Reports of that reverend and learned judge, Sir Humphry Winch Knight sometimes one of the judges of the Court of Common Pleas : containing many choice cases, and excellent matters touching declarations, pleadings, demurrers, judgements, and resolutions in points of law, in the foure last years of the raign of King James, faithfully translated out of an exact french copie, with two alphabetical, and necessary table, the one of the names of the cases, the other of the principal matters contained in this book.

The residue of Michaelmas Term in the two and twentieth year of King James.

ANd now he argued to the third point, which is the great point, whether those words if Robert do not pay, make a subsequent or a precedent condi∣tion; and I hold that it is a precedent condition, and this interpretation stands best with the intentions of the parties, for before Ann had an estate for life, and Robert in fee, and if a present use will arise, then Ann shall have all presently, and leave nothing to Robert, but if the uses do forbear setling till the first of Septem∣ber, and arise according to payment, and all the doubt stands upon this word (if) which is some time taken as a limitation, as if a man gives land to another, and to the heirs of his body, and if he die without issue, then to another there (if) is a limitation, as it is in Bestons case: but here this refers to a contingencie: and therefore it is a condition, and saving the opinion of Hide and of Mountague in Colthursts case: I hold that (if) there was a condition, and regularly (if) is a note of a precedent condition: and I will first prove, that by Logick, for the word are an intire Hypothetical proposition, (S.) the use shall be to An if &c. and in this is a Histeron proteron invertio ordinis partium, that the consequent should be before the Antecedent: in this manner if Robert do not pay 10. l. to Anne the first of September, then it shall be to the use of Anne, and so quelibet pars in Loco proprio redigenda est, and then if it is so, it is no doubt but this is a precedent condition, and he cited Wheelers case 14. H. 8. a man granted his Term, if he could procure the good will of his Lessor. and this was adjudged to be a precedent condition, and so is Bracton Lib. 2. cap. 6. if the condition is in fu∣turis, then it is alwayes precedent as to do talem rem si dederis mihi 10. s. there it is said, valet donatio sed suspenditur tanquam &c. and if we observe quite thorough Wheelers case this is alwayes a note of a precedent condition, and yet I grant that in some case it may be a note of a subsequent condition, but that is quando impediatur &c. as in the principal case in Colthirst si vellet inhabitare there of necessitie this ought to be a subsequent condition.

Now the next point is, whether the condition is discharged by the the death of Robert before the first of September; and I hold that it is, for If distinguisheth as if the word had been, that if Robert do not pay; yet if he die before the day, he is discharged of the payment, for there was not any default in him, for all Humane contracts must give way to this Statute of mortalitie, Statutum est omnibus mo∣ri, and there was not any default in the heir of Robert, for he was not bound to pay, and therefore he needs not to do that being to his prejudice, but my chief rea∣son is upon the general rule of all conveyances, for our law in its institution was a Law of mercy, and will indeavour to iustifie Acts made in obedience to that, and to excuse defaults of disobedience: and this is the reason of Master Littletons case, if a feofment is made upon condition, that if the feoffor pay 10. l. such a day &c. now that being to reduce an estate is not taken litterally, but if the heir or ex∣ecutor pay that, this is sufficient to reduce the estate, and so it may be paid at o∣ther places, and to other Parsons, and so if the condition is to be performed of the part of the feoffee, there his feoffee may pay that.

The next point is, whether any notice is requisite, and he held that there ought to be notice, because the heirs are ignorant of that; and in some case where a man is bound to take notice of that; yet by the Act of Law, that shall be discharg∣ed, as in Sir Andrew Corbets case: but now for that last point,* 1.1 whether the antient estate for life is gone, and it is clear, it was gone by the Common Law,

but the question is, whether it is within the saving of the Statute, of the 27. H. 8. and I hold it is not, for this is repugnant to the estates conveyed, and to the uses limited: true if this had been a lease for years, then it had been saved, as is resolved in Lillingstons case,* 1.2 and Dyer 344. but this being a freehold confounds the nature of the fine if it shall be saved, for the nature of such a fine is to carry a Franktenement, and this is repugnant to the uses limited, for it is presently in Anne and her heirs, if Robert do not pay, and for that if the Franktenement is saved, there is no uses limited of that, which is contrary to the intent of the parties, and also here the Conusee took an interest by the fine, and for this it is out of the saving of the Act of Parliament, and so I pray judgement for the Plantiff.

Notes

• * 1.1

  Cook 4.
• * 1.2

  Cook 7.