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 the argument of Serjeant Finch.

NOw for the second point admit, that this is a precedent condition, whether by the death of Robert before the first of September, the condition is become impossible to be performed, because that the letter of the condition is, that if Ro∣bert Foyn pay to the said Anne &c. and I hold others are inabled in Law to per∣form that, and that Robert his heirs or Executors may pay that: and a thing which is implied or supplied by the Law is aswell, as if it had been expressed, as between Corbet and Cottow 39. Eliz. a bond to appear such a return of the Term at Westminster, and the Term is adjourned before the day to Hartford, and ru∣led that he ought to appear where the Term is, and so in many cases where the words are short and curtailed, the law will supplie that: 41. Ed. 3. 17. a feofment to two to infeof another, if one die, the survivor may make that, and yet it was not said that the Survivor may, and so is Brook joyntenants 62. and conditions 290. words in the Copulative may be taken in the disjunctive, and there cannot be a more apt case, then Littleton fo. 76. where though there are the words of the feoffor, and the feoffee only; yet the heirs of the feoffor, or the feoffee of the feo∣fee, may perform that, for the words being so, the Law supplies them; and if there is any difference between our case and Littletons, then our case is the strong∣est, for Littletons case are to defeat an estate which shall be taken strictly, and if his case be taken so favourably, then much more in our case: and we see the words taken strictly, when they are to defeat an estate, as that 3. of Eliz. a lease was made for years upon condition, that if lessee do not pay, then that the lessor or his Assignes may enter, and afterwards the lessor granted the Reversion, and now adjudged that the grantee may not enter, because it failes of the word heirs in the reservation of the condition, and for that reason the lessor had but an estate for life in the condition, which he may not transfer to another, because he had not fee in the condition; and there was a case adjudged Pasch. 41. Eliz. where a man was bound to infeof the obligee and his heirs, and in this case the obligee died, and the Executors sued the obligation, and adjudged that they shall be barred, because he made an estate to the heirs of the obligee, and so is the principal case of the 10.

H. 7. and Dyer 14. where a man covenanted, that he will build a house, his Ex∣ecutors may make that, and so here it may be performed by his heirs, and therefore it is not discharged: and now for the third point, admit, that it is become impos∣sible whether the use will arise: and I hold that it will arise, and in that I take this difference between a fine or feofment, and an obligation upon condition to make such Acts, for the condition of the obligation is taken onely for the benefit of the obligors, and therefore if that do become impossible by the Act of the law the obli∣gation is saved, but here the limitation of the uses, are the words of the Conusor, and therefore shall be taken more strongly against him; in which I put this case, if a man had two sons, and he do Covenant in consideration of natural affection, that if the eldest return from Rome by such a day, that then he will stand seised to his use, and if he do not return, then he will stand seised to the use of the youngest son; now if in this case the eldest die before the day, so that it is become impossible that he should return, yet that will not hinder the raising of the use to the youngest son; and so in Dyer 331. the limitter may not have any estate against his own limitation of his uses, for this is his own fact, and so in our case it is his own de∣fault to make such a limitation: and now for the fourth point, whether any notice is requisite to the heirs, and first I agree that in many cases, a man shall not lose a thing except he had notice; but there are two exceptions from this rule, upon which I will put some cases, and then I will applie them, and first the ordinary may present by laps, and he needs not to give notice, for its supposed in law, that the ordinary will in 6. moneths see whether the cure is served or no; nay, if the pa∣tron was a Purchasor, and a stranger present, he had lost his inheritance, and yet no notice ought to be given: and the 12. H. 7. if the Tenant of the Lord do die without heir, and a stranger do enter, and Abates and dies seised, now the Lord had lost the benefit of the escheat, and yet perchance he had no notice of that, and so was the opinion of Dyer and Welch 4. Eliz. that if two Copartners make parti∣tion, in this case, the Lord ought to take notice at his peril; and secondly, when one is bound to take notice at his peril as in Westby's case; the new Sheriff ought to take notice of the Execution upon the prisoners when he takes them, and so is the first of H. 7. 4. a man being bound to perform an arbitrement, he ought to take notice of that at his peril; but in our case here is a presumption in law, that he had notice, for he had the land from his ancestor, and in the same degree, and so the law doth intend, that he had notice of the conditions, and if he had not, it is the default of his Ancestor, that he had not left his deeds with him. Secondly, the heir is privie to the condition, this doth descend to him, and therefore he ought to take notice of that: and put the case, that an Action of debt is brought against the heir, upon the obligation of his father, and he pleads he had nothing by discent, and it is found that he had a reversion expectant upon a Term for life, of which he had not notice of, yet that will not excuse, for the law intends that he had notice, and that he shall be charged as if it were his own debt, and also the deed after the death of his Ancestor doth appertain to him, and if the deeds are kept from him, he may have an action for them, and besides, here no man is bound to give him no∣tice, for if it should be given, it ought to be given to the heir, or to the Executors, for they may both save the land by the performance of the condition; nay, if there be 20. Coheirs, there ought to be notice given to them all, because they are to lose their inheritance by that, and it is not like to the case which was adjudged, where there are two obligors to make such an assurance as the obligee shall devise, there a devise to one is sufficient, because this concerns a personal thing, but otherwise when this doth concern an inheritance as here: but I relie upon the reason of the first forming of the deed, if I am not bound to give notice at the time of the making of the deed, I shall not be bound to give notice by any matter ex post facto: and yet I do agree that in many cases where a thing is certain at the first, and doth refer to some future agreement, that in such cases, there ought to be notice given to the partie, as Hill. 12. Iac. in this Court Rot. 109. where a promise was made

upon a consideration, that the other will with draw his suit which he had in the Ex∣chequer; that then he will give to him so much when he came into Somersetshire, and adjudged that the partie ought to give notice when he came in to Somerset∣shire; but in our case every thing is certain at the time of the making of the deed 38. Assises 7. if a feofment is made upon condition to regrant to the feoffor and his heirs, if in this case the feoffor do die, he is not bound to regrant to his heirs without a request; another reason is, who shall give notice to the Lady that Foyn is dead, she is bound to take notice of that at her peril, and also if the Lady had died, who shall give notice to the Executors, that they may attend to receive the money, for if they do not attend, this is a peremptory refusal; and for that rea∣son it is equitie, that if no notice is to be given of one side, then there shall be none given of the other side; and so I conceive, that there doth not need any notice; and now for the last point &c. of the estate for life, whether if no fee do arise, whether she had lost her estate for life, and first this is no Forfeiture, for here he in re∣version is partie; but it is said, that this is extinct, but let us examine, if this had been before the Statute of uses, no more use will result then was before, and for the estate for life that is saved, and it was resolved Trin. 5. Iac. that if Tenant for life grant his estate by fine to another, and yet he doth express no use, that it shall be to the use of the partie, because that the Law intends that by this it is disbur∣thened of the danger of waste: but in our case, the estate of the Conusee is saved by the Statute of the 27. H. 8. for this saves all rights, titles, possessions &c. of those who shall be seised to any use, and so was it adjudged in Cheny and Oxenbridge his case, that the Term for years was saved, but the doubt in that case, was not whether a Term was saved which he had to his own use, but that which he had to the use of his wife, and adjudged that this was saved; and 32. Eliz. it was ruled in the Chancery, between Tates and Willers, that if he in reversion do infeof lessee for years and two others, there it was ruled that the Term was saved, and so it was adjudged Trin. 17. Iac. Rot. 246. Francis Priors case, that where the lessee for years is, and he in reversion levies a fine to the lessee, to the intent that he suffer a recovery, here the Term is saved, and yet for the time the lessee was seised to his own use: but because that the fine was Preparatory to inable him to suffer the re∣covery; now in this case after the recovery suffered, that will look back to the first agreement of the parties, and so the Statute hath saved the Term: and for that reason, if the Statute do save a Term which is of small account, much more a freehold, and so he prayed judgement for the defendant, see more after.

Notes

• Cook 3.
• Trin. 22. Jac. C. P.