbert seize per Hank Inst n and if the husband alone have  lose the law always be that the wife may enter and she be not drive to her  writ of right but the exposition of the statute be where the husband and wife  lose by default for such be the intent of the statute oh m h b per Fitzherbert  m h b per Thirn m Edward Fitzherbert estoppel Inst Sav roll r Gouldsb Mod ld  raym big on recov post oh and the statute of Westminster Plowden er p cap say  that if a fine be levy hereafter upon such land Self jure sit nullus which  word seem to make the fine void but yet it be not void but work a  discontinuance though it be void as to bar the right of the tail and thus the  ambiguous word of statute have always be expound accord to the intent of the  maker and the statute of Gloucester cap say likewise the heir of the wife  shall not be bar of his action after the death of his father and mother to  demand the inheritance of his mother by writ of entry which ibis father do  alien in the time of his mother whereof no fine be levy in the king court  which word whereof c be doubtful and incertain in the letter p Litt Inst   b  post p but the meaning of they be whereof no fine be levy by the husband and  wife for fine may well be levy by they and such have be the exposition ever  since accord to intent of the maker so that the intent of the legislature be  to be seek for in the exposition of the ambiguous word of statute and the  Plowden letter shall be aid by the intent the word then be doubtful here we  must inquire into the intent of the legislature and as to this it be first to  be observe that the marriage of woman and their advancement thereby be great  favour in our law insomuch that if a woman give a t Edward Fitzherbert who in  vita m h a per Fitzherbert die pl V n b a   Litt a finch finch and a land to a  man causan marriage speak first and he will not marry her but marry another  she shall have a writ to recover the land b t Edward Fitzherbert assize ass pl  Fitzherbert assize bro deraignment Edward Fitzherbert assize Perkins   Litt a  b and if land be give in frankmarriage and the party be afterward divorce the  woman shall have all the land c h h b per wood bro parliament more post c and  where a who in vita be give by the statute of Westminster cap upon recovery by  default against the husband and wife by the equity thereof a woman divorce  shall have a who ante separation to recover the land lose by the husband and  wife by default before the divorce which case prove how great the provision of  marriage and the estate thereof be favour by the commonlaw and then if they  who estate be so great favour by the law will be of covin and deceit to hurt  and impair those estate and so disinherit the heir and so to reward  benevolence with wrong and disherison certain it can be think but that every  man will wish to see such woman punish and that the intent of the maker of the  statute of h be as extreme against they as possible and so it seem to I that  the intent of the maker of the statute be to be take most strong against these  woman and then if the word of the same statute be doubtful they shall be  interpret most strong against they and with regard to the word sir the first  part of the statute which be in the disjunctive say that if any woman who have  have or afterward shall have any estate in dower for term of life or in tail  joint with her husband or sole to herself or to her own use in any tenement c  of the inheritance or purchase of her husband c so that the estate in dower  may not be refer to these word joint with her husband for a woman can have a  estate in dower joint with her husband but these word joint with her husband  shall be refer to the two other estate videlicet for life or in tail and here  the estate be in tail and so within the word but then the estate be refer to  the thing follow videlicet in manor land tenement or other hereditament and  sir here it can be deny but that the estate be a hereditament that be to say  in the use for a use be a hereditament and such a hereditament whereof d dyer  b a pl   Litt b I   b   a t raym ld raym I finch finch Bac read on statute of  use d possession brother in fee simple compose sister be to hang as it be hold  in Edward e m Edward b Fitzherbert subpoena bro descent e and such a  hereditament that if a man have to the value of S therein he shall be f m h b  per frowick bro juror challenge m Edward pl per Markh bro challenge Litt dyer  pl kelw b ld raym f swear in a assize by the commonlaw and it be such a thing  as statute such as the statute of pernor of profit and other have admit to be  a hereditament here then the woman have a estate tail in a hereditament but  there be one circumstance Plowden er p want and that be that the hereditament  ought to be of the inheritance or purchase of her husband and as to this I say  that here the use and the land also be the inheritance of the husband for his  heir may inherit it and a inheritance be such a estate as may be inherit by  the heir and as to the definition of Britton which make a distinction between  a inheritance and a purchase sir I have no great regard to a for his book  contain many error but the book of Littleton accord to the first edition  wherein the n wonder addition be omit which be the true and sure register of  the ground and principle of our law define h Litt h quod feesimplex idem be  quod inheritance fixed by law well puran so that be take every feesimple to be  a inheritance and be say that this word inheritance be not only intend where a  man have land by descent but also that every feesimple or tail which a man  have by purchase be a inheritance I m h pl Fitzherbert brief bro who in vita  faux Latin   Litt a ante I and as to the case put in h of a who in vita sir at  the end of the case it appear that Thirning have be in the chancery to inquire  the form of the say writ and they say that the form be both the one way and  the other videlicet how proclaim be law et heir c or de gift ankle c and I  have also look into the king king b king register which be accord wherefore  this reason do not at all disprove the matter and another case be put l t I  Edward Fitzherbert quare hinder f n b S Inst l that if a woman purchase a  advowson and a usurpation be bad when she be covert she shall be without  remedy after the death of the husband because the statute say the same shall  be observe in presentment make unto church be of the inheritance of wife c  which it have be say be to be intend of a descent sir as to this it be refer  to the sentence before which say he shall have the same action as the last  ancestor shall have have c and for this cause it be to be intend of advowson  by descent for this statute be like that of Westminster cap which give a  cessavit of a chantry and say a action shall lie for the donor or his heir to  demand the land so give in demesne where it give a action to the ancestor or  to his heir and so the say statute of quare hinder give the action which the  ancestor may have have which prove that the statute intend a descent wherefore  neither the say statute nor the case put do at all prove that a purchase be  not a inheritance and in a writ of right of land of his own purchase the writ  shall say how proclaim be law et heir svan for which reason it seem to I that  the use here and the land also be the inheritance of the husband for his heir  may inherit it and though the use be the inheritance of the husband and wife  ergo it be the inheritance of the husband and then all the word of the statute  be satisfy for here the woman have a estate what estate a estate tail in what  in a hereditament what hereditament a use in what manner joint with her  husband how to her own use of who inheritance of the inheritance of the  husband and so all the word of the first disjunctive sentence be full perform  in the case here and if the case be not within the word of the first  disjunctive sentence yet shall it be within the word of the second disjunctive  sentence which be or give to the husband and wife in jail by any person seize  to the use of the husband c for it can be here deny but that the feoff be  seize to the use of the husband until the statute of h be make for if they be  seize to the use of the husband and wife ergo they be seize to the use of the  husband and the husband have the entire use and the wife the entire use for  there there be no moieties m die pl pl in marge   b   b b   Litt b post m  between husband and wife and Plowden when the statute of h be make it give the  land to they that have the use it be to be see then who shall be adjudge in  law the donor after the execution of the possession to the use and sir the  parliament which be nothing but a court may do be adjudge the donor for what  the parliament do be only a conveyance of the land from one to another and a  conveyance by parliament do not make the parliament donor but it seem to I  that the a see Edward bro form b n c theol dig lib cap   b wing Max ring pl  ring pl a feoff to use shall be the donor Plowden er p for when a gift be make  by parliament b hob b every person in the realm be privy to it and assent to  it but yet the thing shall pass from he that have the most right and authority  to give it c m h pl bro feoffm lease   Litt a b roll Abr pl hob c as if  beneficiary and use and his feoff join in a feoff it shall be say the feoff of  the feoff for they have the great authority to give it d h h pl bro discontin  de possess   Litt b   a post vin Abr title grant g a pl in Marg say contra Bac  Max ring d and if tenant for life and he in the reversion join in a feoff it  shall be adjudge the livery of the tenant for life because he have the great  authority to do it e m h pl bro feoffm   Litt a cro e vin Abr title grant g a  pl e and so if one who be seize in fee of land and another who have nothing in  it join in a feoff it shall be say the feoff of he that bath right and the  confirmation of the other so here it shall be say the gift of the feoff by  parliament and the assent and confirmation of all other for if it shall be  adjudge the gift of any other then the parliament will do a wrong to the feoff  in take a thing from they and make another the donor of it f p h Fitzherbert  grant bro patent parliament bar f and sir in the case of the rector of  Edington h where the king have grant to the rector and his brother that when a  tithe shall be grant to he by the clergy they shall be discharge and afterward  a tithe be grant by the clergy in their convocation there itis hold by the  better opinion that the rector shall be discharge by the say grant of the king  notwithstanding he be adjudge in law one of the convocation and as such one of  the grantors for the commonlaw say that none shall be damnified by such  special grant make by parliament g p h b per fortescue bendl cro car g and  therefore the writ of right patent in London be not take away by the statute  of Westminster cap de gift conditional but it r mains at this day and the  demandant shall make his protestation to sue in nature of a formedon in  descender as he shall do in other real action there h roll r h so that and  here the land be by act of parliament will not prejudice any the Act of  parliament remove from the owner that be to say the feoff to the beneficiary  and use and the statute will do wrong if it shall not adjudge they the donor  for they have the great authority to give it and the parliament be only a  conveyance and therefore it shall be adjudge the gift of the feoff by  parliament and so the gift of the feoff who be seize to the use of the husband  and then within the word of the second disjunctive sentence of the statute of  h and if the feoff shall not be adjudge the donor then George Tailbois shall  but this seem repugnant for he to be take to be I Edward bro formedon b n I  donor to himself and therefore the feoff shall be adjudge the donor ut above  and so within the word of the statute and if the case here be out of the word  yet it shall be within the equity of the statute for it be to be consider that  the statute be make for the redress of false covin and to give a speedy remedy  to right king vin Abr title stat e pl   Litt b   a b king and all such statute  be in advancement of justice and beneficial to the public weal and therefore  shall be extend by equity and although it restrain the liberty of tenant in  tail sir every statute which shall be extend by equity restrain some body and  be penal to some body but yet inasmuch as it be beneficial to the great number  it shall be take by equity and so be this statute for it tend to the  suppression of deceit and to the advancement of truth and the statute of  Westminster cap give a who in vita upon recovery by default before which  statute such recovery be a wrong to the wife and a hardship as the statute say  and therefore a l ante c and the book there cite l who ante separation be give  by the equity of that statute and the Plowden er p statute of marlbridge cap  speak of they who use to feoff their old son and heir be within age m see roll  r Brownl m yet if his first son be dead and he feoff his second son who be his  heir it be within the equity of the statute n p h b per Ashton Inst n or if he  levy a fine to he which be matter of record this shall be within the equity of  the statute and yet it speak of a feoff and the reason be because covin be  always abhor in our law and statute make in suppression thereof be for the  public good and therefore shall be extend by equity and so the statute of I  Henry cap which give a writ of formedon in remainder against the pernor of  profit be make in suppression of covin for the feoff make to person unknown to  defraud those that bad right to the land be a great covin and deceit in the  law oh h bro parliament pernor de profit t h pl kelw a b   b Bulst post oh and  therefore a to know facias to execute a remainder shall be maintainable  against the pernor of the profit as it be adjudge in h and all this be for the  cause above give so it be here for Bracton say de sim libus ad like eaden  ration to go before be and therefore inasmuch as this statute be make in  suppression of covin it shall be extend by equity especial as the intent of  the mind of the maker of the statute be to be suppose very severe against the  woman herein mention as I have say before and then the statute of h which  execute the possession to the use make the possession subject to the condition  which be annex to the estate be in use as the statute de Prerogativa king cap  ordain that the lord the king shall have the wardship of all the land of such  as hold of he in chief by knight service of whosoever they hold else by such  service c and the statute of h cap ordain that if beneficiary and use die no  will by he declare and his heir within age the lord shall have a writ of ware  as well for the body as for the land as he shall have have if the ancestor  have be in possession of the same estate p S p debate t h pl bro prerog Stamf  prerog a b contra b n c p now the law be upon the conjunction of these two  statute together that if the king tenant have die seize have also a use in  land hold of other lord the king shall have his prerogative in they for the  say statute of h make the land in use subject to the king prerogative and so  here the statute of h which unite the possession to the use make the  possession subject to covin annex to the estate in use for which reason it  seem to I that the Plowden case here be within the word of the statute of h  and if it be not yet it be within the equity of it and so the entry of the  plaintiff be maintainable but for the say single fault in the replication they  shall not recover and so note that all the justice hold the case here within  the word of the statute of h and if it be not within the word that yet it be  within the equity of the statute and they hold also that the heir may enter  roll r hetl immediate that be to say in the life of the tenant in tail but no  judgement be give