that the court ought to have abated the writ for that [274 a] cause. (1) 4. The demandants have grounded their formedon only upon the fine, 23 Eliz., whereby the land was given to the Lady Elizabeth in tail, the reversion left to the Lady Frances; and that the Lady Elizabeth is dead with issue, and so it ought to revert, per form. donationis; whereas now upon the whole case it appeareth of the demandants' showing to the court, that since that gift in tail made, the reversion was conveyed away by the demandants, by the fine, 3 Jac., though returned unto her by way of use, and so alterations made of the reversion since the gift in tail. What will be the effect of this appearing to the court. of her own showing and confession, and whether that were cause to abate the writ, is a question; and I hold also, that this was no cause to abate the writ. 5. What the stat. 18 Eliz. of jeofails will work in this case upon both faults: and I hold, that in this case it cures both these causes of abatement. So I shall conclude, that for a third part the demandant is to be barred, and to recover the other two parts, for so much as is in question upon the special verdict, which is Ewhurst and Salehurst. (2) pany in a deed, how they shall be expounded. To the first point, the truth of the case is, that of some Clauses in comparts of the land in the deed mentioned, the Lady Frances was tenant in dower actual, of the endowment of Sir P. Sidney. But of the lands of Ewhurst and Salehurst, which is the land in question, upon the special verdict, she had neither actual dower, nor title of dower, nor any other title, but her reversion in fee, as it is found in the special verdict. (1) Upon this point see 1 Saund. 285, Duppa v. Mayo, and n. (7.) (8.) The rule there stated in the text is that, 'when a man brings an action for two things, and it appears that he cannot have an action at all for one of them, then the whole writ shall not abate, but he shall have judgment for that which the action is well brought for, and shall be barred for the rest: but if it appear that he may have an action in another form for the other thing, there the whole writ shall abate.' Sergeant Williams, in his note, cites numerous cases in which the rule, in both its parts, is recognized, and he adds, that where it appears from the confession or showing of the plaintiff himself, that he has no cause of action for part, the whole writ shall abate.' See also 4 Barn. and Cres. 922, Johnstone v. Huddlestone. (2) See Com. Dig. tit. Abatement, M. acc. [274 b] Dy. 239. a. b. [275] Whereupon, 1. I hold, that for so much as she had in dower, that very third part passed by the deed and fine divided to the Earl of Rutland and his heirs, during her life, and no other part: but where she had no dower, as of Ewhurst and Salehurst, the third part of the reversion in fee did pass for her life undivided; and so the sentence, which is but one in words, hath divers operations, according to the nature of the things whereupon it works. For, though the deed and the grant contained in it be induced with a recital, that the Lady Frances did hold a third part of the manors and lands in the deed mentioned, (whereof Ewhurst and Salehurst are parts,) as of dower, &c. yet then it proceeds, that, in consideration of money, they, &c. demised and granted, &c. to the Earl of Rutland, in these words; all the state of them, the said Earl of Clanrickard and Lady Frances, of and in all that the third part of the manor of Robertsbridge, &c. and all that their estate of and in the third part of all the lands thereunto belonging, in Ewhurst and Salehurst.' So that the words of grant are not bound to the words of dower recited, as if they had said, all the dower or estate in dower, or all her third part which she holds in dower, but loosely and at large, all their estate in the third part of the manors, towns, &c. So the words being general, must not be frustrate in any part they should be, if they were restrained only to dower. So then there is no cause to urge the necessity that the the general covenant should create any use of itself, because else there were no use of these lands whereof there was no dower; for therein you had my opinion clean contrary. But now I hold, that no more shall pass by this deed and fine, but a third part of all in use to Rutland, though the conusees were seised of the reversion of the whole and yet I grant, that if a man seised of land in fee, will covenant with I. S., for money, to do all acts that he shall require for assurance of the land to him and his heirs, and then levy a fine to him, that this covenant and fine will give him the whole land; for the fine passeth the land; and a declaration of the use, either express or in law, is sufficient; and this covenant is no less than a decla : other [275 a] ration, and it stands in its full strength, without any other thing to qualify it. So of this then would be no more question. But now consider this case, which hath a fine and a like 2 Cr. 172. covenant also in words, and yet shall pass but a third part; whereof the reason is, the wisdom and the benignity of the law, that being to judge of an act, deed, or bargain, consisting of divers parts, containing the will and intent of the parties, all tending to one end, doth judge of the whole, and gives every part his office to make up that intent, and doth not break the words in pieces. Now here the deed contains the bargain, which is a grant, for money, of all the estate of the Earl of Clanrickard and the Lady Frances, of the third parts of several things, to the Earl of Rutland, by several distinct clauses. Then follows the habendum, to limit the estate to the Earl of Rutland, (which was not before, though it might have been,) in these words; 'to have and to hold their estate of and in their said third part, &c., to the Earl of Rutland, his heirs and assigns, during the life of the Lady Frances.' So these two parts, the premises, containing the grant itself and the things granted, and the habendum, containing the estate, have done their office clearly and without ambiguity, and have given only their third parts, and of a limited estate express. Then follow two ordinary covenants attending upon this conveyance; one for perfecting of this conveyance by further assurance; the other for well enjoying of that that is conveyed. Now who sees not, that the office of these covenants, when they follow in express grant, is not to give anything, but to assist, further, and support, being as a wall or monument about it; and therefore cannot be understood to exceed that whereunto they are said to be but handmaids, according to the rule of the great Master; the servant cannot be above the master. And because it may appear how absurd it will be, to take these covenants as if they stood alone, without respect to the whole context and intent of the deed. [275 b] [276] Ant. 168. The first of these two covenants is, that the Earl of Rutland, his heirs and assigns, shall, at all and every time and times hereafter, enjoy the third parts discharged and saved harmless of all titles of the said earl, or lady Frances. This covenant, though it be restrained to the third parts, yet it is not restrained to the heirs, as aforesaid, but at large, for all heirs of the Earl of Rutland, and at all times, that is, forever; yet no man would judge this covenant for an heir of the earl, after the death of the lady Frances; for it is against sense and nature, that I should covenant that those heirs should enjoy the estate, that were plainly excluded from the estate by the limitation. Yet if this covenant stood alone, clearly it would reach to all heirs, and forever, according to the words. So you see that clauses in company have other constructions than when they are alone. Now this other covenant for assurance is clearly restrained, likewise, to the limits of the bargain, by all the parts and words of it, as well for the third parts, as for the limited heirs, for these apparent reasons. 1. First, it is joined to the former covenant of enjoying, under the same line and covenant, as depending upon it; which was expressly only of the third part. 2. Then it is for other and further acts. 3. Then, that those acts must be reasonable, and reasonably devised, therefore not differing from the bargain. 4. Then, that they must be for the better assurance, surety, and sure making, which are all governed by the word better, and must be for the better of that that was before. Lastly, of the estate, (not of all their estate, as the counsel have expounded it,) to the Earl of Rutland, his heirs and assigns, as aforesaid. Now they that object, press this only word,' their estate' and pass by all the rest that serve for declaration and restriction. Note, it is not all their estate.' Case Stuckley & Butler, Hill. 12 Jac. Rot. 627. The Earl of Sussex, lord of the manor of Cleave, sold to George all [276 a] his woods, timber, and trees, growing super totum illud manerium de Cleave; viz. upon three coppices named: we all agreed, that if the word totum had not been, the viz. had restrained. Now I say, that, considering all the former parts of the deed, being expressly for thirds, and an explanation of this very covenant by the former observations, their estate in this case shall be understood not the estate at large, but their estate granted; and much the rather, by reason of the close of the words, as aforesaid; which, as it is confessed by the other side, limits the generality of the heirs, by the intent of the rest of the deed; so standing indifferently in the end of the covenant, doth likewise extend itself to the thing and estate given, by the like intent, and upon the same reason; the rather because there is no violent word 'of all their estate;' so it shall be of the same sense, as if he had said 'their estate to him and his heirs, according to the true intent and meaning of these presents,' or, their estates in all the lands aforesaid,' to the heirs aforesaid. But there might have been more doubt, if the words 'as aforesaid,' had been placed thus, that he should make further assurance to him and his heirs, as aforesaid, of their estate,' &c. And yet I should not have doubted much even of that, as I observed upon the former covenant of enjoying, that speaks of heirs at large, without restriction, as aforesaid; for covenants, conditions, reservations, warranties, do all wait and join to the grants. 1 And. 236, 283. And this is the very reason of the judgment in the Lord Russel's case, Co. lib. 11. 51, where a farm was demised, March 9. 1 Cr. excepting one close by name, and the lessee covenanted 222. to repair the fences of the premises; and it was adjudged, that the covenant did only extend to the demised premises : and the like is said to have been adjudged, 10 Eliz., upon a demise of land between lands named for abuttals. The 1 Cr. 216. word 'premises,' in the like covenants, shall not reach to the abuttals; yet the word premissa, in his full and large sense, is as much as prementionata or prenominata; as Montague, in Dive's case, Plow. But a wise man, in his |