Law, or a Discourse therof in four books. Written in French by Sir Hen. Finch Kt. His Majesties Serjeant at Law. And done into English by the same author

CHAP. V. Of Fictions in Law.

A Feigned construction, which we call a a fiction in law, is when in a similitudinary sort the law construeth a thing otherwise than it is in truth. And is of the person, thing, action, and the circumstances thereof, time and place.

Of the Person.

92. Things done by another are as if they were done by ones self.

A promise to ones wife in considerati∣on of a thing to be performed by the hus∣band, if the husband upon his coming home agree, and perform the considera∣tion; he may plead this promise to be made to himself.

If my servant sell my goods, and I agree, I shall have an Action of Debt, supposing he bought of me.

A lease for years is made, and a letter of Attorney to deliver possession to the lessee: if the Attorney deliver possession to the Attorney of the Lessee: it is a good possession, and pursuing to his authority.

Of the thing we have these two rules.

93. A thing that cometh in lieu of another to be as if it were the same.

One shall recover in value against the heir (upon the ancestors warranty) lands which the heir took in exchange for lands descended.

A Mannor is given by fine, a Scire facias lieth of a Tenancy that afterwards es∣cheated.

If a Mannor descend to an heir within age, and after a tenancy escheateth, he shall have his age of it in a Praecipe of the Mannor; it shall be assets by descent, & he may vouch of this tenancy by reason of a warranty made of the Mannor; for the te∣nancy cometh in lieu of the services.

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

The maxim of a Bastard eigne is, that the mulier puisne must make an entry upon him, or else he gaineth the right: yet a continual claim made by the mulier puisn•• destroyeth his right: for it amounteth to an entry.

A Lease for a thousand days, is a lease for years.

A lease for years and a release amount∣eth to a feoffment.

If a man license one to occupy his land

for a year. This is a lease for a year.

And therefore

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

One grants a rent-charge, without saying pro se & hoeredibus, and dieth. The grantee brings a Writ of annuity against the heir, and hath judgment to recover: yet he may distrain afterwards: for the heir was never chargeable. So that upon the matter, it makes no election.

A man makes a lease for years of a house with certain implements, reserving a rent, the Executors after the Testators death re∣ceive the rent, yet it is no assets in their hands: for the whole rent belongeth to the heir.

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

A man seised in fee, lets for ten years, & after selleth the land, and taketh it back to him and his wife, & then the husband and wife lett it for twenty years, reserving a rent: the husband dieth, the wife accepts this rent during the first ten years. By this the second lease is not affirmed, for the acceptance of a rent before the lease be∣ginneth, and so before any rent be due, is no acceptance 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 upon an obligation, and count that the defen∣dant was of full age at the time, the defen∣dant shall not traverse this; but only say he was within age, and the traverse must come of the plaintiffs part.

To the circumstance of time these two rules pertain.

Priority of time is imagined in things,

97. Done together.

One deviseth a term for years to his son, and that the wife shall have it during the sons minority. This is first a devise to his wife, and after to the son when he cometh of full age.

One grants his reversion of lands, and by the same deed granteth a rent out of these lands to another, and delivereth the deed to both at one self same time. Yet it shall inure first as a grant of the rent to the one, and then as a grant of the rever∣sion to the other.

98. Happening in an instant.

A mesualty descends to the Tenant of the land, though the mesualty be at the same instant extinct, yet the tenant shall pay relief if he be of full age, or be in ward, if he be within age (viz.) where it is holden by Knights service.

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

remainder to the right heirs 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 ex∣change of the land to be first perfected.

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

When the wife is endowed by the heir of her husbands lands, she shall be said to be in immediately from the husband. And therefore if the husband were a disseisor, and the heir in by descent, yet the disseisee may enter upon the wife.

Goods taken out of the possession of an executor who refuseth, and administra∣tion is committed to I.S. I.S. may have an action of trespass, supposing they were taken out of his possession: for he shall be said an Administrator from the very time of the death of the intestate.

These rules of common reason do many times cross and encounter one another, which is the greatest difficulty that we find in the arguing of our cases. But to help this, the general ground is according to the former rule ( _____ _____ ) _____ _____ that

100. Those prevail that carry the more ex∣cellent and perfect reason with them.

Tenant for life makes a lease for life without naming whose life, this shall be in∣tended for his own life (Rule 74.) for else it were a wrong. But if a tenant in tail make such a lease for life▪ this is a discon∣tinuance, and for life of the grantee (Rule 86.) for it is strongest against the grantor, and most beneficial for the grantee.

Things executed where the husband is seised in the right of his wife, shall not be avoided by divorce: as waste committed, receit of rent, wards, or presentments that have fallen, gifts made of the wifes goods, &c. Rule 39. But otherwise it is in matters of inheritance, as if the husband disconti∣nue and charge the wifes lands, release or manumiss villains, &c. Rule 30.

A feoffment is made with warranty, the feoffee dieth having issue two daughters, who make partition of the land. This war∣ranty shall be divided, notwithstanding the partition which is their own act, and therefore not so much favoured, Rule 46. For the land cometh to them originally by act in law, that is by descent, Rule 5.

If the Chancellor die before his servants priviledge discussed in bank, yet it shall be allowed, notwithstanding the cause of his priviledge now be gone. (contrary 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 prejudice him

where no folly was in himself. Rule 63.

The husband possessed of a term in the right of his wife, maketh a lease of parcel, rendering a rent, the wife shall have the residue of the term, but not the rent, Rule 9. notwithstanding it come in lieu of the land, Rule 93. and be as it were an ac∣cessary unto it, Rule 25.

Things may be done in the night time, notwithstanding, Rule 49. where there is a kind of necessity of doing them then, Rule 44. as arbitrement made and delivered in writing, the last day after the Sun set, is good enough: for judgments and arbitre∣ments require long advice.

So may goods be distrained in the night time for dammage feasant.

If one of the Chapter infeoff Dean and Chapter, by that he himself shall take by his own livery, Rule 18. notwithstanding Rule 20.

A man may do an act to himself, notwith∣standing Rule 2••. where the law cannot do otherwise, Rule 18. as a feme tenant in so••age may endow her self, an executor pay himself, &c. Counts and declarations must be certain, Rule 66. yet things which contain a necessary implication are good enough, Rule 94. as in an ejectione firmae, & 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 information upon the Statute of usury; & count that the defendant took per viam, &

medium corruptae mutationis, where it should be accomodationis, yet it is good enough.

Corporal service as suit of Court, &c. cannot be done by another, Rule. 14. not∣withstanding Rule 92.

Matters of trust or authority, &c. can∣not be granted over; because being strict∣ly taken, they are esteemed to belong to the person, & therefore guided by Rule, 15. Yet an office of skill and diligence to one and his heirs, may be granted over. So upon a Letter of Attorney to deliver seisin to A. he may deliver it to the Attor∣ney of A. for that upon the matter is a pos∣session delivered to himself, Rule 21.

Tenant in tail makes a feoffment with warranty, and leaveth to descend a rever∣sion in fee simple expectant upon an estate tail, which I.S. hath; this is no assets, for it may be tolled by a common recovery (and therefore the law esteemeth it as if it were so.) But it seemeth otherwise of a reversion depending upon an estate tail of land which the issue himself hath, for it were the folly of the issue in tail to cut it off, Rule 70.

Notes

• 27 H. 8. 24.
• 25 El. Earl of Leic. c.
• 18 H. 3. rec. 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. 36.
• 20 El. Dy. 362.
• 1 E. 6. Br. 18.
• 21 El. 563.
• 21 El. 540.
• 11 H. 7. 11.
• 7 H. 4. 6.
• 9 E. 4. 1
• 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.
• Park. 41.
• 13 H. 8. 15.
• 14 El. Dy. 347.
• 7 H. 4. 9.
• 12 El. 379. b.
• 25 El. Earl of Leic. case.