pay or cause to be paid to Anne 10. l. upon the first of September next, and if he pay then it shall be to other uses (S.) to the use of the same Anne for life, of that part of which she was seised, and of the residue to the use of Robert and his heirs; and they found over that the fine was levied to the same uses the same term; and they found over, that Robert died at the age of 20. years, and a 11. moneths, and this was before the first of September, and it was found, that one Anne, and Elizabeth under whom the Plantiff did claim were sisters and heirs to Robert: and that they had not any notice of the use, nor of the indenture, and that they did not pay the money upon the first of September, but that afterwards they entred, and made the lease &c. and the Defendant claimed under Anne, who is now the Lady Cesar, and now if upon all the matter the Defendant be guilty was the question.
And Crawley Serjeant argued for the Plantiff, and the substance of his argu∣ment was in this mannor, and first he said, that he conceived the points to be upon the special verdict, either to concern the antient estate, or the new estate of the La∣dy Cesar, and here we are also to consider, whether the uses are well created and stand good, by the indenture, and by the fine without the help of the special verdict, and first I will not dispute, when an Infant levies a fine, and dies before the re∣versal of that, whether his heir may avoid that, and this is ruled in Cooks Re∣ports 10. H. 7. 16. that this may not be, because that this trial ought to be by inspection, which now may not be, when he is deed, but that which I will insist upon in the first place is this, when an infant made an indenture to declare the uses of a subseqent fine, and he doth after that at another time levie a fine generally with∣out expressing of any use in the fine, whether he may any wise enter, and avoid the uses of the same fine, or whether the law of necessity doth adjudge the fine to be to the same uses, without the help of any Averment, and I hold that he may avoid those uses, which do stand upon this difference, that it is incongruous to reason, that if the law admits a man to be of abilitie to levie a fine, then at the same instant, or after he may declare the uses, because it it is intended, that he is of full age, and if this had been a fine with grant, and render in which there is alwayes an use ex∣pressed, as 26. H. 8. 2, that the grant of an Infant is absolutely void: but I do agree the case in Beckwiths case of a feme Covert. or of a man of nonsane me∣mory, that their declaration of that subsequent use is good, because that the fine which is levied by them, is a perpetual Bar and conclusion, and by such means there disposal doth conclude them for ever: but it is otherwise of an infant, for he may avoid the fine by error during the minoritie, and the opinion of the book of 46. Ed. 3. 34. is, that if an infant do alien a rent, he may bring a dum fuit infra aetatem, which seems to infer, that the grant of an infant is not absoluely void; I answer that is but the admission of the Court, and 15. 7. 4. if an infant made a deed, and at full age he inrolled that, this is a conclusion for him to denie that, for this inrolment is an affirmance of that, and the reason of that is, because this is an affirmance of the same thing: but here the fine and the uses are distinct, and for that they are voidable, and for the other point the derdict had found, that the fine was levied to the uses aforesaid, whether that had established the uses, and made them unavoidable so long as the fine is in force, and I hold that it had not, for it is no more then ad usus supra dictos, and it had not bettered the uses, for they had no reference to aide the uses: like to the case of the Earl of Leicester in Plowdon, and the 5. Ed. 4. 41. and yet I grant that an Act of Parliament may make a thing void which was good, but so may not a fine, and so held the verdict had not aided that.