a report of the argument make in a case which be in the CommonBench by Writ of  entry upon a seize by John stowel esquire demandant against george zouch lord  zouch SAINTMAURE and CAUTELUPE tenant for the moiety of certain land in  Northmolton in the county of Devon which argument begin in the CommonBench in  easter term in the six year of the reign of the present queen and upon the  judge there disagree in opinion for two of they be of one opinion and the  other two of another opinion the matter be adjourn from thence into the  exchequerchamber before all the justice of England and the chief baron where  it depend in argument until this present Hillary term in the eleven year of  the reign of queen Elizabeth in which term the case be adjudge accord to the  opinion of the great number of the justice and the record thereof appear among  the record of Michaelmas term pound Elizabeth rot and be as follow mich term  pound Elizabeth rot Devon declaration same precedent raze Entr b pl see booth  John stowel esquire by Richard Calmady his attorney demand against George  zouch Lord zouch Saintmaure and Cautelupe the moiety of message acre of land  acre of meadow acre of pasture acre of wood acre of furze and heath acre of  elderwood and acre of more with the appurtenance in Northmolton of which the  same George unjust and without judgement seize the aforesaid John within year  now last pass c and whereupon he say that he himself be seize of the moiety  aforesaid with the appurtenance in his demesne as of fee and right in time of  peace in the time of the lady the queen now by take thereof esplees to the  value c and of which c and therefore he produce the suit c and the aforesaid  George zouch Lord zouch by John Heydon his attorney come and defend his right  when c and say that the aforesaid John his action aforesaid against he ought  not to have because he say that long before the aforesaid John have any thin  in the aforesaid moiety with the appurtenance one John zouch knight Lord zouch  Saintmaure and Cautelupe grandfather of he the say George Lord zouch who heir  he be be seize of the same moiety with the appurtenance in his demesne as of  fee and be so thereof seize a certain fine levy in the court of Lord Henry the  eight late king of England at Westminster from the day of easter in fifteen  day in the that year of the reign of the same late king before John Baldwin  Anthony Fitzherbert William Shelly and Thomas Willoughby then justice of the  say late king of the bench at Westminster and other liege of the say king then  there present between one Francis Ainsworth complainant and the aforesaid John  Lord zouch deforceant of the moiety aforesaid with the appurtenance among  other Plowden er p thing by the name of the manor of Northmolton with the  appurtenance and of message cottage toss one watermill one windmill acre of  land acre of meadow acre of pasture acre of wood Plowden acre of more acre of  furze and heath and pound rend and also of the advowson of the church of  Northmolton with the appurtenance in Northmolton whereof a plea of covenant be  summon between they in the same court of the aforesaid late king videlicet  that the aforesaid John acknowledge the aforesaid manor tenement and rend with  the appurtenance and the advowson aforesaid to be the right of the say Francis  as they which the same Francis have of the gift of the aforesaid John and they  remit and quitclaim from himself and his heir to the aforesaid Francis and his  heir for ever and further the same John grant for himself and his heir that  they will warrant to the aforesaid Francis and his heir the aforesaid manor  tenement and rend with the appurtenance and the advowson aforesaid against all  man for ever and for that acknowledgement remise quitclaim warranty fine and  agreement the same Francis grant to the aforesaid John the aforesaid manor  tenement and rend with the appurtenance and the advowson aforesaid and they to  he render in the same court to have and to hold to the same John for the term  of one month and after that term end that the aforesaid manor tenement and  rend with the appurtenance and the advowson aforesaid shall whole remain to  the same John and Ann his wife to hold of the chief lord of the fee by the  service which shall belong to the aforesaid manor tenement rend and advowson  all the life of they the say John and Ann and of the long liver of either of  they without impeachment of waste and after the death of thesaid John and Ann  that the aforesaid manor tenement and rend with the appurtenance and the  advowson aforesaid shall whole remain to the right heir of the say John to  hold of the chief lord of the fee by the service which shall belong to the  aforesaid manor tenement rend and advowson forever which say fine in form  aforesaid levy be ingross and afterward in the court aforesaid accord to the  form of a statute in a parliament of Lord Henry late king of England the seven  from the Conquest at Westminster in the county of Middlesex in the four year  of his reign thereof make and provide be public and solemnly read and proclaim  in form follow videlicet the first proclamation be make the that day of may in  easter term in the that year of the reign of the aforesaid late king Henry the  eight the second proclamation be make the that day of may in the same term the  three proclamation be make the saint day of June in the same term the four  proclamation be make the d day of June m the same term the five proclamation  be make the d day of July in the term of the holy Trinity in the same year the  six proclamation be make the that day of July in the same term the seven  proclamation be make the that day of July in the same term the eight  proclamation be make the that day of July in the same term the nine  proclamation be make the saint day of November in the term of saint Michael in  the same year the ten proclamation be make the d day of November in the same  term the eleven proclamation be make the that day of November in the same term  the twelve proclamation be make the that day of November in the same term the  thirteenth proclamation be make the that day of February in the term of saint  Hillary in the same year the that proclamation be make the that day of  February in the same term the fifteen proclamation be make the that day of  February in the same term the sixteenth proclamation be make the that day of  February in the same term as by the say fine here of record remain full appear  and the same George Lord zouch say that at the time of the read and  proclamation aforesaid make all plead in the same court of the aforesaid late  king cease accord to the form of the statute aforesaid by virtue of which say  fine the aforesaid John Lord zouch and Ann be seize of the moiety aforesaid  with the appurtenance among otherthings that be to say the aforesaid John Lord  zouch in his demesne as of fee and the aforesaid Ann in her demesne as of  freehold and they be so thereof seize the aforesaid Ann at haringworth in the  county of Northampton die and the aforesaid John Lord zouch survive her and be  thereof seize in his demesne as of fee and the say John Lord zouch be so seize  of the moiety aforesaid with the appurtenance among other thing the same John  Lord zouch afterward and before the day of obtain the writ original of Plowden  er p the aforesaid John stowel at haringworth aforesaid likewise die of such  estate thereof by protestation seize after the death of which say John Lord  zouch the moiety aforesaid with the appurtenance among other thingsdescended  to one Richard Lord zouch Saintmaure and Cautelupe as son and heir of the  aforesaid John Lord zouch whereby the same Richard Lord zouch into the moiety  aforesaid with the appurtenance enter and be thereof seize in his demesne as  of fee and the same Richard Lord zouch be so seize of the moiety aforesaid  with the appurtenance of such estate thereof at Stafordsdale in the county of  Somerset die by protestation seize after who death the moiety aforesaid with  the appurtenance descend to he the same George Lord zouch as son and heir of  the aforesaid Richard Lord zouch whereby he the same George Lord zouch be and  yet be of the moiety aforesaid with the appurtenance among other thing seize  in his demesne as of fee and this he be ready to verify wherefore he pray  judgement if the aforesaid John stowel his action aforesaid contrary to the  fine aforesaid with the proclamation aforesaid levy against he ought to have c  replication and the aforesaid John stowel say that by any thing before allege  he ought not to be preclude from have his action aforesaid because he say that  before the aforesaid John Lord zouch have any thing in the moiety aforesaid  with the appurtenance one John stowel the grandfather of he the say John  stowel now demandant who heir he be be seize of the same moiety with the  appurtenance in his demesne as of fee until the aforesaid John Lord zouch the  say John stowel the grandfather c thereof unjust and without judgement seize  whereby the same John Lord zouch be seize of the say moiety with the  appurtenance in his demesne as of fee by seize c and the say John Lord zouch  be so thereof seize by that seize the aforesaid fine with proclamation in form  aforesaid be levy as the aforesaid Plowden George Lord zouch above thereupon  have allege and that the aforesaid John stowel the grandfather c at the  aforesaid time of the levy the fine aforesaid and of the proclamation  aforesaid upon the say fine above suppose to be make be survive and in full  life videlicet at Cotherston in the county of Somerset and afterward videlicet  the that day of August in the d year of the reign of the aforesaid late king  Henry the eight at Cotherston aforesaid the same John stowel the grandfather e  die after who death the right of the moiety aforesaid descend to he the same  John stowel now demandant as cousin and heir of the aforesaid John stowel the  grandfather c videlicet as son and heir of Richard stowel son and heir of the  aforesaid John stowel the grandfather c he the same John stowel now demandant  then videlicet the aforesaid time of the death of the aforesaid John stowel  his grandfather be within the age of year videlicet of the age of six year and  no more and that he the same John stowel now demandant afterward videlicet the  that day of August in the d and that year of the reign of Lord Philip and lady  mary late king and queen of England come to his full age of year and not  before whereby be the same John stowel now demandant afterward videlicet the d  day of October in the abovesaid d and that year of the reign of the aforesaid  late king and queen into the moiety aforesaid with the appurtenance upon the  possession thereof of the aforesaid George Lord zouch enter and be thereof  seize in his demesne as of fee until the same George Lord zouch he the say  John stowel now demandant thereof unjust and without judgement seize as he by  his writ and declaration aforesaid above have suppose and this he be ready to  verify wherefore he pray judgement and seize of the moiety aforesaid with the  appurtenance together with his damage by occasion of the seize aforesaid to be  adjudge to he c rejoinder demurrer to the replication and the aforesaid George  Lord zouch by protest that the aforesaid John Lord zouch do not seize he  aforesaid John stowel the grandfather of the moiety aforesaid with the  appurtenance by protest also that he do not seize the aforesaid John stowel  now demandant of the moiety aforesaid with the appurtenance for plea say that  the aforesaid plea of the aforesaid John stowel now demandant above by reply  plead be insufficient in law to maintain the say John stowel now demandant to  have his action aforesaid against he the say George and that he have no  necessity nor be by the law of the land bind to answer that plea in manner and  form aforesaid plead and this he be ready Plowden er p to verify wherefore for  want of a sufficient plea in this behalf he pray judgement and that the  aforesaid John stowel now demandant from have his action aforesaid against he  may be preclude joinder in demurrer and the aforesaid John stowel now  demandant for that he have above by reply allege sufficient matter in law to  have and maintain his action aforesaid against the aforesaid George which he  be ready to verify and which say matter the aforesaid George do not deny nor  thereunto in alley wise answer but the say averment whole refuse to admit as  before pray judgement and seize of the moiety aforesaid with the appurtenance  together with his damage by occasion of the seize aforesaid to be adjudge to  he c and because the justice here will advice of and upon the premise before  the give judgement thereon day id give to the party aforesaid here until the  octave of saint Hillary to hear their judgement thereon because the same  justice here thereof not yet c the case seize levy a fine with proclamation  disseizee after year and within year die his heir be within age who after the  year expire become of full age and within a year after his full age enter and  adjudge that his entry be not lawful for here the year give by the statute of  h first attach in his ancestor and in such case be once commence there shall  not be any intermission or interruption of they but the heir though within age  must claim within those year or he shall be bar and he shall not have other  year after his full age S p   Litt a and Poph Mod Crompt I c b b west Symb pt  foe b b sheep pract Couns Bac Abr vin Abr title fine W foe the case be recite  in this manly John stowel have demand against George zouch Lord zouch  Saintmaure and Cautelupe the moiety of message acre of land acre of meadow  acre of pasture acre of wood acre of furze and heath acre of elderwood and  acre of more with the appurtenance in Northmolton of which the say George have  seize he within year c and he allege his seize in the time of the present  queen against which the tenant have plead in bar that long before the  demandant have any thing one John zouch knight the grandfather of the say  George who heir he be be seize of the same moiety in his demesne as of fee and  be so seize a fine be levy in fifteen day of easter in the that year of the  reign of the late king Henry between Francis Ainsworth complainant and the say  John zouch deforceant of the same moiety among other thing by the name c by  which fine the say John acknowledge the tenement to be the right of the say  Francis as they which he have of his gift c and the say Francis render the  same tenement by the same fine to the say John zouch for one month the  remainder over to the say John and to Ann then his wife for their life the  remainder to the right heir of the say John which fine so levy be engross and  afterward in the say court accord to the form of the statute make in the that  year of the reign of king Henry it be open and solemnly read and proclaim in  form follow that be to say four proclamation be make the same term and four  other in each of the saidthree other succeed term which be express in certain  and he say that at the time of the read and proclamation make all plead in the  say court cease accord to the form of the say statute by force of which fine  the say John zouch and his wife be seize accord and they be so seize the wife  die and afterward and before the writ purchase the say John zouch die by  protestation seize after who death the say moiety descend to Richard Lord  zouch as son and heir of the say John by reason whereof the say Richard enter  and die by protestation seize after who death the say moiety descend to the  say George as son and heir of the say Richard by reason whereof he be and yet  be seize of the say moiety in his demesne as of fee and this he be ready to  verify and he demand judgement if the demandant ought to maintain his action  against he contrary to the fine aforesaid with the say proclamation levy and  the demandant reply that by any thing before allege he ought not to Plowden er  p be bar of his action because he say that before the say John zouch have any  thing in the say moiety John stowel the grandfather of the same demandant who  heir he be be seize of Plowden the say moiety in his demesne as of fee until  the say John zouch seize he whereby the say John zouch be seize of the say  moiety in his demesne as of fee by seize and he be so seize the say fine with  proclamation be levy in form aforesaid as the say tenant have allege and the  say John stowel the grandfather at the time of the say fine levy and of the  say proclamation suppose to be make be in full life at Cotherston in the  county of Somerset and afterward videlicet the that day of August in the d  year of the reign of the aforesaid king Henry the say John stowel the  grandfather die after who death the right of the say moiety descend to the  demandant as his cousin and heir videlicet as son and heir of Richard stowel  son and heir of the say John stowel the grandfather he the same John stowel  the demandant then videlicet at the time of the death of the same John stowel  the grandfather be within the age of year videlicet of the age of six year and  no more and that afterward videlicet the that day of August in the d and that  year of the reign of king Philip and queen mary he the say John stowel now  demandant come to the full age of year and not before by reason whereof he the  same John stowel now demandant afterward videlicet the d day of October in the  d and that year of the reign of the say late king and queen enter into the  same moiety upon the possession of the say George Lord zouch and be thereof  seize in his demesne as of fee until the say George zouch thereof seize he the  say John stowel now demandant as he by his writ and count have allege and he  demand judgement and pray seize and the say George by protest that the say  John zouch do not seize the say John stowel the grandfather of the say moiety  and also by protest that he himself do not seize the say John stowel now  demandant for plea demurrer upon the replication and the demandant also join  in demurrer and the matter be argue in the CommonBench in easter term  Elizabeth by Puttrel and Carus sergeant on the part of the Lord zouch the  tenant and by Harper and Bendloe sergeant on the part of stowel the demandant  and in October afterward it be argue by the judge of the same place who disarm  in opinion for Welsh and brown argue that the law be with stowel the demandant  and Weston and the Lord dyer argue to the contrary whereupon the judge of the  CommonBench adjourn the matter into the exchequer Chamber for the further  argument of it and there it be argue in easter term Elizabeth by Puttrel and  Harper and in October follow by Carus and Bendloe and while this matter depend  there in argument two of the justice die before they have make their argument  in the exchequerchamber videlicet Corbet one of the justice of the kingsbench  in who place Carus be make justice and Anthony brown one of the justice of the  CommonBench who be a judge of profound learning and great eloquence upon who  death the verse write under the report of this case foe be just make and in  the place of the same brown Harper be make justice but he and Carus do not  argue this case as justice because they be make justice after the argument of  any of the other judge who be their ancient but after they be call to the  office of justice they retain their former opinion which they have maintain  when they be sergeant but all the other justice and sander chief baron of the  exchequer argue in the case and that which I here report of brown argument be  make in the CommonBench and Harper and Bendloe as be aforesaid and Welsh in  both his argument and brown as be say before and sander chief baron of the  exchequer hold that the law be with stowel the demandant and that he ought to  recover the point of the case and the point argue be but one and that be  inasmuch as the statute of h cap of fine give five year to every stranger and  here John stowel the grandfather who be seize be a stranger to the fine and  have liberty to enter or bring his action within five year and he die within  five year if the say stowel the demandant be his heir and be within age at the  time of his death and have suffer the first five year to pass Plowden er p  during his nonage shall have other five year after he come of full age where  the residue of the five year attach in his grandfather or if he shall be bind  to the five year first give inasmuch as part of they attach in stowel the  grandfather and the Act exclusive of the preamble be divide by one or other of  they all that argue into four point which be think to contain the substance of  the whole purview of the Act the first be whether or no stowel the demandant  shall be bind by the body of the Act rest in these word videlicet the  proclamation be make the fine to be a final end and shall conclude as well  privy as stranger to it add thereto the exception in the Act or whether or no  he shall be out of it by reason of the exception the second be admit that  stowel the demandant shall not be bind by the body of the Act but shall be out  of it as be comprise within the exception whether or no he have pursue the  time prescribe afterward by the purview of the Act for those who be except the  three be admit that the demandant be bind by the body of the Act and be not  comprise within the exception whether or no he shall be aid by the first save  the four be admit that the demandant be bind by the body of the Act in that he  be neither comprise within the exception nor shall be aid by the first save  whether or no he be within the second save and shall be aid thereby and the  equity of the Act be make a five point of the case and some of those who take  the law to be with the demandant argue to some of the point and other of they  to other and some to all the point but I shall not recite at large the  argument which be make on both side for each of the judge have a whole day for  his argument in the exchequerchamber and the argument be very long and if I  shall report all that be say it will make it too voluminous which it be not my  design to do but I shall here show brief the reason and say which I think be  the principal and most weighty Plowden for the demandantAnd by those who argue  on behalf of stowel some of who inveigh against some of the point and other  against other and some against all it be hold and maintain that stowel the  demandant be not bind by the say Act but be out of the letter or out of the  sense of the letter of every branch of it and if he be within the restraint of  any branch that he be let at large by another branch and that he be at liberty  to enter and bring his action as he have do and for the better understanding  of the Act and of the reason of make it they consider fine as they stand at  the commonlaw and the force which the commonlaw attribute to they and the  incident thereto which consist in three point first the nature of a fine and  its puissance second the preservation of ancient right by claim three what  person may make claim the antiquity nature and puissance of fine at the  commonlaw see Pollexf sheep pract Couns and as to this they say that fine have  be of very great antiquity at the commonlaw a sheep pract Couns a for they  have be as long as there have be any court of record and by the commonlaw they  be the high assurance and of the great force and puissance and so they be term  by the statute de modus to lift up fine and the reason thereof be because they  make a end of the law in bring quiet and repose for the law have no other end  but repose and the law be ordain to put a stop to contention and to make peace  and this do a fine and from hence it have its name as the statute b Edward cap  stat b of fine show which say forasmuch as fine levy in our court ought and do  make a end of suit and therefore they be call fine principal c and in the  beginning of the fine it show its name and quality for it have these word this  be the final agreement c so that in the beginning and end there be agreement  and peace and the chief cause why it make peace and agreement be c sheep pract  Couns c because it bind all stranger except those who have defect if they do  not enter or make their claim within the year and therefore it may well be  call of great Plowden er p puissance d Pollexf d for there be no other  assurance of equal puissance except a writ of right where the trial be by  battle or the great assize and so the say statute of fine say and therefore  they be call fine principal where after wage of battle and the great assize in  their case ever they hold the last and final place and sander say e   Litt b    a Pollexf finch finch e that a recovery by writ of right where the trial be by  battle or the great assize be peremptory to all stranger if they do not enter  or bring their action or make their claim within a year after except such  stranger be within age or have other defect as excuse they from make their  claim within a year after the fine levy and to this purpose he cite Bracton  not as a f see Fitzherbert guard hold by all the court that Bracton be never  take for a author in our law and accord Catline in cite he post g say he do  not cite he as a author but only as a ornament to his discourse and the like  be say per shower arguendo show see fortesc Rep f author in the law for he say  that Bracton and Glanville be not author in our law but he say he cite he as a  ornament to discourse where he agree with the law g see bract foe b Fleta lib  cap g and Bracton say be sound take out ex maintaining silence et de recto pro  diminution clamei when finalis concurrence agreement alleviate be well  recovery in breve per great to swear falsely and as a proof that the law be  also so upon a recovery by default in a writ of right where final judgement be  give he cite the say of Herle in a formedon in reverter in h m Edward pl  Fitzherbert faux de recov h Edward where he say if you seize I of my land and  afterward a bring a writ of right against you and you join the mouse upon the  mere right and make default after the mouse join he shall recover to he and to  his heir for ever quit of you and your heir for ever and if I do it put in my  claim within the year and day I be bar for ever for there he say to watch et  non to sleep jura to come to help so that by Herle nonclaim by a year and day  upon recovery by default in a writ of right where judgement final be give be a  good bar by the commonlaw but he say that in these case of a I S p   b a   a  booth I recovery in a writ of right and also upon a king S p vent king fine  executory levy the recovery and the fine ought to be execute by entry or  execution by suit for transmutation of the possession be a part of notice to  stranger and give they a opportunity of bring their action or of make their  entry within the year and day afterward and unless the recovery or fine be  execute none shall be bar by nonclaim l t Edward a Fitzherbert continual claim    b   a Inst booth l and to prove this he cite the case in m Edward in a writ  of right where a fine levy and not execute and nonclaim within the year and  day after the fine levy be plead in bar and there it be debate whether or no  it shall be a good bar and the fine be sur conusance de law come Ceo and ill  avoit de son do and the land be render for life to the conusor and so it  continue a year after without any transmutation of possession and there it  seem by the better opinion that nonclaim be no bar and it be there say that if  one recover in a writ of right accord to the opinion of some a privy and a  stranger shall avoid this recovery if claim be not put in within the year but  if the tenant retain the land all the time it be not necessary for a man to  put in his claim m   a m and it be say that one of the cause why nonclaim by a  year and a day after a recovery in a writ of right where the trial be by  battle or the great assize shall be a bar be in respect of the notoriety of  battle or the great assize which be more public and notorious in the country  than trial in other action and in the other case where judgement final be give  by default it be say but not precise that in such case n see die pl n  proclamation use to be make before judgement in order that people may have  great notice thereof and for the sake of this notoriety the statute of fine  ordain that note and fine hereafter to be levy in Plowden er p our court shall  be public and solemnly read and that in the mean lime all plead shall cease  and this shall be at two certain day in the week accord to the discretion of  the justice and this perhaps be ground upon the usage if there be any of make  proclamation upon default in a writ of right to the intent that the country  may have the speedy notice thereof and Catline chief justice of England and  dyer chief justice of the common bench agree with sander that by the commonlaw  nonclaim be peremptory to the right of a stranger as well after recovery in a  writ of right as in a fine and to that purpose they cite diverse authority out  of Bracton Hengham and other and dyer say he imagine that Plowden public  proclamation be make in a writ of right upon default before judgement but he  have never see all authority thereof and from this usage in a writ of right he  say he conjecture that the use of make proclamation in a formedon upon default  or reddition be first derive a t h b Stath proclamation Fitzherbert bro m h a  booth a and here upon he cite the case in t h where in a formedon against  three they come in and confess the action of the demandant wherefore  proclamation be make to any that will come and show why the demandant ought  not to recover upon their confession and thereupon one come in and show that  he have feoff the tenant upon condition of payment of certain money at a  certain day which he have pay and one of the tenant make one of his servant to  bring this action against they in order to make he lose his land and his money  by collusion and he pray that no judgement may be give and upon this the  tertenants be examine and upon the examination the matter be find and richil  say the demandant in this writ shall not have judgement before that Gabriel  have blow his horn and the tenant find mainprize to attend the judgement of  the court if the can be find maintainer of this disceit and he say that  Fitzherbert and Statham in their title of proclamation say that proclamation  shall be make in such case and they add quaere by what law and so they who  argue on the part of the demandant conclude that fine be of the great  antiquity and next to a recover in a writ of right be of the great force and  puissance and hereupon brown say that by reason of the highness of a fine and  of the peace and repose which it carry with it it may be term Finis law et  produce law et exitus law et execution law the preservation of ancient right  regard by the commonlaw and the time limit by it for claim to be make but he  and the other say that notwithstanding its highness and puissance yet in the  consideration of a fine there be one thing which be always to be observe and  couple with it and that be the former right which man have to the land which  the first founder of our law always regard so that notwithstanding the  highness of the fine they make provision for the preservation of ancient right  and it be never their intent that by raise up the one the other shall be  suppress but that both of they shall be guide by reason and be preserve within  the limit thereof and for this cause they ordain a mean to preserve the  ancient right and that be by entry action or claim within a certain time  videlicet within a year and a day after the fine levy by which entry if it be  lawful or by recovery by action the fine be utter annul not only as sander say  against he who enter lawful or recover but also against all those who have a  more ancient right than he who enter or recover for he say after a fine levy  the possession ought to continue a year and day accord to the purport of the  fine and if it do not but one enter or recover and so avoid the possession  then the fine by the commonlaw be avoid not only against he but against all  other that have right paramount although they do not put in their claim within  the year and day after the fine and for proof hereof he cite b h Edward  Fitzherbert continual claim Inst vin Abr title fine f a pl sheep pract Couns b  Edward which agree herewith as he say and dyer afterward affirm this and say  as the lord who have annul by disceit a fine at the commonlaw have restore the  right to he who levy the fine so have be who entry be lawful annul the fine by  his entry within the year and day and put at large the former right of other  which without claim or action by they within the year and day will otherwise  have be bind and sander go Plowden er p further and affirm that if the right  paramount be actual bind yet if the estate which pass by the fine be afterward  defeat the right paramount be restore and hereupon he put this case videlicet  c west Symb pt foe a sheep pract Couns   read on fine vin Abr title fine f a  pl say contra Leon per periam I c he that abate after the death of tenant in  feesimple make a feoff upon condition and the feoff levy a fine and a year and  day passes without entry or claim by the heir now the conusee and all who come  under he be bar from plead such fine before the statute of nonclaim but if  afterward the condition have be break by reason whereof the abator enter for  the condition break then the heir may have a assize of mortdancestor against  the abator and he have no defence against he for he can claim by the conusee  nor under his estate for he have defeat his estate and if he will plead in bar  of the assize of mortdancestor the fine levy to the conusee and say that he  have his estate the matter of the avoidance of the estate may be show in  avoidance of the conclusion for he can claim privilege by a estate which he  himself have defeat d west Symb pt foe a sheep pract Couns d and he say that  the law since the statute of be that if the estate contain in the fine be  defeat within the five year the fine have thereby lose its force not only  against he who defeat it but against all other that have right or title  paramount and who do not put in their claim within the five year after the  proclamation although it be so that he who defeat it bring his action within  the five year and have not judgement and execution until seven year be pass  after the proclamation and also he say that continual claim upon the land or  among the neighbour out of the land where he dare not enter shall disturb the  fine if the entry be lawful and it be also say on this part that before the  statute which oust nonclaim a stranger who have right may come in within the  year and put in his claim upon the e but this be no such claim as shall avoid  the statute of h Leon brazier case Inst e record of the fine quod Catline et  buyer to go away and they say that the entry be thus videlicet f see Fleta lib  cap Inst f Talis go for sale et to put at clameum suum ad term infra scribe  and it be write as dyer say in the record of the foot of the fine videlicet  under the fine and he say he have see that such entry be make in the reign of  five king next before king Edward and Catline allege that he have see diverse  record of such entry but he say that the day of the entry of the claim be not  put in the entry of some so that it do not appear in the record nor be it  testify that it be enter within the year and day but yet he say it be to be  intend that it be enter within the year and day and it be not permit to be  enter after the year and day and he cite the word of Bracton who write that  such claim ought to be make within the year and day but he say that he do not  cite he as a g ante f g author in our law but for consonancy and order Plowden  where he agree with better authority a h Edward Fitzherbert continual claim a  and dyer say in Edward in a who in vita a fine and nonclaim be plead against  the woman demandant and she allege claim enter by her in the foot of the fine  and there be a variance in her name for the name which she now use be  different from the name in the entry of the claim and yet she there join issue  that she be the same person who make the claim upon the record and note the  Lord dyer define claim in this manner videlicet claim be a challenge by a man  of the propriety or ownership of a thing which he have not in possession but  which be wrongful detain from he upon the whole therefore there be b Inst vin  Abr title fine g a pl Andrews Rep Curson b four claim at the commonlaw to  avoid fine that be to say two by record and two in pais by record one be a  real action bring within the year accord to the truth of the case the other be  entry of claim in the record of the foot of the fine in pais one be a lawful  entry into the land by he that have right and a expulsion of the conusee or  tertenant the other be continual claim wherefore those who argue on the part  Plowden er p of stowel say that notwithstanding the puissance of fine at the  commonlaw yet respect be have to ancient right and the law provide these claim  for the preservation of they as to the three point videlicet what person ought  to make claim to avoid be conclude by the fine they say that those ought to  make it who be stranger to the fine and have c Inst c present right for  inasmuch as the time of entry or action or claim be but within the year he who  within the year have cause thereof ought to make it and none other d Inst west  Symb pt foe a Curson d and therefore if there be tenant for life the remainder  for life the remainder in fee if the first tenant for life alien and the  alienee levy a fine he in the remainder for life may enter and defeat the fine  and not he in the remainder in fee and if he enter this shall give benefit to  he in the remainder in fee for against he the fine shall be oust and by the  same reason if he make continual claim he in the remainder in fee shall ever  after take benefit by it and shall avoid the fine as sander say e Inst sheep  pract Couns e and it be say if the tenant for life will not make claim within  the year but suffer the year to pass he in the reversion or remainder be bind  at the commonlaw or all of they that be the particular tenant and they in the  remainder or reversion have but a year after the fine levy and Catline  afterward in his argument affirm this say that it be a great mischief that by  the latch of tenant for life or tenant of other particular estate he that have  the remainder or reversion in fee shall be bind for ever f   Litt b post f per  Catline f and he say that this mischief be one of the great cause of make the  Act of Edward cap which oust nonclaim and brown say that the statute of  Westminster cap provide for the donor in tail in this case long before the  statute of Edward for the word of the statute be nor shall it be necessary for  such heir or those to who the reversion belong to put in their claim so that  this statute provide that it be not necessary for tenant in tail to make claim  ex quo sequitur that nonclaim shall not prejudice he nor he in reversion and  if the tenant in tail die within a year after the fine levy he in the  reversion by the say Act have no necessity to make his claim and so this case  be remedy from whence it may be collect lead that before he shall have be bind  but brown demand inasmuch as claim be necessary for the salvation of former  right who ought to make claim and to this he say as also do Welsh and sander  and all that argue on the part of the demandant that he who be of full age  ought always to make the claim within the year for he have understanding and  reason to know his right and to know whether his entry be lawful and to enter  or make continual claim or bring his action accord to his right and because  such a one have reason and discretion it be reasonable that he shall be bind  to a certain time but a infant have no reason nor understanding and therefore  it will be utter unreasonable to bind one to a certain time who have not  discretion to know his right nor to understand what action he shall bring nor  when or how he shall enter or make his claim for which reason he and other  that be in like case be by the commonlaw exempt from the law of nonclaim g see  Litt g and this be prove by the implication of the say Act of Westminster cap  do gift conditional which say nor shall it be necessary for such heir or those  to who the reversion belong although they shall be of full age in en gland and  out of prison to put in their claim by which word although they shall be of  full age it be imply that if he be within age he be not drive by the commonlaw  to make his claim the like appear by this statute h stat Edward stat h do  modus to lift up fine which be as follow videlicet and the cause why such  solemnity ought to be do in a fine be because a fine be so high a bar and of  so great force and of so strong nature in itself that it clear conclude not  only such as be party and privy thereto and their heir but all other people of  the world be of full age out of prison and of good memory Plowden er p and  within the four sea the day of the fine levy in the original it be fill ne  mettront lour claim de lour action pug Le pay deins lan et Le jour which read  have be general follow but Mr Cay in his preface to the abridgment of the  statute propose another which he say be a more probable read thus fill ne  mettront lour claim you all record laction you Le pais dein lan et Le jour  against the construction here after make by Catline upon the word pur Le pay  if they make not their claim of their action within a year and a day by the  country and note where some book of the say statute have the word and Le clerk  forclose c Catline say that it shall be as above and el clear forclose that be  it clear or utter foreclose or conclude and he say that the word pur Le pay be  the same in sense with pur Le pais that be that the action shall be try by the  country videlicet by man wherefore inasmuch as the statute say that a fine  clear conclude all man who be of full age out of prison and of good memory and  within the four sea therein it be imply that they who be within age or lie  under the other defect be not bind to make claim and all this be ground upon  good reason I   a b Fleta lib cap west Symb pt foe b I for a infant be void of  sense can know his right nor understand what action be proper to be bring for  it nor can he make his claim or do other act which require discretion king  Fleta lib cap king and in the like case be he who be of unsound memory Plowden  a   Litt a Fleta lib cap vin Abr title imprisonment d pl west Symb pt foe a  sheep pract Couns a and he that be in prison at the time of the fine levy who  by intendment of law be keep close and without conference with other or  intelligence of thing abroad and who have not liberty to go at large to make  entry or claim or to seek counsel b Fleta lib cap b as also he that be beyond  sea at the time of the fine levy who be presume not to have knowledge of any  thing do in England ought not in reason to be bind by their default of claim  for they be as void in intendment of law of any knowledge of the fine levy as  a infant or man of unsound memory be of sense and reason and therefore they  shall not be bind to make claim c but dyer say that a femecovert be not  mention in any of the act but she shall be bind by nonclaim for she have a  husband who may make claim and he say that in one of the precedent which he  have see a claim be enter in the foot of the fine by baron and feme and sander  say that a infant and the other who be not bind to make claim within a year  and day and their heir be exempt from make claim at anytime for the infant be  not bind to make claim within a year and day after he come of full age nor he  of unsound memory within a year and day after his memory be restore nor he in  prison or beyond sea after he become at large or within the realm but they be  at large for ever by the commonlaw and bind to no time d S p accord post a per  brown et sander say contra post per dyer d and brown say that if a seize have  levy a fine before the statute of nonclaim the disseizee then be of full age  and the disseizee have die within a year before entry or claim make or action  bring and the right have descend to his son and heir within age he be at large  and be not bind by its have first attach in his father for the same reason  which will have exempt he from make claim within a year and day be a infant if  he have have the right at the time of the fine levy exempt he be a infant now  that he have the right by descent within the year and day for no folly shall  be impute to his father for not enter or make claim inasmuch as he have time  to do it during the whole year and day and he can not be say to have commit  folly in surceasing his time until the whole time be elapse because he die  before it be elapse and when his right descend to the infant he be not bind to  time in this case any more than in the other where he have the right at the  time of the fine levy so that the reason of the commonlaw be the same in both  the case and sander say if there be tenant for life with remainder for life  and the reversion or remainder in fee to a infant the first tenant for life  alien and a fine be levy now the tenant for life in Plowden er p remainder  ought to enter or make the claim but if he have die within the year and day  the infant be at large and shall not be bind although the year and day have be  pass without entry action or claim by he causan that this only is apparent ex  speech brown wherefore they who hold the law to be with stowel conclude that  fine be of the great force by the commonlaw but yet not so great as to destroy  former right which be much regard and for the preservation whereof a time be  give out of which time infant be exempt and afterward videlicet by the Act of  u Edward cap nonclaim be oust sander say that one of the great cause thereof  be the troublesome time of war which hinder the people in those day from take  notice of fine and from make their claim e booth say contra   Litt a e and he  say that by equity thereof the law of nonclaim be take away in a writ of right  for there be the same reason in both the case and the law which in word take  away the one in sense take away the other f   Litt b ante f per Catline f  Catline hold that the unreasonableness of the law in that they in reversion or  remainder be bind by the latch or maliciousness of the particular tenant for  life who will not enter or make claim within the year and day be one of the  great cause of the repeal of the statute of nonclaim the law of nonclaim be  oust they who hold the law to be with the demandant say that in process of  time a defect be find in the validity of fine for whereas they use to be the  strong assurance that people can hare of their inheritance after the statute  which oust nonclaim they lose their force and become very weak and in effect  nothing more than g finch finch g feoff of record by reason whereof the  security of man inheritance be take away and the foundation which establish  they be break up which introduce great strife and contention among the subject  of the realm and which the maker of the Act of h intend to reform as it appear  by the preamble of the say Act whereby it seem they have three thing in view  the first be to enhance the reputation of fine and to make they of a puissant  nature second to preserve ancient right so that they be pursue within a  certain time three if the ancient right at the time of the fine levy or after  within the time limit be in a infant or other who have not reason or knowledge  of the fine or want liberty to favour they until such time as the impediment  be remove and then to give they sufficient time to pursue their right in which  three point the maker of the Act of h seem to have pursue the reason of the  ancient commonlaw in fine before the statute of nonclaim be oust and in so do  they build upon a firm foundation and for the better apprehend the same every  branch of the Act be to be consider by itself which be do it will appear that  stowel now demandant be out of the letter or at least out of the sense of the  letter of every branch and if he be within the letter of any branch he be let  at large by some other branch and so be at liberty point whether ale demandant  shall be bind by the body of the Act of h cap and as to the body of the Act  which be the first of the four division it consist in these word of ordinance  videlicet and the say proclamation so have and make the fine to be a final end  and conclude as well privy as stranger to the same except woman covert other  than be party to the say fine and every person then be within the age of year  in prison or out of this realm or not of whole mind at the time of the say  fine levy not party to such fine which word be to be consider and here it be  to be observe that this ordinance be general videlicet that the fine Plowden  shall be a final end and shall conclude as well privy as stranger a die pl  post h a which word if the Act have stop there will have conclude all and the  Act may have be call general in letter but afterward it except infant and the  other contain in the exception in which case Harper Bendloe Welsh brown and  sander also say b cart Curson b it be to be know that that which be except out  of the Act be out of the provision of the Act and there be no ordinance make  in relation to it but it be as full exempt out of the Act Plowden er p as if  the Act have never be make c bro reservation   Litt a c as a feoff of a manor  except a acre make the acre never to pass as Harper say d cart Curson d and a  lease of all my land in dale except WhiteAcre be as void for WhiteAcre as if  no lease have be make and a gift of my horse except my black horse be as void  for my black horse as if no gift have be make for that which be except out of  the general word be in the same case as if nothing have ever be speak of it  and Welsh say that there be a diversity between a exception and a save for a  exception exempt clear but a save go to the matter touch and do not exempt and  so this general purview that the fine shall conclude stranger except  womencovert infant and person out of the realm and of unsound memory be make  only against other than those that be except and be of the same effect as to  stranger as if the Act have say that the fine shall be a final end and shall  conclude all stranger be discovery of full age not in prison and of sound  memory and none other and against such as be not in such degree it be a  general Act and against no other stranger then here stowel the grandfather be  a stranger to the fine and of full age at the time of the fine levy eigo he be  bind but stowel the demandant be a stranger to the fine and within age at the  time of the fine levy ergo he be except and be in the same degree as if the  Act have never be make so that he be at liberty and bind to no time within age  or at full age if there have be no other word afterward in the Act and  therefore if stowel now demandant have have right at the time of the fine levy  he have be leave at large by this exception and may have enter or claim the  land or year after if there have be no further provision in the Act for which  reason in order to bind to a certain time infant and other who be except the  clause afterward be make which bind they to five year next after their  imperfection or impediment remove within which if they do it pursue their  action or enter the last clause conclude they so that those who be let at  large by the exception be restrain by the last clause make touch they which  last clause be entire to the disadvantage of those who be contain in the  exception but they say it have be object by some of those who argue on the  other side that the infant and other contain in the exception ought to be take  for such as have right at the time of the line levy for it have be say why  shall they be except if they have no right for if they have no right they may  be bar without any fine with proclamation videlicet by traverse of their right  and the statute be make to conclude those that have right and be remiss in  make their entry claim or suit and none other for it be not necessary to make  a law to bind those who have no right and who may be easy bar for default of  right but the Act be make to conclude those of their right who have right and  be remiss as be aforesaid and none other out of which general purview make to  conclude those who have right they be except who be name in the exception and  who have be touch by the generality of the purview if no exception have be  make which person so except be intend by the maker of the Act to have right at  the time of the fine levy and this say they be prove by the clause afterward  which bind they to a certain time the word whereof be those except have any  right or title or cause of action to any of the say land or hereditament shall  take their action or entry within five year next alter they come and be of  full age of year out of prison unconvert within this realm and of whole mind  which word have right or title say they ought to be intend have at the time of  the fine levy and in sense amount to the same as if it have be express have at  the time of the fine levy any right or title or cause of action to the land c  so that this branch say they prove that the exception be intend of such person  and no other as have right or title at the time of the fine levy and such say  they be not the demandant here for at the time of the fine levy and also of  the proclamation make the right be in stowel the grandfather and not in stowel  the demandant for the right come to he afterward so that the demandant be out  of the exception in answer to this objection they urge and especial brown  strong that the general purview which exclude stranger be not only make  against those who have right but against all other who will pretend title  though they have no right for the design of the Plowden er p statute be to  establish general peace and quiet and to bar as well a pretence of right where  there be no right in fact as where there be one for if one who have no right  will pretend a action against the conusee of a fine after the five year he  shall plead the fine with proclamation against he as well as if he have have a  right and shall not be drive to confess that there ever be a right in he so  that the right be never examinable where he plead the fine and proclamation  but there he shall demand judgement if against the fine with proclamation levy  the demandant ought to maintain his action and so he shall e palm e rely upon  the conclusion without confess any right in the demandant and thus the  conclusion and bar by the fine be by the intent of the maker of the Act make  universal videlicet as well against a pretend right where there be no right in  fact as where there be a right and it be lose by latch and be so take it be  make more universal and contribute more to the public repose of the realm  wherefore the purview be make against all stranger general videlicet as well  infant as man of full age whether they have right or not and accord the  exception be make general videlicet except womencovert and every pegson be  within the age of year c and it do not say womencovert or infant have right at  the time of the fine levy but as general Plowden as the purview be so general  be the exception that be to say the person of infant be except general and not  such infant only as have right and therefore stowel now demandant who be a  person within the age of year at the time of the fine levy be absolute except  out of the purview and consequent out of the body of the Act for that which be  except out of the purview be not any part of the purview but they say the  counsel on the other side who argue that stowel the demandant who be out of  the express letter be comprehend within the purview have seek help from the  intent of the maker of the Act which intent be not find in the express letter  of the purview and exception but be gather from reason and for the better  illustration thereof they have collect a presumption from another clause  videlicet from the clause make touch those who be except where the say word be  videlicet have any right or title or cause of action whereupon brown say to  those of the contrary opinion to he remember this and allow we the like  reasonable intent and aid of other clause to prove the intent where the  express letter fail and as to this last clause he say it be first to be  remember that all infant who have right at the time of the fine levy be except  and also all infant who have not right at the time of the fine levy be except  and this last branch enact that all woman covert n party to the fire and every  person within age in prison or out of the realm and not of whole mind at the  lime of the fine levy and ingross and by the Act before except have any right  or title or cause of action to the land shall take their action or lawful  entry accord to their right and title within five year after they come and be  of full age of year out of prison discovery c so that it do not say have at  the time of the fine but have general which shall be intend as Bendloe brown  and sander say have at the time of their entry or suit take within the five  year and not have at the time of the fine levy office for it may be that a  infant have right at the time of the fine levy and have not right when he come  of full age and in such case the statute do not intend to give he entry or  action at his full age and if the word have shall be intend at the time of the  fine levy then by the word he shall have a action or entry which be lawful at  that time which can be so intend but have must of necessity be understand have  at the time of the suit or entry take within the five year whether this right  be vest in he at the time of the fine levy or afterward come to he within age  as in our case it do in fact and although infant be except general that be to  say as well those who have right at the time of the fine levy as other who  have no right yet it be to no purpose to bind any to the time of five year but  those who have right at their full age and at the time of the action or entry  take within the five year for the former right which be in the person except  at the time of the fine levy be not so much the cause of bind they to a  certain time as the right which they have at the time of the action or entry  take within the five year after their full age or imperfection or impediment  remove so that this right which they then have and none other be the effectual  cause of bind Plowden er p they to action or entry within five ear next after  their full age or the other imperfection or impediment remove for which reason  there do not appear any kind of intent in this last clause that the person  except shall have right at the time of the fine levy but there be great reason  to take the word have accord to its literal sense and meaning videlicet at the  time of the action or entry take wherefore there be no word in the exception  nor in the clause for the direction of the person except nor in any clause  afterward which induce we to think that it be the intent of the maker of the  Act that the person except shall be such only as have right at the time of the  fine levy but it be within the word and intent also of the Act that they who  have not right at the time of the fine levy be except as well as the other and  that they if the right come to they during their nonage shall have five year  after their full age as well as the other who have right at the time of the  fine levy and which continue in they until their full age whereupon it follow  that stowel the demandant who have not right at the time of the fine levy be  except and for the right which come to he during his nonage he have five year  after his full age to enter or bring his action and further brown argue and  say that if no infant be except but such as have right at the time of the fife  levy from thence it follow that stowel the demandant be not bind by the  purview before the exception because he have not right at the time of the fine  levy for the Act except none but those who be bind before for it be not the  nature of a exception to except a thing not comprehend before and it will be  in vain and idle to except one who be not bind before and also it be to be  intend that the purview be not more full against any stranger than the  exception be as to infant stranger so that the latitude of the exception be  measure your the latitude of the purview for it be the intention of the Act to  exempt out of Abe whole purview infant and the other contain in the exception  inasmuch as they can not know how to enter or bring their action by reason of  their want of discretion and other defect ex quo sequitur that if no infant be  except but such as have right at the time of the fine levy then the purview  which be not large than the exception be against none but those who have right  at the time of the fine levy and then inasmuch as stowel the demandant be not  except because he bad no right at the time of the fine levy ergo he be not  bind by the purview which be only against those who have right and therefore  stowel now demandant be at large so that by necessary consequence the argument  and the conclusion thereof be retort upon he who allege that stowel the  demandant who be a stranger and have not right be not except for from thence  it will follow that he be not bind by the premise of the Act and therefore as  it seem to he wherever way data videlicet whether stowel the demandant be  except or not he be not bind for if he be bind by the Plowden purview he be  afterward except and if he be not bind the purview there be no necessity for  he to be except as be be leave at large that he be out of the body of the Act  consist of the purview and the exception that be he be out of the letter and  intent thereof by both the argument whether he be comprise within the  exception or not and so he be at large and have time to enter within five year  after his full age point admit that the demandant be not bind by the body of  the Act because comprise within the exception whether or no he have pursue the  lime prescribe by that branch of the Act which bind the person except to five  year after their imperfection remove then as to the second point videlicet  admit that stowel now demandant be come prize within the exception whether or  no he have pursue the time prescribe within the branch afterward make touch  the person except which branch bind they to take their action or lawful entry  accord to their right and title within five year next after they come and be  of the age of year out of prison uncovert within this realm and of whole mind  and if they neglect so to do that they shall be conclude for ever by the say  fine and as to this it appear plain by the plead that he have pursue the time  limit in the say clause for at the time of the fine levy he be of the age of  three year and a few month at the time of the death of his grandfather which  be the that day of August year Henry he be of the age of six year at which  time the right first vest in he and he continue within age until e that day of  August year mary when he come of full age Plowden er p and the d day of  October then next follow which be within five year after his frill age he  enter whereupon he have bring this action so that without question he have  full pursue the tenor of that branch point admit that the demandant be bind by  the body of the Act and not comprise within the except whether or no he shall  be aid by the first save and as to the three point videlicet admit that the  demandant and his grandfather also be bind by the body of the Act and that the  demandant be not comprise within the exception whether or no he shall be aid  by the first save and as to this Welsh brown and sander hold that stowel the  demandant shall be aid by the sense and reasonable construction of the word of  the first save and first of all they say that act of parliament be law  positive which consist of two part a Hardr ante d post a f a the first be the  word of the Act the other be the sense for the letter without the sense do not  make the law but the letter and the sense together and every one that will be  acquaint with the law positive ought to understand they both and the way to  apprehend the sense be to consider the commonlaw which be the ancient of every  positive law as brown say and have a place in the exposition of the law  positive and thereby the mischief and inconvenience which be in the letter be  to be consider and avoid by the application of reason and by put such b post a  b construction upon the letter of the law positive as shall exclude all rigour  and mischief and stand with equity and good reason then here the word of the  Act be that the fine shall conclude as well privy as stranger such be the  letter but who be a privy and who be a stranger the letter do not show as  brown say but this the commonlaw which be a master in exposition show we  videlicet c bendl c he be a privy who be not party and between who and the  party there be privity of blood as the heir for proper those who levy the fine  be distant party and their heir be privy and the fine now conclude privy for  all privy be not conclude before as the heir in tail but party be conclude by  a fine at commonlaw and therefore it be not necessary that the letter shall  extend to they d oh bendl d and stranger be those who be not party to the fine  nor privy as stowel the grandfather here be who be a mere stranger to the fine  and to the blood of the party to the fine and therefore he be include and  touch by the body of the Act yet sir there be a save to he and his heir such  right claim and interest as they have to or in the say land at the time of  such fine engross so that they pursue their title claim or interest b way of  action or lawful entry within five year next after the proclamation have or  make and therefore although the fine be make a final conclusion to stranger  yet the maker of the Act have regard to former right and ordain remedy for the  preservation of they which be agreeable to the nature and consideration of a  fine at the commonlaw before the statute of nonclaim videlicet in give time to  make claim thereto so that it seem the reason of the commonlaw be the  foundation of this Act and therefore the fine after the proclamation be become  of great force and puissance but nevertheless the former right be save and to  such intent be the first save make by which the right which be confess to be  in stowel the grandfather be save not only to he but to his heir also so that  they pursue their title claim or interest by action or lawful entry within  five year after the proclamation have or make and so it be to be note that  time be give to he and to his heir to pursue the right within five year so  that he and his heir have election give they to commence the pursuit of their  right at what day they please within the five year and it shall not be account  the folly of he or his heir if they protract the time until the last year or  the last day because the Act give they election at what time to pursue it  within the five year so that no folly or latch can be impute to stowel the  grandfather or to his heir until the whole five year be elapse and then when  stowel the grandfather be dead in the mean time by the hand of God and the  right be descend to his heir who be under the age of six year it be not the  intention of the maker of the Act that such heir shall be drive to make his  claim by action or entry for at such age he have no understanding Plowden er p  nor discretion to know his right no to make entry or commence suit and such  person be never intend by the maker of the Act but the save be general to he  and to his heir wherein stowel the demandant be include be u see he be heir to  he who have the right but there be a condition in the save videlicet so that  they pursue their title c which word they be as much as that he and his heir  shall pursue their title c within five year and there the heir intend be such  as be of full age of whole mind uncovert at large out of prison and within the  realm for such have the full use of reason and be free from any impediment and  folly flight be impute to they in not pursue their right and the maker of the  Act never intend to bind any who have right but those only to who latch of  suit or entry may be impute and latch of suit or entry can be impute to a  infant who God have not endow with understanding or reason for Plowden if he  shall take a action his right and his action may be such as a writ of right  and the like which he can not prosecute nor compel the other party to answer  to during his nonage but the parole shall demurrer and then it will be in vain  to force one to take a action during his nonage which he can prosecute nor  compel the other party to answer to during his nonage and such never be the  intent of the maker of the Act but the heir mean by the Act shall be take in a  reasonable sense for such as be of full age and void of the other imperfection  or impediment and this as strong as if the word have be express thus videlicet  so that the party who have right and their heir of full age of whole mind and  void of the other defect or impediment pursue their title c within five year c  a ante b per brown a for as it have be say before such construction ought to  be make of the word of act of parliament as may best stand with equity and  reason and most avoid rigour and mischief and if the word heir shall be so  expound here as to comprehend infant perhaps but of a year old or under who  can speak and to impute latch to they so that they shall lose their right for  default of suit or claim during the time that they be void of reason and  understanding by the institution of God himself will be very hard and  inconvenient and hereupon sander say that by the Act of Westminster cap if one  name a seize in assize vouch a record and fail at the day he shall be imprison  for a year b m Edward Fitzherbert assize bro seize failer c t h b per haw bro  coverture parliament abridgment of assize a dr Stud lib cap foe Inst hob h h p  c Bac Abr vin Abr title seize king pl title enfant g pl b yet if a infant name  a seize vouch a record and fail he shall not be imprison as it be adjudge in  our book notwithstanding he be contain in the letter of the statute as stowel  the demandant be here in the name of heir but forasmuch as he have not  discretion the expositor of the law heretofore have take it that a infant be  not intend in such case although he be comprehend in the letter as well as  another and accord it have be adjudge c Bac Abr c so he say if a infant be a  bailiff or receiver and he account before auditor assign and be find in arrear  the auditor can commit he to the next gaol and yet the statute of Westminster  cap l be general in such case videlicet that they may commit all bailiff and  receiver but a infant who have not discretion be not intend by the reasonable  sense of the letter nor be he bind by the Act d h h p c show Bac Abr d so  Welsh and he also say that if a infant be convict of the ravishment of another  ware he shall not be imprison for the king fine and yet the statute of Merton  cap be general in this case videlicet whatsoever layman shall be convict  thereof he shall be imprison and hereupon Welsh say that if a woman consent to  a ravisher the next of blood to who c shall have title to enter c by the  statute of Richard cap yet if a femeinfant be ravish and she consent to the  ravisher before the age of year the heir or next of blood to who the land  ought to come c shall not enter and yet she be within the letter videlicet if  lady daughter and other woman consent but she be of that age be under the age  of consent because she be without discretion so that though she be within the  purview of Plowden er p the Act by the generality of the word yet she be let  out of it by the help of the reasonable construction make of they and so here  the word heir ought to be intend heir of full age for if we consider the  nature of the act which they be to do videlicet to pursue their action or  claim it will show we the manifest necessity of make a reasonable exposition  that be it will inform we that where act of parliament enjoin the do of any  thing which require sound and perfect reason in the execution of it as the  prosecute of suit do the maker of the Act do not intend it to be do by they  who have not perfect reason for if so their law will be utter against reason  for to insist that a infant or man of unsound mind who have no reason but live  in ignorance invincible as sander term it shall use reason or else that they  shall lose their inheritance will be very unreasonable which be never to be  presume in the legislature so that discretion in the exposition of a statute  always mitigate the violence of the letter as Welsh term it e bro coverture dr  Stud lib cap foe die pl   Litt b Inst   b show vin Abr title enfant b pl say  contra show per Eyre I e but a infant shall be bind by the statute of cessavit  and of f godb f be and the like although those statute be general for cesser  be a injury to the lord and waste be injurious to the lessor and he himself  acquire the estate and Welsh say that the law presume that he who have policy  to acquire a thing have reason to defend the same thing g vin Abr title enfant  b pl g and so he say if a infant lord who have title to enter for mortmain do  not enter within the year or do not enter into the land of his villain before  the villain have alien the land he shall be bind by latch for there he have  but a title to a thing which never be in he and it be not like our ease here  where the demandant have a right by descent upon a seize and wrong do to his  ancestor which right be favour by all law and especial by this Act of fine  which provide for it in a special manner and do not exclude any one from the  benefit of it unless there be latch in he which can be impute to a infant who  have not understanding to judge of the time and it be say that in the case  upon the statute before recite where infant who be within the generality of  the letter have be take out of the letter by the sense and meaning thereof the  judge who sit upon the say case take the commonlaw for their guide which be a  master in exposition the reason whereof they pursue as near as they can and  hereupon a great number of case at the commonlaw be cite where the inheritance  of infant be favour and they shall not be prejudice by latch h ass pl a bro  descent t h a per Prisot dr Stud lib cap foe Litt h as descent shall not take  away their entry I t h a per Prisot bro Garranties Fitzherbert entry congeable    Litt a   a Poph keb I nor shall warranty bind they where it may be avoid by  entry and many other case be cite which it be not my design to recite and also  many case be cite where the latch of infant and other act shall bind They king  vin Abr title enfant b pl king as for waif estray good take of they and offer  to image or wreck or take by enemy and not retake before sunset or sell in  marketovert or act do by they by reason of their office l t Edward pl p Edward  b per Litt dr Stud lib cap Perk   Litt a Poph vin Abr title enfant I pl l as a  gift of good as executor m see ante a and the book there cite m or act do by a  infant king or for necessity n p Edward a per vavisor dr Stud lib cap Perk  finch   Litt a   a Poph roll r cro e cro I Leon godb cart palm side roll Abr  pl Bac Abr vin Abr title enfant c and g contra h h b per Paston n as a  obligation for meat and drink and a great number of other case between which  and the reason of this Plowden er p case many diversity be make but this case  rest upon the preservation of the inheritance of a right descend which be  favour by the same statute of h and therefore latch shall not be impute to a  infant nor shall he be prejudice thereby by the intent of the maker of the Act  which intent they collect from reason and Plowden therefore they take it that  the heir intend in the pursuit of the right shall be heir of full age and  hereupon brown and sander say that in such construction the sense of the  commonlaw touch fine before the statute which oust nonclaim shall be follow  which be the foundation of this Act for at the commonlaw fine be of as great  estimation and force as they be at this day by this Act and as at the  commonlaw the reservation of ancient right be consider so that they be pursue  within a certain time so be they by this new statute a S p ante d per brown  say contra post per dyer a and at the commonlaw if he who have the former  right have be of full age at the time of the fine levy and have die within the  year his heir be within age the heir within age shall not be bind to that year  for the commonlaw will not enforce the heir within age to make any suit or  claim and without suit or claim it will not bind he and therefore in such case  he be not bind to the time of a year and if it seem reasonable to the founder  of our law that the law shall be so in fine at the commonlaw it be good for  the expositor of this Act to approach as near as they can to the reason of the  commonlaw which be the best b   Litt b   b b a b Inst Freem per Atkins I sand  Mod Mod p wms Bac ab vin Abr title statute e pl ante h b interpreter of the  word of positive law and especial in this case where the commonlaw and the  reason thereof touch fine be the foundation of this Act which be make in a  manner to revive the commonlaw so that it seem to they and to the rest who  argue on this part that the word heir limit in the statute for the pursuit of  the right shall be intend heir of full age and that such sense of the word be  most consonant to equity and good reason as well as to the commonlaw before  the statute and that by such construction the mischief and rigour which will  otherwise follow will be avoid and that they may well enough have make such  construction of the word if there have be nothing else in the statute in  favour of it but they say further c Bac Abr vin Abr title statute e pl c that  when one branch in a Act be obscure it be usual for those who expound the Act  to examine the other branch for we may often find out the sense of a clause by  the word or intent of another clause and so here the intent of the legislature  in this point videlicet that the heir intend by the Act for the pursuit of the  right shall be of full age may be well perceive by other branch and hereupon  it be to be observe that out of the general purview v which be that the fine  shall be a final end and shall conclude stranger infant and the other comprise  in the exception if they have present right be except for their disability and  impediment and be allow the time of five year after their disability and  impediment remove and if the maker of the Act have such intent to except they  for their disability where their right be present do not the same intent hold  place where the right which be not bind until five year pass come to such  disable person within the five year yes certain for the right within the five  year and their disability within the five year be the cause which move the  maker of the Act to except they until their disability and impediment be  remove and if they make allowance for the disability and impediment to those  who have right at the commencement of the five year they ought to make  allowance for they until the end of the five year for there be the same reason  in both the case and brown say can any man presume that the maker of the Act  be so great niggard of time that they will not allow until the end that which  they allow at the beginning No certain for the former right and the impediment  and defect which be in they that have the right be the matter which they  regard and then inasmuch as the fine be no bar until the end of the five year  the disability and impediment which be in they that have the right in any part  of the five year be as much to be respect as the imperfection and disability  which be in they that have the Plowden er p right at the time of the fine  engross or at the commencement of the five year and the provision which be  make in the second save touch the future right for such as have the say  imperfection or impediment if the right or title first accrue to they show  also how careful the maker of the Act be to provide for such infant and other  as have those imperfection or impediment and none can imagine that they who  except infant and the other disable person out of the purview at the beginning  and provide for they in the end videlicet in the second save will be  regardless of they to the middle videlicet in the first save and therefore the  heir there speak of who be bind in the pursuit of the right be heir of full  age of whole mind uncovert out of prison and within the realm and none other  and as a further proof hereof brown allege another thing which he have observe  in the second save touch the future right videlicet if the person to who the  right first accrue be covert within age in prison out of the realm or not of  whole mind that then their right shall be save to they and to their heir until  they come of full age out of prison within the realm uncovert and of whole  mind so that they and their heir take their action or lawful come and be of  full age out of prison within the realm which clause he say it be enact that  if one in whole the future right first vest be within age or have the other  impediment and afterward he come of full age or the other impediment be remove  and two or three year afterward he die his heir be within age or have the  other impediment such heir after he come of full age or after the other  impediment be remove shall have five year for the word be so that they and  their heir take their action or entry within five year next after that they c  which be as much as to say next after that he and his heir be of full age out  of prison within the realm uncovert and of whole mind so that in such case the  heir ought to have five year after he be of full age and free from the other  impediment as well as his ancestor be to have it by the express letter of the  Act whereupon he conclude that inasmuch as the maker of the Act intend in such  case that the heir shall have five year after his full age where his ancestor  be of full age for the salvation of the future right vest in his ancestor and  that he shall not be bind to the five Plowden year next follow the time in  which the five year commence in the ancestor a strong they intend that stowel  the demandant shall not be bind to the five year next after the time in which  the five year commence in his ancestor for the present right which be of great  value and estimation than the future right and he and sander also say that if  a stranger to the fine who be of sound mind a vin Abr title fine W foe west  Symb pt foe b sheep pract Couns a become non sound memory b west Symb pt foe a  sheep pract Couns b or be imprison the three year after the proclamation make  and so continue until the five year be expire and afterward he become of sound  mind or be out of prison he shall not be conclude by the fine for latch in  prosecute his right can be impute to he who want memory or liberty and  therefore such person be not comprehend in the intent of the statute but in  this case if a stranger to the fine in the three year have go c ibidem west  Symb pt foe a but it seem otherwise if he be send beyond sea in the king  service by his command c beyond sea or have take d west Symb pt foe a sheep  pract Couns d husband and so have continue until the five year be pass there  he shall be bind for the go beyond sea or take husband be voluntary act but  insanity of mind and imprisonment be against the will of the party and  therefore they say that the letter ought to be construe in a reasonable sense  and they who argue on this part say that if one shall only adhere to the  letter of this statute and not have recourse to a reasonable sense or intent  beyond the express letter we shall by such kind of exposition introduce many  absurdity e sheep pract Couns e and thereupon brown say if a infant who have  present right and who be except die within age his uncle be his heir and of  full age by the letter of the statute the uncle shall not have five year but  shall be bind for the Act be Plowden er p that infant and their heir shall  take their action or entry within five year next after that they be of the  full age of year and the infant himself never come to the age of year so that  by the letter he be out of the clause but yet he be not so by the intent f  sheep pract Couns f and in such case if the infant except have right have  enter within age and by his entry have avoid the fine and afterward have come  to full age and after his full age have permit the conusee to be five year in  possession without entry or action make or bring by he now by the letter of  the Act he who be the infant shall be bar and the conusee shall retain the  land for the Act ordain that the infant shall take this action or lawful entry  within five year after that he come of full age and this he have not do but  inasmuch as within age he take his lawful entry and so avoid the fine for ever  he be at liberty year after his full age to enter or bring his action by the  intent of the maker of the Act and so he and sander say that the exception be  of person be within the age of year at the time of the fine levy g Bac Abr vin  Abr title fine W foe west Symb pt foe b a sheep pract Couns g but if the  disseizee die his wife ensient with a son the seize levy a fine and afterward  the son be bear now he be not except by the letter of the Act for the Act  except no infant but such as at the time of the fine levy be within the age of  year and none be within the age of year but such as be in a thing naturan and  in this case the son be not bear nor in a thing naturan at that time nor can  it be say that he be within the age of year at the time of the fine levy for  his age be account from the time of his birth and he be not bear at that time  so that he be out of the letter but yet he be within the intent and shall be  aid by the exception h godb Bac Abr vin Abr title statute e pl Q sheep pract  Couns h for every thing which be within the intent of the maker of the Act  although it be not within the letter be as strong within the Act as that which  be within the letter and intent also I and of the person except the letter  bind none to five year after their full age but those who be within age at the  time of the fine levy and engross which be two several time for there may be  ten year and more between the levy and the engross yet he who be bear after  the fine levy and who be a infant at the time of the engross be not at large  but be bind to entry or action within five year after his full age as sander  say as well as he who be in a thing naturan and a infant at the time of the  fine levy and engross so that the sense of the text and the intent of the  legislature avoid all absurdity king sheep pract Couns king and if a seize  levy a fine which be engross and the disseizee who be at full age at the time  of the fine levy die after four proclamation make and before the five  proclamation his son and heir be within age and continue within age all the  five year now he shall be bind by the letter of the Act for the letter do not  except he because he have no right at the time of the fine levy but yet it be  clear as sander say that inasmuch as the five year do not commence in his  father nor any part of they attach in the father he the son be except in the  intent for the intent of the exception be to except those who have right and  who be infant at the commencement of the five year l sheep pract Couns l so be  it as he say if the disseizee be of whole mind at the time of the fine levy  and engross and after the four proclamation and before the five he become non  sound memory or be imprison and so continue all the five year and afterward  become of whole mind or out of prison he shall have five year after this by  the intent of the exception and of the clause afterward touch the person  except although the text itself do not warrant it and many other case be put  by Welsh upon this and other act of parliament chief to prove that the judge  have from time to time construe statute in a benign sense in order to soften  the rigour of the text whereupon they conclude that the first save videlicet  to stranger and their heir so that they pursue their title and claim c which  be as much as to say so that the stranger Plowden er p and their heir pursue c  ought to be so understand that the heir who be td pursue the right shall be of  f till age so that they may know their right and in what manner they be to  enter or sue for it and that this construction be not take by equity which be  a thing out of the letter but be declarative of the direct sense of the word  heir bind to the pursuit which declaration be a exposition of the sense of the  letter and no part of equity and that stowel the demandant be the heir but not  of full age be not bind to the five year attach in the father but be at large  but all of they as understand they argue that he be bind to time by the intent  of the Act videlicet as sander say that he shall have five year de to make new  and that he Plowden be bind thereto by the equity of the purview which bind  the person except to five year for the same reason hold in both the case point  admit that the demandant be bind by the body of the Act and not comprise in  the exception nor aid by the first save whether or no he shall be aid by the  second save as to the second save which be the four point Harper Bendloe Welsh  and sander say that admit that stowel the demandant be bind by the body of the  Act and be not aid by the exception nor by the first save yet the second save  shall aid he and he be within the benefit of it for this second save save to  all other person such right as shall first accrue remain descend or come to  they after the proclamation make by force of any gift in tail or by any other  cause or matter have or do before the fine levy so that c and if such person  at the time of such right descend c be within age then the right be reserve  until they come of full age so that they take their entry within five year  after their full age whereupon two thing be to be consider first if the right  here be such as bring the demandant within the word of this branch second if  the demandant be such a person as be intend by this branch and the right here  be such a right as be mention in the branch for the right come to the  demandant by descent videlicet from his grandfather to he and it first descend  to he after the fine for it descend to no other person after the proclamation  make before it descend to stowel the demandant and it descend by cause or  matter do before the fine levy for the seize be do before the fine levy  whereby as Welsh term it the possession and the right be sever for thereby  John zouch have take away the possession from stowel the grandfather which he  have by descent or purchase and have leave the right in he which right be in  be before the fine levy by force of matter or cause before the fine levy be  after the proclamation first descend to the now demandant so that every word  of the statute be satisfy and he be a infant ought to have five year after his  full age by the word of the branch and although the right immediate after the  proclamation be in stowel the grandfather who be of full age yet this be no  impediment to the demandant take benefit of the clause for he be the first to  who it descend and there be no descent of the right to the grandfather but the  descent come first to the demandant after the proclamation so that the right  be in the demandant in other manner than it be in his grandfather and  therefore he be within the word and the full age of his grandfather be no  cause to exclude he from the benefit which the word in this branch give he  have the right of the grandfather in other form but he shall have five year  after his full age and hereupon Bendloe put this case videlicet a vin Abr  title enfant b pl sheep pract Couns a two jointtenants be seize whereof one be  within age the seize levy a fine with proclamation four year pass after the  proclamation and afterward the jointtenant of full age die before the five  year pass the other be within age the infant survivor shall have five year  after his full age as well for the moiety which be in his joint companion who  be of full age as for the other moiety for the right of that moiety which be  in his companion of full age first accrue to he after the proclamation make by  force of cause or matter videlicet the jointtenancy mad e before so that he be  within the word and intent of the branch notwithstanding that the moiety be in  his companion before for it be in he now in another form and so here the right  be in the demandant in another form than it be in his grandfather that be to  say by descent and if it be in another form then it be intend by this Plowden  er p branch and Welsh in his last argument say b oh bendl west Symb pt foe a  sheep pract Couns b that if a man seize a feme sole and afterward take her to  wife and they have issue and the husband be seize the seize levy a fine with  proclamation the husband die four year after the proclamation and before the  five year be pass the issue be of full age and afterward the mother die and  the five year passes now the issue be bind as heir to his father for in this  respect he and his father have but five year together but yet as heir to his  mother he shall have five year to be account from the time of the death of his  father for notwithstanding it be one same land yet the heir have several right  one as heir to the father which be the latter right and the other as heir to  the mother which be the first right and in respect of these be have several  time and in his first argument he put this ease c vin Abr title fine f a pl  west Symb pt foe a sheep pract Couns c if the husband make a feoff of the land  of his wife upon condition and the condition be break and afterward the feoff  levy a fine with proclamation and the husband die in the four year after the  proclamation have issue by the wife and afterward the wife die and the five  year passes the heir be bar of his entry for the condition break as heir to  his father but as heir to his mother he shall have five year from the death of  his father for her right causan how above so he and the other on this part say  d bendl say contra post g per Weston et Catline west Symb pt foe b sheep pract  Couns d if I S be tenant pur auter vie the remainder to another for life the  remainder to the say I S for his own life or in fee and be seize and the seize  levy a fine with proclamation and the five year pass now I S be bind for his  present estate but if beneficiary tue vie and he in remainder die he shall  have other five year afterward for the other estate which he have for his own  life or in fee for it be another estate and it first remain to he after the  death of he in remainder by reason of matter or cause videlicet the estate  before make so that be the estate or he right one or diverse if it come in  another manner as it do here for it come to the demandant by descent which be  in another manner than it be in his ancestor and the party be he to who it  come first in such manner it be save by the exception if he be such a person  asis intend in the second save and as to this the word be save to all other  person such action c now in order to know who be another person and who not  the premise of the Act be to be consider and it be to be observe that the  purview as they who argue on the other side say be general videlicet to all  person and they also say that the exception of infant be but of those infant  who have right at the time of the fine levy and stowel the demandant be not  such a infant for then he have no right and his grandfather who be of full age  be within the purview and Plowden the first save aid he and his heir so that  they make pursuit within five year but the heir who be to pursue the right be  intend heir of full age and such only be comprehend herein as it have be say  and stowel the demandant be heir be out of it because he be within age so that  he be other than be contain in the exception and other than be contain in the  first save and then forasmuch as the right be descend to he first after the  fine engross and the proclamation make which right descend or come by cause of  matter have or do before the fine videlicet the seize and he be another person  than be comprehend in the exception or in the first save he must by the  express word be aid by this second save and although the heir within age can  proper be call another person when he be of full age yet here the matter be  consider he may be call another by the intent of the maker of the Act inasmuch  as he have the right of the father in another manner than the father have it  that be to say by descent for in the case put a ante b and c a by Welsh the  heir who be bar as to the right of the father may be call another person as to  the right of the mother with respect to the intent of the maker of the Act for  they name one same person as another person where he have another right or  another estate Plowden er p b vin Abr title fine f a pl west Symb pt foe b b  as if one have a estate for the life of a remainder to he for the life of b  remainder to he for the life of c and he be seize and the seize levy a fine  with proclamation now for the present right he have five year by the first  save and if after the five year a die he shall have other five year for the  next remainder by the second save which give they to other person who have  future right and if after the five year b die he shall have other five year  for the second remainder and brown assent thereto and cite this text of the  civil law videlicet when two jura in One mask to run together level ground be  ac si make real in to visit and so when there be three several right in one  same person he shall have the like benefit of they as three person shall have  if the right be distinct in they for the maker of the Act consider the several  right and in respect of the several right which be distinct in one same person  the party as to the second or three right may be call another person and as he  be one same person in himself so may he be in respect of the several right and  so here the other who argue on this part say that the heir of stowel the  grandfather who be within age and to who the right which the grandfather have  be descend by which descent the right be in another degree than it be in the  grand father may be call another person than the heir of stowel the  grandfather of full age and therefore he be comprehend in the second say and  hereupon they conclude that the purview and the exception be add together the  demandant be not comprise in the purview but be out of it by the exception and  that he have pursue the time prescribe in the purview of the Act for the  person except and though he shall be bind by the body of the Act and shall not  be comprise in the exception that yet he shall be aid by the first save and if  not that he shall be aid by the second save and if he can be aid by any of the  clause sander say that yet he shall be aid by the equity of the Act and he put  several case upon the equity of statute videlicet three upon the ancient  statute and three upon the new and so they say that upon the whole matter the  demandant shall have judgement and sander say in this case c theol dig lib cap    b a calvin case cart finch finch Crompt I c b b vin Abr title Ireland d pl c  that Ireland and Scotland be other realm but that Scotland be hold of the  crown of England and be within the fee and signiory of the king of England and  that he who be in either of these two realm shall be say to be out of the  realm and shall be within the exception and he also say that idiot lunatic and  those who have lethargy shall be comprehend in the word of unsound mind as  well as madman and on the other hand Puttrel and Carus sergeant and Southeote  Weston Whidon dyer and Catline justice argue that the demandant shall be bar  and they say that peace and concord be the end of all law and that the law be  ordain for the sake of peace and dyer say that for peace Christ descend from  heaven upon the earth and his law which be the new testament and the old law  which be the divine law be give only for peace here and elsewhere and Weston  cite saint Augustine who say ei concurrence agreement stat et to increase res  to make public et discord rvit et to break into small pieces and Catline say  that peace be describe in this manner pax mater alma riches to bear topple  chariot where pax to bear to say unity of purpose auriga who chariot palace to  say love two horse chariot to draw are concurrence agreement et usefulness  comites peace are the whole of the laws veritas thrifty a city in Liguria all  sound in mind and body parendar which description be make up of the nature  property and advantage of peace and of the incident thereof and therefore  peace which be attend with so many convenience ought to be preserve beyond all  other thing and hereupon dyer say that one of the article which the king at  his coronation swear to his subject to perform and keep be that he will  preserve the peace for a more beneficial thing he can grant to they and  therefore those law which bring the great peace be the most estimable and such  be this law touch fine which secure and quiet the inheritance of people and  fix they upon a certain foundation and Carus say that such law be the most  worthy for he say certainty be the mother of repose and Plowden er p  incertainty be the mother of contention and to avoid contention in inheritance  fine be devise by the founder of our law at the beginning for there be no part  of our law of great antiquity and hereupon Glanville be cite by Catline d see  pref to   foe c d who as he say be a judge of this realm a long time ago for  he die in the time of king Richard at the city of acre in the border of jury  attend upon king Richard in his voyage to that place and in his that book he  treat of fine where he say e Glanv lib cap foe b e to touch autem sometime  speech movement in curian domini king per friendly agreement et Of concurrence  agreement to set bounds send ex freedom king well he justice to the same  purpose he cite Bracton also who say Finis be border uniuscujusque rei hoc be  idem in quo unaquaque res to set bounds et therefore to say finalis Plowden  concurrence agreement because to place upon that which divides lawsuit and he  cite many fine of antiquity videlicet some a that fine be levy before the  Conquest see pref to   foe Inst west Symb pt foe a Curson Manby vin Abr title  fine a pl a before the Conquest touch the possession of the abbey of Crowland  and diverse since the Conquest prove the continuance of fine down from the  Conquest until the time of Edward in who reign statute be make concern fine  and he say that Glanville show the reason why fine bear their name for he say  b Glanv lib cap   Litt b a b to say ankle concurrence agreement finalis  eastern quod that which divides to place upon pain to such a degree ut neither  Pars to dispute ab eastern de the other to be able to go back which agree with  the definition give by the statute of fine make a long time afterward which  say c ante c because fine that which divides lawsuit to withhold to place upon  et to place upon et therefore fine to call maxim cum post war et great assizam  in his grammatical case ultimam locum Of to hold imperpetuum c wherefore  inasmuch as fine that which divides lawsuit to place upon and as Glanville say  that which divides to place upon pain they be of the great highness force and  puissance as the statute term they and therein they bring great advantage to  the people of this land in secure their inheritance and to this purpose as  well as to prove that the statute which oust nonclaim by which fine be  enfeeble create much disquietude and contention in inheritance throughout the  realm many thing be urge by he and the Lord dyer and by the other that argue  on this par d Leon per periam I Pollexf d for they say that the Act which oust  nonclaim be the cause of universal trouble throughout the realm to avoid which  and to restore fine to their former puissance the statute of h be make which  be to be weigh and observe in every part and upon due consideration have  thereof it seem to they that stowel the demandant shall not take benefit of  his nonage but that he shall be conclude by the purview of the Act and that he  be not let at large by any branch afterward and for the better apprehension of  the purview the preamble of the Act be to be consider which dyer term a e    Litt a Inst godb Curson Bac Abr vin Abr title statute e pl vide W Jones e key  to open the mind of the maker of the Act and the mischief which they intend to  redress and the preamble say the king consider that fine ought to be of the  great strength to avoid strife and debate and to be a final end and conclusion  and of such effect they be take before a statute make of nonclaim and now it  be use to the contrary to the universal trouble of the king subject will  therefore that it be enact c which preamble show that it be the opinion of the  maker of the Act that fine ought to be of the great force in order to avoid  contention and therefore the purview ought to be most large extend to fulfil  that intent and such be the office of expositor of act to follow the intent of  the maker express to they in plain term the preamble also show that of such  effect they be before the Act of nonclaim whereby the maker allow and approve  of the ancient fine which be peremptory to the right of other and further the  word declare that now it be use to the contrary to the universal trouble of  the king subject which word universal trouble show we that the member of this  parliament Plowden er p have a earnest desire to reform and remove this  general disquietude and this be a authority for we to pursue this desire in  the construction of the purview and to take it most strong against the cause  of that trouble and that be against the former right and against those who  have it and pursuant hereto be the purview which ordain the proclamation be  make the fine to be a final end and to conclude privy as well as stranger to  it this be the body of the Act which word be to be weigh and consider and they  be as strong and effectual as any word can be for if the fine shall be a final  end then all former right and title be go for it can be call final if any  other be at liberty to set up his former right against the conusee and to  dispute it with he and the other word that it shall conclude as well privy as  stranger to it tend to the same effect f   Litt a f for the word conclude be  derive as Catline say from the Latin word conclude which be compound of two  word videlicet con and limping which word limping signify to enclose or to  shut up or to end as diem to shut extremum he have close up shut up or end his  last day and con signify together so that the word conclude privy and stranger  in signification be as much as to say close up together shut up together or  extinguish the right of privy and stranger so that there be full provision in  the purview to take away and put a end to all former right and to commence new  and Catline compare the fine upon this Act to Janus who he say be Noah but the  Roman occasional call he Janus and use to paint he with two face one look  backward in respect that he have see the former world which be lose by the  flood and the other look forward in respect that he begin a new world commence  at the flood and proceed from thence forward for which reason they call he  Janus twofaced and also he carry a key in his hand signify by that key his  power to renew the new world by his generation so here this Act create as it  be a flood by which all former right before the fine shall be drown by  nonclaim for nonclaim be the flood and the fine beget a new generation which  be the new right for the fine make a new right and be the beginning of a new  world which proceed from the time of the fine downward and dyer and all the  other who argue on this part say g Leon comb post a g that the intention of  this Act be not so much to preserve former right as to extinguish they and  that the maker of the Act be enemy to the former right and friend to the new  because the ancient right stir up many suit and contention and forasmuch as  they intend to avoid universal trouble as the preamble speak and to make peace  which be to be prefer before all other thing and forasmuch as they have make  the provision general videlicet that the fine shall be a final end and shall  conclude as well privy as stranger h die pl ante a h if the Act have stop  there it will have bind as well infant femecoverts and the other name in the  exception as people of full age and who be void of such defect for infant do  not make the majority of the people I dr Stud lib cap foe post h I and that be  a reasonable law which provide for the great number although some particular  person suffer by it and hereupon Catline recite this say of Cato videlicet vix  any law become to be able who omnibus convenience sit send si mayor parti to  look forward useful be and so by the generality of the purview find upon so  reasonable a cause infant and all the other contain in the exception have be  bind if there have be no exception and so it be take by the Plowden maker of  the Act for other wise the exception will have be make in vain as Weston say  and it be say that all other infant but those contain in the exception be bind  by the generality of the purview a contra   read on fine   Litt a side see  sheep pract Couns a and hereupon Catline say that if a infant levy a fine  after the proclamation pass he shall not have a writ of error although he be  within age because he be not aid by the exception for no infant be except but  a infant not party to the fine and a infant party to the fine be within the  purview which bind privy which word privy may in sense comprehend a party also  and the purview Plowden er p be general bind infant as it have be say but note  this case be put to the contrary by Southeote and by Welsh in his second  argument for they hold that he be except out of the generality of the purview  by the intent of the maker of the Act and as to the exception all of they who  argue on this part hold that the infant and other contain therein be such as  have right at the time of the fine levy and no other b die pl roll r godb  Bridgm west Symb pt foe b b for a exception be always a exemption of that  which be contain before in general word and if it be not contain in the  generality it can be except in the specialty for Weston say if one make a  feoff of a manor except such a acre which be not parcel of the manor this be a  void exception so if one make a lease of all the land which descend to he on  the part of his father except the land which descend to he on the part of his  mother this be not a good exception because the thing except be not contain in  the demise and so the exception be not use in its roper nature so here the  purview be against those that have right and to except such infant as have no  right will be a idle exception a mistake of the proper nature of the word  which be a thing of too great indignity to be conceive of the member of that  parliament who be wise and learned man and therefore the generality of the  purview explain the thing except and as to what have be say on the other side  c ante c videlicet that the purview be make as well against those who have no  right as against those who have and so shall the exception also be sir this  can be well affirm that the Act be make against two sort of person videlicet  against those who have right and against those who have no right but only  against those who have right for every one who lie a claim to land and for the  recovery thereof sue a action or make a entry into it affirm by such act that  he have right and against he the fine with proclamation may be plead and it be  not examinable whether he have right or not but if he say that he have right  it be sufficient and then the conusee shall conclude he by nonclaim within the  time as if a fine be levy to one with proclamation and he enjoy the land five  year quiet without claim and afterward one bring against the conusee a writ of  entry upon a seize in the post for a seize do to he upon title paramount the  fine as he pretend where in fact he never be seize nor have title or right to  the land there the conusee shall plead the fine with proclamation against he  without answer to his title or examine his right for whether he have right or  not he be conclude by his latch of claim within the five year so that right or  no right be not the matter but claim of the tie or nonclaim within the five  year be the whole matter where this conclusion be plead and hereupon issue be  to be join which be try upon such issue one way or other make a end of the  matter for if it be find for the demandant that he make claim within the five  year he shall recover whether he have right or not and if it be find against  he he shall be bar whether he have right or not and where the conusee or his  assignee plead such conclusion in bar this be a nient dedire of the right of  the other but that such right be go by nonclaim and so the purview be make  only against those person who have a former right and the have of a former  right be every challenge of such former tie by action or other claim where  such conclusion be plead for the right be not deny by the party who rely upon  the conclusion and therefore it can be well say that the purview be against  those who have right and also against those who have no right inasmuch as in  every case where such conclusion I plead d a right be claim by the one party  and not deny by the other but the purview be only against those who claim a  former right and every one be confess by nient dedire to have a former right  who claim it and against who such conclusion be plead and the purview be not  against those who have nothing or claim nothing in the land at the time of the  fine levy or upon cause arise before the fine and hereupon Catline say d and  Inst west Symb pt foe a b a sheep pract Couns and where it be say to the  contrary in Inst that the lord be bar of his writ of disceit this be to be  intend accord to t raym another fine and not the same which be first levy vin  Abr title fine W pl in notorious facts you pl in we d that if a tenant in  ancient demesne levy a fine at the commonlaw Plowden er p and five year pass  after the proclamation the lord of ancient demesne shall have a writ of  disceit year afterward and shall annul the fine and the tenant shall be  restore to the land for the purview do not extend to he for he claim no title  or right to the land at the time of the fine levy but to his signiory and  service issue out of the land for which reason he be out of the purview so  that the purview extend only to those who claim title or right or have right  in possession reversion or remainder to the thing comprise in the fine at the  time of the fine levy or afterward upon cause arise before and the exception  of infant and the other person comprise in the exception be intend of such  infant and person as have right at the time of the fine levy and no other and  stowel the demandant who be a infant at the time of the fine levy be not such  a infant as be there intend because he have no right at the time of the fine  levy but his grandfather then have the right against who the purview hold  place and not against the demandant himself and so they all hold that he be  out of the benefit of the exception and that the word have any right or title  in the clause after touch the person except be to be intend have right or  title at the time of the fine levy as well as at the time of the claim by  action or entry make and therefore they all agree that stowel the demandant be  not within the benefit of the exception because he have no right at the time  of the fine levy and as to the first save it be to be observe that the save be  general but it be with condition which condition in reason and sense ought to  be take as general as the save be and Plowden the save be to all person and  their heir other than be party to the say fine such right claim or interest as  they have to the say tenement at the time of the fine engross so that they  pursue their title claim or interest by action or lawful entry within five  year next after the proclamation make which word they contain the person who  have right and his heir as be aforesaid a vin Abr title fine W foe a so that  we see the save be general to he and to his heir which imply every heir  inheritable whatsoever whether he be within age covert out of the realm or of  unsound mind or whether he be of full age and void of such impediment and the  so that add afterward be a condition videlicet so that they pursue c which be  as much as to say so that he and his heir pursue c and heir there be mean  general that be every heir whatsoever inheritable whether he be within age  covert out of the realm or of unsound mind or whether he be of full age and  void of such impediment for if it shall save the right as well to the heir  within age or who have the say defect as to the heir of full age who be void  of such defect so that the heir of full age or void of such defect pursue his  title within five year this sentence will go lame upon one foot and will not  be as large as the save be but it will leave the heir within age or who have  the say defect at large without bind he to any time of pursuit and if the  intention of the maker of the Act have be such that the heir within age or who  have the other defect or impediment shall not be bind to the pursuit within  age or during the time of his defect then they will have provide that the heir  of full age and who be void of such defect shall be bind to the pursuit after  that he have come of full age or be void of such defect or impediment as they  do with regard to those who have present right at the time of the fine levy or  a future right afterward but that be not their intention and the reason be  because they have no other design but that the heir within age or who have the  other defect shall be bind by the condition of the save as well as he have the  benefit of the save and whosoever consider that this Act be make for the  general tranquillity and quiet of inheritance throughout the realm which be  more to be favour than the nonage of a infant in a case which rare happen will  not think this be a hard or rigid construction b dr Stud lib cap foe ante I b  and although sometime a case happen for which there be no remedy yet that do  by no mean impeach the reasonableness or justice of the law see the great  number of people be provide for by it and Catline and Weston Plowden er p say  that if every infant shall have five year de to make new after his full age  the matter may possible be delay many hundred year for if stowel the demandant  shall have other five year after he come of full age he may perhaps die within  those five year after his full age his heir be within age who ought to have  other five year which heir also may die within the five year after his full  age his heir be within age and in this manner it may be continue for many  hundred year and then the right will come to be try when it be out of the  memory of any man live and yet in such a dark case a jury will be under a  necessity of give a verdict and such darkness and ignorance will be the mean  of introduce perjury and many other mischief which the maker of the Act intend  to prevent by remove the cause of they videlicet by limit a certain time for  the first right which they do not intend shall be exceed although some  particular person may suffer by it and hereupon Catline recite the mischief  which be in the word of the statute of limitation of h cap by the word whereof  c vin Abr title limitation a pl c if the incumbent of a advowson have live  year and have die and a stranger have present or tone have have a signiory by  knightsservice and have not be seize thereof for year by reason that the  tenant live so long or for other reason and the tenant have die his heir  within age and another have seize he and enter into land in the one case be  can not have a quare hinder or darrein presentment and in the other case he  can not have a writ of right of ware or ravishment of ware and yet in these  special case the mischief be great by reason of the person live so long  nevertheless this mischief be not remedy by the exposition of the word of the  Act nor by the equity of the Act until the statute of mary cap redress it and  the reason be because the Act of h be find upon the like reason with this Act  videlicet to limit all man to a certain time for the tranquillity and repose  of the public in which case d cro c d no time shall be gain by exposition or  equity beyond the express word of the Act and if infant have not be except in  the say Act of h which ordain that action shall be bring within a certain time  before the Act take effect they will have be bind by the generality of the  purview as well as other of full age so here the five year attach in stowel  the grandfather ought to be pursue as well by his heir whether he be of full  age or within age as they shall have be by himself if he have survive the five  year and Catline also allege the mischief which be in the word of this very  statute of h which ordain that the proclamation shall be make the same term  that the fine be engross and the three term thence next follow and if one of  the say three term have be adjourn the proclamation have be ineffectual in the  whole and it can not be supply the last term after by the exposition of the  word nor by the equity of the statute for remedy whereof the Act of mary cap  be make and so it appear that a time limit by a Act ought to be pursue and be  once attach in part it ought to be continue e finch e and hereupon dyer say  that if upon the exigent it be return that the party be quarto drive out and  that there be one county want and upon this another writ issue allocato county  this five county ought to be that which be next after the four for if it be  not but if the day of the five county be the day of the return of the exigent  or be pass before the date of the second writ or if upon other accident the  count at which he be outlaw be not the next after the four it have be hold by  we in the common bench to be error for a time commence ought to be continue  without intermission so the five year commence in stowel the grandfather of  full age can admit of any intermission but they shall be account continual  from the first day of they and he deny the law to be Plowden as it be before  affirm by brown videlicet contra ante d a that if a fine be levy before the  Act of nonclaim and one of full age have right at the time of the fine levy  and he have die within the year and the right have descend to his heir within  age he say that he shall be bind to that year commence in his father and that  his nonage shall not avail he in that case inasmuch as his ancestor be Plowden  er p of full age and he say that in many case at the commonlaw nonclaim shall  lose the right a p h a f n b a die pl   Litt b   b Kitch cowel Inst finch  finch a as nonclaim of a villain by a year and a day who have flee into  ancient demesne shall take away the seizure of the villain and that has arisen  by birth to have but if the lord make his claim every year he shall have a  that has arisen by birth to have b m Edward pl bro quo warranto Crompt I c b b  and nonclaim of liberty before justice in Eyre shall lose the liberty for it  be at the king grace to grant replevin of they and not matter of right and the  wood of another in the king forest be seize into the hand of the king for  nonclaim within a year and a day shall be forfeit to the king as appear by the  treatise call in ranks forest c ante b and the book there cite c and nonclaim  by the mulier upon the bastard who die seize shall take away the right d h h  foe pi   Litt b d and if a appeal of murder be not bring within a year and a  day it shall be lose for ever e contra show per dolben I e and a copyhold not  claim within a year and a day after the death of the ancestor shall be lose  for ever by the custom of many manor and such custom shall be good and he put  many other case where nonclaim shall be peremptory to the right and he say if  in these case nonclaim within a time limit shall by the commonlaw be  peremptory and lose the right and in they the party shall not be aid b that  infancy a strong where a Act of parliament limit a time for the public repose  of the realm and in order to avoid universal trouble to the subject of the  realm as the preamble say such time ought to be peremptory and ought not  either by exposition or equity to be favour and enlarge for a infant or any  other beyond the strict extent of the word for the public repose be more to be  regard than the private convenience of any particular person whether he be a  infant or of unsound mind or in other degree wherefore he and all the other  who argue on this part agree that the heir comprise in the first save and bind  to the pursuit of the right shall be take as general as the save be and shall  comprehend heir within age covert in prison of unsound mind or beyond the sea  as well as other heir void of these imperfection or impediment and that the  demandant shall not have benefit of his nonage by this first save but that by  his nonclaim within the five year attach in part in stowel the grandfather he  shall be bar if the second save do not aid he f that the right of the mulier  within age be bind   Litt a   a roll Abr I pl that it be not a S pl bro age  dissent entry congeable ass pl Fitzherbert bastardy bro dissent entry  congeable h Edward Fitzherbert verdict bro dissent f and the case of the die  seize of bastard eigne during the nonage of mulier puisne be touch by many of  the justice in the argument of this case and Carus and dyer hold that the  right of the mulier within age be bind by the descent because in this case the  law be a bind law that be to say it bind the right for ever and Southeote and  sander hold the contrary because the right of the mulier shall never be bind  but where there be a die seize and where the die seize come by default of  entry and by the latch of the mulier which latch be excuse by reason of the  infancy of the mulier as to the second save all of they who argue on the part  of the Lord zouch hold clear that the demandant be not aid thereby for diverse  cause one cause be for that this save be to other person which word other be  exclusive of those who be comprise in the exception and in the first save and  such be not the demandant here for stowel the grandfather and his heir be  comprise in the first save because stowel the grandfather have right at the  time of the fine engross which right be save to he and to his heir upon  condition videlicet so that they pursue their right within five year after the  proclamation make which be not do as be aforesaid then when the second save be  to other this be to be understand to other than to those who have present  right at the time of the fine engross and their heir and if the title of  stowel the demandant be no other but as heir to the grandfather who have not  Plowden er p the present right at the time of the fine engross then be he  exclude out of this second save by the word other for he be not another person  and although his person videlicet his body be distinct from the person of his  grandfather yet inasmuch as the first save be to his grandfather and to his  heir and he be heir to the grandfather by blood and heir to the right also he  be comprise in the first save and be exclude out of this second save and  Weston and Catline be of opinion against Welsh and diverse other justice as be  say before in this case videlicet g ante d sheep pract Couns g if tenant pur  auter vie remainder of life over to another remainder in fee to the right heir  of tenant pur auter vie be seize and the seize levy a fine with proclamation  and five year pass and afterward beneficiary and vie die and afterward he ill  remainder for life die Weston and Catline hold that he who be tenant pur auter  vie shall not have other five year after the death of tenant for life in  remainder to pursue his right for the feesimple because he be not another  person but one same person and if he have enter or recover the land during his  first estate his remainder have be restore thereby and inasmuch as he be there  bind by the word of the Act for his second estate be cause he be not another  person it seem to they not consonant to the intent of the maker of the Act to  enlarge the time to he for his other estate but to abbreviate it forasmuch as  their intent be more favourable to the new estate than to the former right and  so here stowel the demandant be comprise in the first save be not comprise in  the second save but the word other exclude he from the benefit of this second  save also the word first join to the subsequent word will exclude he from the  benefit of this save which word first seem to they all to be put in the  statute to great purpose h t Jones h and dyer say that the statute of r cap  touch fine have all the word of the purview and the body of this Act of h  except the word first which be add as a thing think to be very necessary to  this Act of e more than be in the say Act of r and this word ought to be add  to each of the four word accrue remain descend or come and the four Plowden  word be by the letter limit after the fine engross and proclamation make by  force of any gift in tail or by any other cause or matter have or do before  the fine levy so that he who will take benefit of his save ought to prove four  thing videlicet that he be another person and that the right first come to he  and that it come after the fine engross and proclamation make and that his  right or title be by cause or matter before the fine levy so that the  foundation of his title ought to be before the fine and ought first to come  after the proclamation as for example upon the word accrue Weston say a west  Symb pt foe a sheep pract Couns a if the father die seize his old son be in  religion and the young be seize and a fine be levy with proclamation and five  j ear pass and afterward the old be deraigned he shall be aid by this second  save causan how above b Bac Abr west Symb pt foe b sheep pract Couns b so dyer  say if the mortgagee be seize and a fine be levy by the seize and five year  pass after the proclamation and afterward the mortgagor pay or tender the  money he shall by this second save have five year after his payment or tender  for his title first accrue to he after the proclamation by the payment or  tender upon cause or matter before the proclamation videlicet by the condition  make before the fine c S p accord die pl h h roll die pl more pl   Litt a   a    b a Gouldsb pl roll r roll r sheep pract Couns Bac Abr vin Abr title fine W  foe c and if the husband levy a fine with proclamation and five year pass  after the proclamation and afterward the husband die the wife by this second  save shall have five year after the death of the husband to purchase her writ  of dower for her title come after the proclamation make videlicet by the death  of her husband upon cause before the fine videlicet the intermarriage with the  husband and his seize for three thing be the cause of the wife dower videlicet  the intermarriage the seize of the husband in deed or in law Plowden er p and  his death two of which videlicet the intermarriage and the seize be before the  fine levy and the three videlicet the death be after the proclamation notam  bene by the reporter west Symb pt foe a b but this opinion of the reporter be  contradict in the book cite above at c but note reader that in my opinion in  this last case ale wife shall not be bind to five year after the death of the  husband but she be at large and not touch by the purview of the Act for the  purview be against those who have right at the time of the fine levy or have  future right afterward upon cause arise before to which future right wrong be  do before the fine or by the fine so that the statute always intend that a  wrong be do to the present estate or to the future estate by the fine levy but  here in ale case of dower the title be whole accrue after the fine Viz by the  death of the husband for until his death no title be consummate nor wrong do  by the conusee in detain the land front the wife and the other two point be of  no moment without the three videlicet the death of the husband nor be they  such cause or matter as the statute intend so that all the three point be but  one cause or matter and not several and therefore the fine do not reach to  such title as be accrue after the fine and as the law say upon cause whole  after the fine and this be consistent enough with the fine d west Symb pt foe  b sheep pract Couns d as if the tenant cess one year part of which be before  the fine and the proclamation pass and another year which end after the  proclamation these two year be but one cause or matter which give the cessavit  and not two matter and therefore the lord shall have his cessavit year after  the proclamation and shall not be bind to five year for the purview be not  against the lord in such case because he have no right to the land at the time  of the fine nor be his title to the land in be at the lime of the fine levy  although the cesser commence before the fine levy but his title shall be say  to accrue whole after the fine videlicet at the end of the two year and so it  stand well with the fine for which cause the lord be at large and not bind to  five year to bring his cessavit so it seem to I to be in the case of dower and  of the mortgage also for although the make of the condition be the cause of  the reentry yet it be not any part of the matter or cause intend by the  statute but stand well with the fine and the payment make the title which be  after the fine so that at the lime of the fine there be no wrong do to the  mortgagor nor to the estate which he claim and therefore he shall be at large  and not bind to five year and dyer say further as to the word remain e bendl  sheep pract Couns e if land be give to the father and to the heir female of  his body beget the remainder to his son in fee and the father levy a fine with  proclamation and afterward die without heir female of his body there the son  have five year to make his claim after the death of the father by this branch  for he be another person to who the land first remain after the fine engross  and proclamation make by force of matter before videlicet the estate by which  the remainder be limit upon the estate tail make f post a west Symb pt foe b  sheep pract Couns f so it be say if tenant for life the remainder in fee be  seize and the seize levy a fine with proclamation and five year pass and  afterward the tenant for life die he in the remainder shall have other five  year to be account from the death of the tenant for life causan how above but  can line deny the law to be as it be put by Welsh in a case upon this matter  for Welsh have say if tenant for life with remainder in fee make a feoff and  the feoff levy a fine with proclamation and five year pass now he in the  remainder be bind touch his entry for the forfeiture during the life of the  tenant for life for his present fight of entry be save by the first save so  that he have pursue his claim within five year which he have not do but he say  g S p resolve lawn v Toker   b a cro Elizabeth cro c keb arguendo west Symb pt  foe b to waver in opinion sheep pract Couns g if the tenant for life die now  he in the remainder shall have other five year for his formedon in remainder  for it be a new title and right and he can not have his formedon in remainder  before and it be at his election whether he will take advantage of the  forfeiture or not and because a new right be come to he by the death of the  tenant for life he shall have other five year by this second save which  Catline utter deny and say that it be no new right which first accrue after  the death of the Plowden er p tenant for life for it be one same feesimple to  which he have right as well before the death of the tenant for life as after  his death and inasmuch as it be his time to have execute it in his life and he  have not do it but have suffer the five year to pass he be conclude by the Act  and not save by the second save for his right do not accrue or remain first  after the death of the tenant for Plowden life inasmuch as he may have enter  before and so the word first exclude he from the benefit of the second save  and as the law be in the case before a ante f a where tenant for life with  remainder over be seize and a fine levy ut before so it be say shall it be of  the reversion b show west Symb pt foe b sheep pract Couns b if the reversion  have continue in the lessor he shall have five year after the death of the  tenant for life c   b by the reporter show but see Whaley v Tancred t ray  adjudge contrary and that there be no difference as to this point between a  lessee for life and a lessee for year S c lev keb c but Catline say if the  reversion or remainder depend upon a estate for year and not upon a estate of  freehold then he in the reversion or remainder shall not have aid of this  second save d   a   b Inst Mod show Bac Abr sheep pract Couns d and he say if  tenant for year or tenant by statutemerchant or elegit be oust and afterward a  fine be levy with proclamation as well the termor or tenant by statute  merchant or elegit as he in the reversion also ought to make their claim  within the first five year for in such case e   Litt b e he in the reversion  may enter upon the seize as well as the particular termor and therefore they  be all comprise in the first save and he in the reversion shall not have five  year after the term end as he shall have where the particular estate be a  freehold in which case he in the reversion can enter during the estate of  freehold and from this case of a termor his intent appear that a termor for  year shall be bind by this statute as well as one that have a freehold because  the save save all interest f   a   a   Litt b cro I f which word interest may  comprehend a term and show that the generality of the purview extend to it as  it seem to he and as to the word descend dyer say g p h a roll r   a b Pollexf  west Symb pt foe b sheep pract Couns g if tenant in tail discontinue and the  discontinuee levy a fine with proclamation and five year pass and tenant in  tail die the issue shall have other five year for he be the first to who the  land descend after the proclamation by force of the gift in tail make before  the fine levy h west Symb pt foe b sheep pract Couns h but if tenant in tail  be seize and afterward the seize levy a fine with proclamation and five year  pass without claim and afterward the tenant in tail die in this case he and  Catline also say that the issue in tail be bind for ever for there the tenant  in tail have the present right at the time of the fine levy and the first save  comprise he and his heir in tail and inasmuch as they do not pursue their  right within the five year accord to the condition of the first save the tail  be bind for ever but Southcote and Weston be of a contrary opinion for they  say that every issue in tail shall have five year for a new right be come to  every one of they per form gift which right as they take it the maker of the  Act intend to preserve I t Jones I and to this purpose the word by force of  any gift in tail be put in the second save but this opinion of they be utter  disallow by the say chief justice who say that the word first which ought to  be add to the word descend and then it will be shall first descend will not  suffer every descent to have five year king sheep pract Couns king and Catline  say that a right or title may be say to be descend where he who have a right  to a reversion or remainder in tail defendant upon a estate for life die and  this descend to his issue and afterward the tenant for life die he shall have  five year by this second save and thus the word first Plowden er p descend  shall be full satisfy l west Symb pt foe a sheep pract Couns l and Weston and  dyer say if a man have issue a son and a daughter and the son purchase land  and die and the daughter enter and be seize and the seize levy a fine with  proclamation and five year pass without claim if after this the father have  another son as he may have ten year afterward or more who be heir to the  brother he shall have other five year by this second save for he be the person  to who the right first descend after the fine engross and proclamation make m  sheep pract Couns m so dyer say if a man of unsound mind make a feoff in fee  and the feoff levy a fine with proclamation and he of unsound mind die now his  heir shall have five year from the time of his death for he be the person to  who the right first descend after the fine engross and proclamation make and  as to the word come dyer say n sheep pract Couns n if tenant in tail levy a  fine with proclamation and five year pass and afterward he die without issue  the donor be the person to who the right first come after the fine engross and  proclamation make upon cause have before the fine and therefore he be aid by  this second save and may have his formedon in reverter within five year after  the death of the tenant in tail and in all these case it be say there be a new  right or title accrue remain descend or come after the proclamation which be  not in any other before upon cause arise before the fine but in our case  although stowel the demandant be the person to who the right first descend yet  this be not upon any matter or cause have or do before the fine as the maker  of the Act intend for the seize which be before the fine be not the matter or  cause which make stowel to have the right for if there have be no seize he  will have have the right and the possession for he have it by descent or  purchase before but they intend some special matterwhich shall e the efficient  cause of have the right and such a right too as never be in any other before  it be in he and there be none such in this case for the right be first in the  grandfather and the right descend which be mean by this branch be a right  descend which be not in any other in such manner at the time of the fine levy  for this right here be save in stowel the grandfather and in his heir by the  first save and if it shall also be save in the heir by the second save because  it first descend to he then the one save will be superfluous and in vain and  this be not the intention of the maker of the Act for they never intend to aid  those by the second save who be comprise and aid by the first save nor e  contra to aid those by the first save who be aid by the second but their  intention be to comprehend in one save those who be out of the other save  wherefore all of they who argue on this part agree that the demandant be not  aid by the second save for he be not another person nor be the right which  Plowden be here descend to he such a right as the maker of the Act intend nor  be the cause or matter before the fine such as they intend and as to this  point of equity all of they also who argue on this part agree that stowel the  demandant shall not be aid at all by equity inasmuch as the universality of  mankind be more the object of the purview than individual that be to say it  respect the peace of all man in general more than the advantage of infant or  other private person and also inasmuch as this Act be a positive law for the  time and therefore when it have particular limit diverse time to person in  diverse degree to make a alteration in that time will be more contrariant than  agreeable to the mind and intention of the maker of the Act a Arist ethic lib  cap Brownl finch finch Bac Abr post a and Catline say that Aristotle define  equity thus justice be amendment justae law how part deficit quod generatin  latan be but he say this law here be special and limit a certainty of time in  every point and it be defective in no part as to time for which reason the  time limit shall not be alter or enlarge by equity Plowden er p and in this  case they who argue on the part of Lord zouch agree b vin Abr title fine f a  pl west Symb pt foe a sheep pract Couns Leon per Anderson CJ b that if one  have three or four of the defect and impediment as if a woman who have present  right or when the future right fall be covert and within age and not of whole  mind and in prison and one or two or three of these defect or impediment be  remove as if the husband die and she be of full age and let out of prison the  five year appoint to her by the statute shall not commence until the last  defect or impediment be remove and when she be void of all the impediment or  defect then the five year shall commence c vin Abr title fine f a pl west Symb  pt foe a b sheep pract Couns c and if the person who defect or impediment be  once remove within a month after fall into any of the defect or impediment  again as if he be imprison or become of unsound mind and continue so all the  five year or at the end of the first month of the five year die hisheir within  age the five year before commence shall proceed and nonclaim within the same  five year shall bind the party and his heir as well as if he have be void of  all the defect or impediment during the whole five year and in this case it be  affirm by many of the justice and deny by none of they that I hear d vin Abr  title fine f a pl d that although the person comprise in the exception be not  under such defect or impediment at the time of the fine levy but become so  against their will after the fine levy and before the last proclamation and be  in such degree at the time of the last proclamation they shall not be bind to  five year next after the last proclamation but they shall have five year next  after their impediment or imperfection remove and Bendloe say in this case  that the save in the Act extend as well to successor although they be not name  as to heir and diverse case be put touch the successor of bishop dean and  parson and in the mesne vacation touch man of religion all which I have omit  out of this report because as apprehend the purview do not extend e   a Crompt  I b west Symb pt foe b sheep pract Couns post c e to bind such nor shall their  successor be intend such privy as be mean by the statute nor shall they be  bind b any fine levy by their predecessor or by the negligence or latch of  their predecessor for none can imagine that the maker of the Act intend by the  latch or act of the bishop to bind ale succession without the assent of the  chapter or of the parson without the assent of patron and ordinary for which  reason it seem the omission of successor out of the Act be do of purpose and  not through negligence or forgetfulness and if the law shall be take for  certain that upon a fine levy by the predecessor of a bishop dean or  prebendary or parson and proclamation make or that upon a seize do to a bishop  dean or prebendary and such other their successor shall be bind by a feoff of  the termors or otherwise and by a fine afterward levy and by nonclaim of the  bishop dean or such other for five year this will soon grow into great  practice and thereby holy church will lose more possession than it can gain in  these day after these argument make judgement be pray in the common bench for  the Lord zouch in the say term of saint Hillary in the that year of the reign  of queen Elizabeth and Harper then one of the judge of the same bench retain  his former opinion videlicet that the law be with stowel the demandant and of  the same opinion with he be sander only and no other for Welsh different  opinion assent that judgement shall be give against stowel and he say to I  afterward that upon better consideration it seem to he that the Act which have  limit a time for the right have make the right of stowel the demandant subject  to a condition videlicet that he shall pursue his claim within the five year  attach first in his grandfather from which his nonage shall not discharge he  any more than in this case videlicet f ass pl Fitzherbert condition bro  coverture roll r lev Mod f if a man make a feoff in fee upon condition to be  perform on Plowden er p the part of the feoff and his heir there if the feoff  die his heir within age he be bind to perform the condition during his nonage  as well as if he be of full age so here the time limit to the right of the  demandant make his right conditional and his nonage shall not discharge he  from it and this be the reason why he assent to the judgement as he tell I  wherefore he and all the other judge videlicet Carus Southeote Weston Whidon  dyer and Catline be of opinion that stowel the demandant shall be bind to the  five year attach in his grandfather and consequent that judgement shall be  give against he and of this opinion I hear that Corbet justice be who die  before he have deliver his last argument as appear by his argument write with  his own hand which be find after his death in his study as I be inform  wherefore the same term of saint Hillary judgement be give that stowel the  demandant shall be bar which judgement be as follow Plowden the rest of the  record judgement at which day here come as well the aforesaid John stowel now  demandant as the aforesaid George by their atorneys aforesaid whereupon the  premise be see and by the justice here full understand it seem to the justice  here that the aforesaid plea of the aforesaid John stowel now demandant above  by reply plead be insufficient in law to maintain the aforesaid John stowel  now demandant to have his action aforesaid against the aforesaid George as the  aforesaid George above have allege therefore it be consider that the aforesaid  John stowel now demandant take nothing by his writ aforesaid but be in mercy  for his false claim and that the aforesaid George go thereof without day c and  the Lord dyer in his last argument make in this case speak to the manner of  plead the conclusion make by the statute that be to say whether it be  necessary for the tenant who plead the fine in bar to aver that the say John  zouch knight be of full age of sound mind out of prison and within the realm  or not for he say that in a m r Fitzherbert continual claim Crompt I c b b a r  the tenant in assize plead in bar a fine levy before the statute of nonclaim  and say that the plaintiff be a year and a day after the fine levy out of  prison of full age and within the four sea and do not put in his claim c and  the plaintiff say t t he be at that time in Scotland the whole year and day of  which he speak without that that he be in England and because Scotland be  another land and another realm by itself the issue be hold sufficient enough  for this purpose b ante c vide die pl b and he say hereby it appear that  Scotland be another realm c S p cite and affirm Leon per Wray CJ palm Mod Entr  b pl c but he say it seem to he in the case here not to be necessary for the  tenant who plead the fine in bar to aver that the party be of full age or out  of prison or within the realm and of sound mind but this shall be she n on the  other side if there be any such imperfection or impediment because the body of  the Act be general videlicet that the fine shall be a final end and shall  conclude as well privy as stranger to it and as general as the purview be so  general the party who be to take advantage by the one shall plead it and if  the other party or his ancestor be one of the person except he ought to plead  the exception because it be for his advantage and he resemble this to the  plead of a devise of land by force of the d stat h cap d Act for the devisee  shall plead the devise general videlicet that such a one be seize of the land  in fee and hold it in e if the tenure be not show to be by socage quaere if  the court shall intend it to be so die pl e socage and devise it to he by his  last will in write for the provision of the Act be general videlicet that  every person shall have full authority to devise c and yet there be a branch  in the Act afterward that will make by femescovert or person within age idiot  or not of whole mind shall not be take to be effectual but inasmuch as this be  not in the body of the purview but be in a branch afterward Plowden er p the  devisee needs not to aver that the devisor be of full age and void of the  other imperfection but the other party who be to take advantage of it shall  plead it f m h pl bro feoffm all use plead m h pl Fitzherbert verdict bro  feoffm all use p h b bro ibidem plead vin Abr title use W a in notorious facts  but Leon this point be deny to be law by Wray CJ and note the opinion of Wray  agree with that of Keble m h pl p h b f but be say if one will plead a feoff  or grant of beneficiary and use there he ought to plead that he be of full age  of whole mind and at large and not in duress as it be hold in h and he say  that the question be move before in h whether or no the party ought to show it  but it be not there adjudge but in h the point be resolve by the justice and  the reason be because the purview of the Act of r cap be that all feoff grant  c make by any person be of full age of whole mind and at large and not in  duress to any person shall be good and effectual so that the purview do not  warrant any feoff or grant but of such person as be void of such defect and  therefore be that will take benefit by such conveyance ought to show that the  person who make they be void of such defect or else he be not authorize to  make they g t raym per Twisden I ld raym arguendo g but otherwise it be where  the purview be general and a restraint to some come afterward byway of  exception as it be in this statute of fine or by another branch as it be in  the statute of devise of land and so by he there be a manifest diversity here  follow the verse mention before foe Elizabeth nonun royal power dumb transigi  annum tribe et the Angli regius scepter tenet Anthonium to seize and carry off  maii mala star Brownum law who alive glory great to be hidden of the way place  who norat to unlock oracle law finespun conducting et nestoris eloquence in oh  pollen animoque eloquent et over vix ulli to be able uberiora dari be flix too  si tam aged to be how to be animi dona to be struck senseless Himself drag  away by force utterance haec Essexia to strike nursling law et snatch away  attentive turban emit planxerunt that planga simul England totan truly mind  sad perdita gemma compose