allen versus hill note this case seem to have be only cite in argue the forgo  case vide cro Elizabeth that this case be a authority to the purpose for which  it be cite here but the right point be not take in ejectment special verdict  be find that a estate for life be devise to Agnes on condition that if she  depart clear out of London and dwell in the country she shall have a rend c  they find that she altogether depart from London and go to Milton in Suffolk  and after the heir before entry and the executor release to Agnes and  afterward the heir enter question be whether this release be good which depend  on this point of law whether after the condition be break the estate be divest  before a entry for if so she be tenant at sufferance and the release will not  enure by way of enlargement of her estate the judge resolve she be only tenant  at sufferance it then object that the verdict be insufficient for the  condition do not appear to have be break for it be not find that she dwell in  the country but the court be of opinion that it must be intend she do dwell in  the country and consequent that the condition be break because the only point  the jury doubt of be whether the estate for life be divest out of her without  entry and whether she have such a estate as a release will operate upon but it  have be object that the seize of the devisor and his die seize can it be take  by intendment and for this the case of plumer and Whitcot which have be report  in vent Mod but much better in lev and Jones the case be this a action of debt  be bring against sir Jeremy Whitcot as guardian of the fleet in fee for the  escape of holt in execution for pound at the plaintiff suit out of the custody  of Duckenfield to who sir Jeremy have grant that office for his own and two  other life on nothing debet a special verdict be find that sir Jeremy be seize  in fee of the office and make a grant for three life to Duckenfield that holt  and diverse other in execution for great debt do escape out Gilbert report er  p of the custody of Duckenfield and that he be a man of desperate circumstance  suffer they to escape and go with they and that Duckenfield at the time of the  grant and the commitment of holt and of his escape be insufficient and the  question refer be whether Jeremy Whitcot the defendant Gilbert on the statute  of west quod to answer superior shall be oblige to answer this debt and this  have be several time argue at the bar wile from the bench take a exception  that the verdict be insufficient find because it do not find Duckenfield  insufficient at the time of the action bring and on that exception a venire  Fac de to make new be award but this case which I admit to be law do not  impugn the doctrine I have lie down for in this case there be not a sufficient  find but it come within the second branch of the distinction for here be not  sufficient find to bring the matter of law in judgement before the court for  the action be on the statute of west cap which say si custos gaol non to have  per quod justicietur well unde to loosen to answer superior so that the gist  of the fact from whence the point of law do arise be the insufficiency of the  inferior gaoler at the time of the action bring for otherwise no action lie  against the superior so that the very fact be not find that bring the question  touch the law before the court but this no way contradict the rule already  mention touch special verdict nor in the least influence the resolution of  this court for here all fact be find that create any doubt touch the legality  of the will and therefore the court can it receive any doubt on any thing that  be the matter find as touch the devisor be seize or die seize so be the case  in Ro ab title trial in ejectment Ro ab the jury find a special verdict that I  S be seize of the manor of d in his demesne as of fee in which manor there be  a copyholder who do waste by cut a oak and that I S the lessor of the  plaintiff be his cousin and heir enter on the place where c for the forfeiture  and be seize in his demesne as of fee and conclude si super totan means he  have Title they find the defendant guilty if not they find he not guilty this  be judge to be a imperfect verdict because here be no especial doubt leave to  the court but the court must judge upon the whole Title and if I S have alien  the forfeiture have be dispense with and if the lessor of the plaintiff have  repurchase from the alienee he will have no estate by reason of the forfeiture  though he have be cousin and heir to J S so that the very gist of the  plaintiff Title in this case be the continuance of the seize of I S and the  descent of the manor to the lessor of the plaintiff so in the same page pl in  ejectment by the lessee of the college the jury find a special verdict that  the college make a lease to a upon condition and find a special matter in law  where the condition be break and find that the bailiff have enter and lease to  the plaintiff and do not find that the bailiff have any deed from the college  this be a imperfect verdict for here likewise the jury doubt super totan means  and the very gist of the action be whether the condition be break or not which  condition give the plaintiff a right of entry it can never appear to the court  that there be any breach unless there be a entry for that condition and a  Gilbert corporation can it make a bailiff without a deed and therefore the  bailiff without a deed can it enter for the condition break and the same rule  hold likewise in the case of gimlet and sand cro car in ejectment where a  special verdict be find that Burgundy Martin be seize in fee and make a  settlement to the use of himself for life and then to his wife for life and  then to his son John Martin and the heir of his body lawful beget and  afterward Burgundy Martin feoff John smith with warranty who feoff smith with  warranty who feoff Baskervill the lessor of the plaintiff John Martin be the  only son of Burgundy by that marriage super totan means if the plaintiff have  Title they find for the plaintiff now here the court will not intend John  Martin to be heir for that be the very gist of the fact and be absolute  necessary to bring the doubt before the court for if Burgundy have a son by a  former wife then the collateral warrant will not descend upon John to bar he  so that this be the question of fact leave undetermined by the jury which be  perfect necessary to form the resolution of law thereupon and be not find it  be a imperfect verdict for it do not settle such a fact as the court can  determine a matter of law upon but in this case every thing be settle to  resolve our doubt whether the will be Gilbert report er p legal execute or not  for the doubt be not touch the Title of Jennings the devisor to make the will  but whether he have actual make a effectual will within the statute by execute  it in the manner they have find and therefore the seize or die seize of the  devisor be out of the case we come now to the second point videlicet whether  this be a good will accord to the solemnities require by the statute of fraud  and perjury the word be and be it far enact by the authority aforesaid that  from and after the say feastday of the Nativity of John the baptist all devise  and bequest of any land tenement or hereditament devisable either by force of  the statute of will or by this statute or by force of the custom of any  borough or any other particular custom shall be in write and sign by the party  so devise the same or by some other person in his presence and by his express  direction and shall be attest and subscribe in the presence of the say devisor  by three or more credible witness or else shall be void and of none effect the  better to consider this matter we will consider what be the inconvenience the  statute design to prevent and for this I will look back to know how the law  stand before the statute and then consider the solemnities the statute have  add at commonlaw there be no such thing as a will of land and in this the rule  of property of these kingdom which as coke say in his first institute be  feudal and not allodial agree with all the foreign feudists lib Feudorum title  thread succedent Fillii well grandson ex son no one ordination death in fee to  stay well to feed Godofridus gloss and all the feudists agree that there can  be no legacy nor testament of they and the reason be Gilbert the same in their  and our law for all feudal land pass by feoff with livery of seize which they  call investiture and be do in a solemn manner in the county and the heir come  in by the word of the feoff it prevent all disposition by devise and in the  feudum mobile or KnightsService tenure the body and land of the heir be in  ware to the feudal Lord for his education to arm and therefore no disposition  by will be admit to his prejudice that which alter this law first in England  be the feoff to use which be first invent to elude the statute of mortmain and  then apply to several other purpose and when they distinguish the use from the  propriety they resolve that the use be devisable as we see bro feoff to use I  but when the statute h in England have transfer use into possession there  arise this inconvenience that person by their will shall not provide for their  child or relation and therefore the statute h c be make which be derive hither  by car and by that statute a man have liberty to dispose by will in write of  all his socage land and two three of his knightservice land and by this  statute no particular solemnity be require in the make such will but the write  only there be several other land in borough which by the custom of the borough  be devisable by nuncupative will only and this before the Conquest see be to  be the general rule and the gavelkind land which do very much partake of the  allodial quality be likewise devisable by the custom but there be no  particular solemnities require in make such will therefore sir Thomas smith  who be a good civilian and live in queen Elizabeth time in Republica England  cap take notice that our will be not subject to the solemnities of the civil  law but make with all liberty and as much freedom as in jure military now the  Roman military testament be make in readiness for battle and be a favour allow  to the soldier in the war to devise either by word or write without the  solemnity of witness and with we there be no solemnity require but that of  write which be by the h the testament be construe secundum law a king of  Illyria and the military Roman testament be that which be most free from all  ceremony and solemnity therefore they construe that our will may be make after  the same method hence it come to pass that a nuncupative will be good for  chattel till this statute and where the land be testamentary as the be accord  to the custom of some borough they allow a nuncupative will to pass they and  even since the statute if the will be make of good and write in the party own  hand without any witness at all it be allow to be good but it be not a  nuncupative but a write will and the statute do not require any witness to  chattel only but there be many inconvenience find after this statute of h for  man will Gilbert report er p set up paper that wear not sign by the decease  and will get witness to swear to the publication of it and this be Gilbert  easy contrive and construe since there be no solemnities require at the  publication of it if any preparation be make for a will they will get witness  after the decease of the party to swear to the publication of it and often old  dormant will be set up and the late will be smother by such contrivance in  borough where nuncupative will be allow it occasion much perjury by swear to  word that be never speak to prevent these inconvenience be the clause in the  statute of fraud and perjury which be car and adhere the W I have hear that  this statute and that of Intestates be draw up by chief justice hale and the  judge of the prerogative court and there be many thing in they that be accord  to the Plan of the civil law and I have observe construction have be make  accord there be by this statute three solemnities require to the make of will  that pass land first that it shall be in write for the first statute touch  will require it shall be in write yet the land devisable by custom be not  comprehend in the first statute second that it shall be sign by the party and  this ceremony be choose rather than seal and deliver which be the solemnity  require in deed because the seal which be former a great mark of distinction  in family be then much disuse and man seal with any seal and not with the  family seal and so the ceremony of the sign use by the civil law be rather  choose than our ceremony of execute deed and the delivery be not make  necessary because this will not discover any fraud the sign be to be by the  party himself or by some other person by his direction in his presence the  latter part of the clause be in favour of such person who by some accident  lose their hand or be paralytic and disease and can not use they three the  three solemnity be the attestation by the subscription of three witness in the  presence of the testator and here the statute pursue the method of the civil  law in will solemnibus not as lie down in justinian institution but as reform  by the Code in the novel the civil law require that the witness shall sign the  will and that in presence of the testator the design be that the will may  appear to be complete and not a preparation only for by take the name of the  witness to his paper the testator have show that he have complete his will and  it be require that he shall take the witness name in his presence as a  admonition that the name of witness be necessary that so the party concern in  the will may have resort to they after his death as to the number of witness  seven be require by the institution in the cap de will to order but this be  relax to three by the constitution of leo in the news in favor the dawn who  country region not crowded inhabitant and whereas the institute require they  all shall be present to make one loci tempore the Code relax Gilbert it in  case of person that have infectious disease and so it be not require with we  that all the witness shall be present at one and the same time for the Roman  who have once this ceremony and be very curious in the make of their will  think fit to relax it afterward and so when this statute be make on the model  of the civil law they omit the ceremony which the civil law have remit I be  therefore of opinion that it be not necessary that all the witness shall  subscribe together and at the same time because by the word of the statute  they be only to attest the will in write and the sign of the testator that be  what they attest and be witness to and they be no witness to their own  attestation so if they do not attest the same write as if two be witness to  the will and one to the codicil that confirm the will this be not sufficient  because there be not three witness to that write that be the will so if it be  sign in the presence of one and publish in the presence of two other this be  not sufficient because it be the write and sign of that will that be the  solemnity necessary to be attest but they be not to bear witness to the  subscription of each other because the statute do not say that they shall  subscribe together at one and the same time and nobody can add a new  circumstance or solemnity which be not require by the statute it easy for the  statute to have say that the witness shall subscribe at one and the same time  or that they shall subscribe altogether and in the presence of the testator  Gilbert report er p or to have say that they shall attest the write which be  the will and the sign of the testator and I can it by construction add a new  solemnity not mention in the statute for this be to make a new law and not to  expound that already make if this be doctrine if one of the witness sign his  name in the presence of the testator but go out of the room while the other  witness be sign the will shall be void and to make this construction will  overturn many will that have be make in this manner No man will say that if  one man prove the seal of a deed at one time and another the delivery at  another time that the deed be not well prove and yet the law require at least  two credible witness to the seal and delivery why then may not a witness prove  the sign at one time if connected in space to help be a rule that will hold in  a deed why not in a will nay it be strong in a will because the two witness  see the precedent sign of the testator and the precedent subscription of the  other witness and the rather because it appear that the animus to cause to  testify of the testator continue in both his act of sign we be now come to the  authority the first be in Chan can where it be resolve that a will of land  attest by three witness who at several time subscribe their name at the  request of the testator but be not present at once together be a good will  within the statute it have be object that this be a resolution in chancery but  no authority in a court of law but I think a solid answer be give Gilbert that  there be the same rule of property in equity as in the law and the same  construction on the statute law and the rather because it be a statute for  prevent of fraud which be the proper business and jurisdiction of a court of  equity to suppress the next case be Libbe and lee report in Mod show I have  see a much better report by the learned and excellent lawyer Mr sergeant  Broderick and be thus in ejectment the jury find a special verdict that Thomas  Denham be seize in fee and the saint of January make his will in write and  thereby devise the land in the declaration to be sell for the payment of his  debt which he subscribe in the presence of two witness and afterward make a  codicil by which he confirm the say will in all particular not alter by the  codicil and the land in question be not mention in the codicil and declare the  codicil to be part of his will and that the codicil be witness by two witness  whereof one be witness to the will and the question be whether this be a good  will within the statute and adjudge that it be because the write that be the  will must be sign by the party and subscribe by the witness who must attest  that for write that be the will for the statute make it necessary that they  shall attest the will and the sign of the party for if a man make a codicil  confirm his will which be not sign by himself and subscribe by three witness  the codicil can not operate to confirm that will for there be a nullity till  it receive its perfection by the testator sign and three witness subscribe and  be such can not be confirm by any subsequent Act and if such a will be a  nullity because it be not sign by the testator and attest by three witness it  be as much a nullity though it be sign by the testator and two witness because  by the statute the three be as necessary to complete the will as all the rest  in the report of Mr sergeant Broderick this case be put by chief justice holt  whether a will sign in the presence of two witness and then the sign own to be  his hand in the presence of a three and subscribe by each of they in his  presence be a good will or not he himself doubt of it but Mr justice dolben  say it be a good will for the testator own his hand be a sign and no new write  by the testator be necessary but the only doubt there be whether the testator  shall not sign it over again in the presence of the three person to fulfil the  letter of the statute for it seem to be admit of both hand that if the  testator have sign it over again in the presence of the three witness that  will will have be good though the three witness be not altogether and do not  subscribe in each other presence it have be object that this way of execute  will may create great perplexity for if a man shall execute his will and  afterward purchase a estate and afterward sign it in the presence of two other  witness the question be whether such a estate which will be out of dispute if  the will be execute altogether will pass Gilbert report er p but there be no  question but such a estate will not pass by such will because it be not a will  to pass land unless it be execute in Gilbert the presence of three witness  after such estate purchase and if it be sign in the presence of three before  the purchase and afterward sign in the presence of two only it will be void  quoad those land another objection have be make that the intention of the  statute be that three witness to the will may likewise attest the sanity and  so a will execute in the manner in this verdict be not effectual for say they  if a will be execute before two witness and the man be of sound memory and  afterward he become non compos and sign it before a three now if such a three  sign by one witness shall make the will effectual the sanity of the person  will turn upon the credit of a single witness but I do it think the statute  appoint three witness mere and principal to attest the sanity of the person  for a man must be compos chin upon the execution of a deed as well as a will  execute and yet three witness be not require to the execution of a deed but  the design of the statute be to prevent fraud in set up of a will that the  testator have not real make but if the principal design of the statute have be  that they shall attest the sanity of the testator I do it see but the  attestation may be make by the witness sign at three several time as well as  sign all at once for if they say that at those time the testator appear a man  of understanding and that his capacity be continue till sign it will be a most  effectual testimony in behalf of the will indeed if any of the witness swear  that he be non san Memori it will overthrow the will where the sign be at  different time so it will if any one of the witness shall deny their hand  therefore nobody can doubt but that it be the better way they shall sign  altogether but because there be a convenience in their sign altogether I can  it from thence judge it to be necessary unless the statute have absolute  require it again if it be sign at three several time and the last witness  shall say he be sane and other attest the contrary there the question will be  whether he be a credible witness or not for it must be sign in the presence of  three credible witness and as far as any person of equal or better credit do  counterpoise his evidence so far he be not credible but if his credit stand  unimpeached though he stand single I do it see why he shall not be a competent  witness of sanity as well in the case of a will as of a deed if there be three  witness that be all present at the same time yet it will not be uncontrollable  evidence of his sanity for the statute do not design to make three witness  conclusive because it say it must be three credible witness and so the heir at  law who be to be disinherit may examine CounterTestimony against they and in  the same manner he may where it be execute at several time nay the heir have a  great advantage because he may more easy invalidate the testimony of any  single witness when it be not corroborate by the concurrent testimony of his  FellowWitnesses but it be no reason to damn this manner of execute Gilbert  will because the heir have thereby a great advantage in contest the proof of  they but though this be a good execution of a will to pass land where the  testator sign in the presence of one witness and afterward in the presence of  two yet it be the safe way to execute the will in the presence of all the  three witness for there may be great difficulty in the proof where the  testator sign and the witness subscribe separate for if the witness who  subscribe by himself shall die I do it see how the will can be prove for the  proof of the hand can it be admit where there be live witness to the will and  these can it prove the subscription of the three witness who be dead but  because such will thus incautious execute may in some case fail in proof yet  it be no reason to damn such will where the witness be live and prove the sign  of the testator and it be no consequence that because in some case there may  be a failure of proof therefore we shall destroy a will that be sufficient  prove in this case the will be sign by the testator in the presence of the  first witness who likewise sign in the testator presence and the testator sign  in the presence of the last witness who also subscribe in his presence this be  all the solemnity require by the statute and if anymore have be require it  will have be specify in the statute and I can it erect a new solemnity to  Gilbert report er p destroy a will for which I have no authority from the  statute and so judgement for the plaintiff see Lord lansdown case in lucas  report c Gilbert the report OF a case hear and adjudge in the king bench in  Ireland tempore george I