of 300l. per Annum, but did settle and convey only Part, which was of the Value of 250l. per Annum, and no more, and that subject and liable to the Payment of 15l. Yearly for ever to a Stranger. The said Anne dies without Issue, and Henry Bellingham was Cosin and next Heir, Et si, &c. And Judgment was given in B.R. pro quer'.
Argument for the Plaintiff in Error.—It was argued on the Behalf of Sir William Morley, That this Judgment was Erroneous; that the first Deed, and the Matter of the Jointure was nothing in the Case; that the Question was, to what Uses the Fine was levied? That the Deed executed under Seal between Edward and Anne, and the Trustees, did effectually declare the Uses of this Fine, and that the second Instrument cannot be made Use of, as a Deed to controul the former; that the first was fairly made, and all Parties requisite concurring to it. And that of 31 Jan. was not a Deed; for a Man cannot make a Deed to his Wife, or to himself; this cannot be construed a Deed Poll, when 'tis Indented; for that is to construe a Thing different from what it is: Intent may be construed, but one Thing or Sort of Instrument can never be taken for another. Then supposing it a Deed Poll, it doth not revoke, it takes no Notice of the. Fine or the Deed; it hath no Reference to either of them; it says that all Agreements are to be void; but how? 'Tis not absolutely; only till a particular Thing be done: So that 'tis not a Revocation, so as to annul the Deed of the 29th, and the Husband by this neither did, nor could direct the Use of the Fine to be to the Wife. Suppose that, before the Statute of Uses, a Man had declared an Use to his Wife, it was no Trust or Use, for that no Subpoena lay at the Instance of the Wife against the Husband. A Man could not be a Trustee for his Wife. Now no Use can be executed by the Statute, but where a Subpœna did lie before the Statute to compel the Enjoyment according to it: And therefore 'tis, that a Corporation could not be seised to an Use, because no Subpœna; and no Subpœna, because no Attachment lay against a Body Corporate. Suppose the last Deed to be any Thing, 'tis only a Parol Evidence, and that will not revoke the first Deed.
Deed and Fine are but one Conveyance.—Then here's no Variance between the Fine and the Deed of the 29th: The Deed says a Fine is already acknowledged, and to be levied the next Hillary Term, between the same Parties, and of the same Lands: This is either the next Hillary Term after the Conusance of the Fine, or after the Deed: Then 'tis not usual to acknowledge a Fine, and levy it a Year after; 'tis not allowable in Practise, and therefore 'tis not to be so Expounded; for Men are to be intended to act reasonably, and according to Common Usage. Now 'tis true, it doth not appear when the Caption was, whether in or before the Term; yet common Intendment must carry it, that the Caption was before the Term, and so 'twas to be a Fine of that Term, or to be in or before the next Hillary; the Parties designed not the Fine should lie for one whole Year: [143] If it had been in or before, it had been well enough; then, tho' those Words are not in, it is plain that the Intent was so. The Earl of Rutland's Case was upon Evidence, and not upon Pleading. If levied before the Time, that is well. The next Hillary Term, is no more, than on or before; or in Hillary next at the furthest, or by Hillary Term next: These all do sound much to the same Purpose in common Understanding. The End of a good Construction is to supply the Defects of Expression; then taking it for the next Hillary Term after that Term. If I do a Thing before the Time, 'tis done in Pursuance of the Intent; for the Day given is for the Advantage of the Party, who hath Liberty given to forbear the Act during all that Space, till the last Day of the Time given; but if he doth it sooner, the End is fulfilled; so Payment before is always reckoned as Payment at the Day. And 'tis so in all Cases, where the Time is not in the most considerable Part of the Agreement, as in Harvest, in Winter, or the like; and the Nature of the Act is such, that 'tis most convenient for the Obligee or Covenantee to have it at that Season, and not before. In the Earl of Rutland's Case, 'tis agreed if within the Time, 'tis good. Will any Man say that this is not the Fine which was meant? If a Covenant be to make a Feoffment in Trin. Term next, such a Feoffment before fulfils the Covenant: This is not a Fine acknowledg'd by any other Parties, of any other Lands, or upon any other Agreement. Suppose a Man had a Power of Revocation by Deed under Seal with Witnesses, and had covenanted in such Manner
