Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

CHAP. 5.

Of Fictions in Law.

A fained construction, which we ca•••• a fiction in law, is when in a simi∣litudinarie sort, the law construeth a thing otherwise than it is i•• truth. And is of the person, thing▪ Action, and the circumstances there of ti•••• and place.

Of the Person.

92. Things don by another, are as if they were done by ones selfe.

A promise to ones wife in consideration of a thing to be performed by the husband: if the husband vpon his comming home, agree and performe the consideration; hee may plead this promise to be made to him∣selfe.

If my seruant sel my goods, and I agree, I shall haue an Action of Debt, supposing he bought of me.

A lease for yeares is made, and a letter o•• Attornie to deliuer possession to the lessee: if the Attorny deliuer possession to the At∣tornie of the Lessee: it is a good possession and pursuing to his authoritie.

Of the thing wee haue these two rules.

93. A thing that commeth in lieu of ano∣ther, to be as if it were the same.

One shall recouer in value against the heire (vpon the ancestors warrantie) lands which the heire took in exchange for lands descended.

A mannor is giuen by fine, a Scire facias lieth of a Tenancie that afterwards eschea∣ted.

If a mannor discend to an heire within age, and after a tenancie escheateth, he shal haue his age of it in a Precipe of the manor; it shall bee assets by discent, and hee may vouch of this Tenancie by reason of a war∣rantie made of the mannor; for the tenan∣cie commeth in lieu of the seruices.

94. A thing to be all one with that where∣vnto it doth amount.

The maxime of a bastard eigne, is that the mulier puisne must make an entrie vpon him, or else he gaineth the right: yet a con∣tinuall claime made by the mulier puisne de∣stroyeth his right: for it amounteth to an ••ntrie.

A Lease for a thousand dayes, is a Lease for yeares.

A lease for yeares and a release amoun∣teth to a feoffement.

If a man licence one to occupie his land

for a yeare. This is a lease for a yeare.

And therefore

95. A thing that should not be done, to bee as if it were not done.

One grants a rent charge, without saying pro se & heredibus, and dieth. The grantee brings a writ of Annuitie against the heire, and hath iudgment to recouer: yet he may distrein afterwards: for the heire was neuer chargeable. So that vpon the matter, it makes no election.

A man makes a lease for yeres of a house, with certaine implements, reseruing a rent, the Executors after the Testators death, re∣ceiue the Rent, yet it is no assets in their hands: for the whole rent belongeth to the heire.

96. So of a thing done in a time that it should not.

A man seised in fee, lets for ten yeres, & after selleth the land, and taketh it back to him and his wife, & then the husband and wife let it for twenty yeres, reseruing a rent: the husband dieth, the wife accepts this rent during the first ten yeares. By this the second lease is not affirmed, for the accep∣tance of a rent before the lease beginneth, and so before any rent be due, is no accep∣tance at all.

A matter pleaded or disclosed out of time and course, is as if it were not pleaded at

all. As if one bring an action of debt vpon an obligation, & count that the defendant was of full age at the time, the defendant shall not trauers this; but onely say he was within age, and the trauerse must come of the plaintifes part.

To the circumstance of time, these two rules pertaine.

Prioritie of time is imagined in things.

97. Done together.

One deuiseth a terme for yeres to his son, and that the wife shall haue it during the sonnes minoritie. This is first a deuise to his wife, and after to the sonne when he com∣meth of full age.

One grants his reuersion of lands, & by the same deed granteth a rent out of these lands to another, and deliuereth the deede to both at one selfe same time. Yet it shall inure first as a grant of the rent to the onc, and then as a grant of the reuersion to the other.

98. Happening in an instant.

A mesualtie discends to the Tenant of the land, though the mesualtie be at the same instant extinct, yet the tenant shall pay re∣liefe if he be of full age, or be in ward if he be within age (viz.) where it is holden by knights seruice.

Land is giuen to A. for the life of B. the

remainder to the right heires of B. A. di∣eth, the remainder takes effect before any occupant.

A man exchangeth land for a rent charge out of the same land. This is good enough though they be in an instant (whereby the rent should be drowned in the land) for the law accounteth the exchange of the land to be first perfected.

99. Things relating to a time long before, be as if they were done immediatly from that time.

When the wife is indowed by the heire of her husbands lands, she shall be saide to be in immediately from the husband. And therefore if the husband were a disseisor, & the heire in by discent, yet the disseisee may enter vpon the wife.

Goods taken out of the possession of an executor who refuseth, and administration is committed to I. S. I. S. may haue an acti∣on of Trespasse, supposing they were taken out of his possession: for he shall be said an Administrator from the verie time of the death of the intestate.

These rules of common reason do many times crosse & incounter one another, which is the greatest difficulty that we find in the arguing of our cases. But to helpe this, the generall ground is according to the former rule (〈…〉〈…〉) that

100. Those preuaile that carrie the more excellent and perfect reason with them.

Tenant for life makes a lease for life with∣out naming whose life, this shall be inten∣ded for his owne life (Rule 74.) for else it were a wrong But if tenant in taile make such a lease for life, this is a discontinuance, and for life of the grantee (Rule 86.) for it for it is strongest against the grantor, and most beneficiall for the grantee.

Things executed where the husband is seised in the right of his wife, shall not bee auoided by diuorce: as wast committed, receit of rent, wards, or presentments that haue fallen gifts made of the wiues goods, &c. Rule 39. But otherwise it is in matters of inheritance, as if the husband discontue and charge the wiues lands, release or ma∣numise villeines &c. Rule 30.

A feoffement is made with warrantie, the feoffee dieth hauing issue two daugh∣ters, who make partition of the land. This warrantie shal be diuided notwithstanding the partition which is their owne act, and therefore not so much fauoured Rule 46. For the land commeth to them originally by act in law, that is by discent, Rule 5.

If the Chancellor die before his seruants priuiledge discussed in banke, yet it shal be allowed, notwithstanding the cause of his priuiledge now be gon. (contrarie to Rule 3.) But the reason is, for that once he had cause: and the act of a third person (that is to say the Court) shall not preiudice him

where no follie was in himselfe. Rule 63.

The husband possessed of a terme in the right of his wife, maketh a lease of parcell, rendering a Rent, the wife shall haue the residue of the terme, but not the rent, Rule 9. notwithstanding it come in lieu of the land, Rule 93. and be as it were an accessarie vnto it, Rule 25.

Things may be done in the night time, notwithstanding, rule 49. where there is a kind of necessitie of doing them, then, Rule 44. as arbitrement made and deliuered in writing, the last day after the Sunne set, is good enough: for iudgements and arbitre∣ments require long aduice.

So may goods be distreyned in the night time for damage feasant.

If one of the Chapter infeoffe Deane & Chapter, by that he himselfe shall take by his owne liuerie, Rule 18. notwithstanding Rule 20.

A man may doe an act to himselfe, not∣withstanding Rule 20. where the law can∣not doe otherwise, Rule 18. as a fem tenant in socage may indow her selfe, an executor pay himselfe, &c. Counts and declarations must be certain, Rule 66. yet things which containe a necessarie implication are good enough, Rule 94. As in an eiectione firme, & count of a lease made by tenant for life, it sufficeth to say, that the lessor is yet seised, without alledging his life expresly. In an in∣formation vpon the Statute of vsurie, and count that the defendant tooke per viam, &

medium corrupte mutationis, where it should bee accomodationis, yet it is good enough.

Corporall seruice as suite of Court &c. cannot be done by another, Rule 14. not∣withstanding Rule 92.

Matters of trust or authoritie, &c. can∣not be granted ouer: because being strictly taken, they are esteemed to belong to the person, and therfore guided by Rule 15. Yet an office of skill and diligence to one and his heires, may be granted ouer. So vpon a letter of Attorny to deliuer seisin to A. he may deliuer it to the Attornie of A. for that vpon the matter is a possession deliuered to himselfe, Rule 21.

Tenant in taile makes a feoffement with warrantie, and leaueth to discend a reuer∣sion in fee simple expectant vpon an estate taile, which I. S. hath; this is no assets, for it may be tolled by a common recouerie (& therfore the law esteemeth it as if it were so) But it seemeth otherwise of a reuersion de∣pending vpon an estate taile of land which the issue himselfe hath, for it were the follie of the issue in taile to cut it off, Rule 70.

Notes

• 27. H. 8 24.
• 25. El. Earle of Leic. c.
• 18. H. 3. r••c. va. 26.
• 48. E. 3. 11.
• 6. H. 4 1.
• 14. H. 4. 9.
• 14. H. 8. 13.
• Brook.
• 5. H. 7. 1.
• 18 El. Dy, 362.
• 20. El. Dy. 362.
• 1. E 6. Br••••c. 18.
• 21. El. 563.
• 21. El. 540.
• 11. H. 7. 12.
• 7. H 4 6.
• 9. E. 4 21.
• Lit 92.
• 36. H. 6. 7.
• Lit. 110. b.
• Lit. 140. b.
• 32. H. 8. Br. der. 18.
• 28. E. 3. 20 b. Br. gar. 27.
• 35. H. 6. 3.
• 9. El. Dy. 264. b.
• 11. H. 7. 5.
• Pank. 41.
• 13. H. ••. 15.
• 14. El Dy. 347.
• 7. H. 4. 9.
• 12. El. 379. b.
• 25. El. Earle of Leic. case.