(a) 35 H. 6.33. b. Br. Estop. 23. Fitz. Estop. 57. 8 Co. 54. a. Plowd. 156. a. b. Hob.31. Co. Lit. 12. a. Ant. 9. a. (b) Ant. 9. a. The resolution of the court. Feoffment by parol to the use of A. for life without impeachment of waste with remainder over, admitting the clause to be Elizabeth is heir to Peter: and the reasons of the book in (a) 35 exempt from impeachment is void, yet the estates are weil executed. Where uses are declared by a precedent indenture, and afterwards a common re covery is had accordingly, no parol aver ment can be And a (c) difference was taken between indentures precedent, which shall direct the uses of a subsequent recovery, and indentures subsequent: for when precedent indentures are made, and afterwards a recovery follows accordingly, there no averment can be taken by parol, that the recovery was to other uses than are declared in the indenture; for nothing vests in any till the recovery is had; and in such case a declaration by parol will not control the declaration by deed: but against an indenture subsequent, declaring the uses of a recovery precedent, there, averment may be taken that other uses, than in such *indenture are declared, were expressed and limited before and at the time of the recovery, because by such limitation, the use and estate was vested according to such limitation, which cannot be devestaverment may ed by any declaration by indenture subsequent. taken that the recovery was [*11 a.] to other uses: but where the indenture is subsequent, be taken, that other uses than in such indenture are declared, were expressed and limited before and at the time of the recovery. (c) 5 Co. 26. Cr. Jac. 29. 1 Brown. 191.1 Roll. Rep. 42. Palm. 507. Cr. El. 218. Bridgm. 113. 2 Co. 76. a. Salk. 676. 1 L. Raym. 155. 290. 1 Atk. 7. Such subsequent declaration shall not annul mean estates, charges, or interests. It was also resolved (as appears before) that the said declaration subsequent by deed indented should stand good against the said Peter Vavasor and his heirs, forasmuch as appeareth, there was no other declaration of any other use: but if after the recovery had, Peter Vavasor had sold, or given, or charged the lands to others, which would be defeated and annulled by the declaration subsequent, there such subsequent declaration of itself should not subvert the mean estates, charges, or interests, unless it could otherwise be proved, that by the certain and compleat agreement of the parties, the recovery was had to such uses, for by judgment of law such declaration subsequent shall be sufficient, when no other certain and compleat declaration or limitation of any other use, either at the time, or before the recovery be made, mon recovery use results to or any estate or interest mesne be vested: and as when a com- When a common recovery is suffered without consideration, it is in judgment is suffered of law, without any proof to the use of him who suffers the re- without concovery, if nothing is proved to the contrary; so when such sub- sideration, the sequent declaration (as in the case at bar) is made, it shall be the party sufsufficient of itself, without any other proof of the declaration of fering the rethe same uses, either before, or at the time of the recovery, if no covery, if nor thing is proved other limitation of the use was made, nor any mesne estate or tothe contrary. · shall declare 375. b. Lit. f. 161. a. 710. Co. Lit. (b) Perk. sect. 190, 191. Cr. Post. 22. b. Br. interest of any other thereby defeated. And because the in- Instances tention of the parties is the direction of uses, in the argument where an act of this case many cases were put, where an act subsequent shall subsequent declare the intention of a general act precedent: as if (a) te- the intention nant in tail has issue two daughters, and dies, and the elder en- of a general ters into the whole, and afterwards makes a feoffment thereof act precedent. with warranty, this is a lineal warranty for one moiety, and a (a) Lit. sect. collateral warranty for the other, for the feoffment subsequent shall declare the intention of the general entry, that it was only for herself, or otherwise it would be a warranty which commenced by disseisin for one moiety, and therewith agreeth Lit. cap. Gar. f. 160. So if the lord comes upon the tenancy, and takes and drives away an ox, if he impounds it, the taking shall be adjudged for a distress: but if he kills the ox, this act subsequent shall declare his intention ab initio, and shall make him. a (b) trespasser, and therewith agree 12 Ed. 4. 8. b. 28 H. 6. 5. &c. And as to the (c) 4th reason and objection which was made, that it was but matter of evidence tending to prove to what uses the recovery *was had, that has been answered before, that in judgment of law it is sufficient to declare the use when nothing appears to the contrary, as in the case of indentures precedent, or when a recovery is suffered without any consideration, and without limitation of any use: but as to the point of pleading, it was resolved, that as well in the case at bar, as in the case of Where there an indenture precedent, and recovery suffered without considera- are indentures tion, the usual form of pleading ought not to be altered, sc. to aver that the recovery was suffered to such uses (D), and upon the evidence the court ought to direct the jury according to law, or that they should find the truth of the case, as in the case at bar they do. And the Justices in this case cited a former reso. lution in the point in the Court of Wards, between the same parties, Hil. 21 El. the whole special matter as before being found by office, and transcribed into the same court, whereby Sir Christopher Wray, and Sir James Dyer assistants to the said court, and by the advice also of other Justices, it was resolved, that the said indentures subsequent were sufficient to declare the uses of the recovery precedent, because nothing appeared to the contrary (E). And as to the fifth and last reason or objection which was made, it was answered and resolved, that no mischief a. or inconveniency could ensue upon this construction, as was pretended at the bar, but great inconveniency would ensue on the (D) Acc. Tregame v. Fletcher, 2 Salk. 676. S. C. 1 L. Raym. 155. (E) It is not material that a considerable time has elapsed before the uses are declared. subsequent, or where the recovery is sufconsideration, the pleading precedent or fered without should be general, that the recovery was suffered to such uses. Hutt. Argum. 48. Moor 192. 2 Roll. Rep. 362. 1 Ventr. 519. Antea 10. 368. Cro. Jac. Bushell v. Burland, Rep. Temp. Holt, 733. Vid. ante, Countess of Rutland's case, 5 Co. 26 a. vol. 11. p. 51. (a) 35 H. 6.33. b. Br. Estop. 23. Fitz. Estop. 57. 8 Co. 54. a. Plowd. 156. a. b. Hob.31. Co. Lit. 12. a. Ant. 9. a. (b) Ant. 9. a. The resolution of the court. Feoffment by parol to the use of A. for life without impeachment of waste with remainder over, admitting the clause to be Elizabeth is heir to Peter: and the reasons of the book in (a) 35 exempt from impeachment is void, yet the estates are well executed. Where uses are declared afterwards a common re covery is had accordingly, no parol aver ment can be : And And a (c) difference was taken between indentures precedent, by a precedent which shall direct the uses of a subsequent recovery, and inindenture, and dentures subsequent for when precedent indentures are made, and afterwards a recovery follows accordingly, there no averment can be taken by parol, that the recovery was to other uses than are declared in the indenture; for nothing vests in any till the recovery is had; and in such case a declaration by parol will not control the declaration by deed: but against an indenture subsequent, declaring the uses of a recovery precedent, there, averment may be taken that other uses, than in such *indenture are declared, were expressed and limited before and at the time of the recovery, because by such limitation, the use and estate was vested according to such limitation, which cannot be devestaverment may ed by any declaration by indenture subsequent. taken that the recovery was [*11 a.] to other uses: but where the indenture is subsequent, be taken, that other uses than in such indenture are declared, were expressed and limited before and at the time of the recovery. (e) 5 Co. 26. Cr. Jac. 29. 1 Brown. 191.1 Roll. Rep. 42. Palm. 507. Cr. El. 218. Bridgm. 113. 2 Co. 76. a. Salk. 676. 1 L. Raym. 155. 290. 1 Atk. 7. Such subsequent declaration shall not annul mean estates, charges, or interests. It was also resolved (as appears before) that the said declaration subsequent by deed indented should stand good against the said Peter Vavasor and his heirs, forasmuch as appeareth, there was no other declaration of any other use: but if after the recovery had, Peter Vavasor had sold, or given, or charged the lands to others, which would be defeated and annulled by the declaration subsequent, there such subsequent declaration of itself should not subvert the mean estates, charges, or interests, unless it could otherwise be proved, that by the certain and compleat agreement of the parties, the recovery was had to such uses, for by judgment of law such declaration subsequent shall be sufficient, when no other certain and compleat declaration or limitation of any other use, either at the time, or before the recovery be made, mon recovery use results to shall declare (a) Lit. sect. 375. b. Lit. f. 161. a. 710. Co. Lit. (b) Perk. sect. 190, 191. Cr. or any estate or interest mesne be vested: and as when a com- When a common recovery is suffered without consideration, it is in judgment is suffered of law, without any proof to the use of him who suffers the re- without concovery, if nothing is proved to the contrary; so when such sub- sideration, the sequent declaration (as in the case at bar) is made, it shall be the party sufsufficient of itself, without any other proof of the declaration of fering the rethe same uses, either before, or at the time of the recovery, if no covery, if nothing is proved other limitation of the use was made, nor any mesne estate or tothe contrary. interest of any other thereby defeated. And because the in- Instances tention of the parties is the direction of uses, in the argument where an act of this case many cases were put, where an act subsequent shall subsequent declare the intention of a general act precedent: as if (a) te- the intention nant in tail has issue two daughters, and dies, and the elder en- of a general ters into the whole, and afterwards makes a feoffment thereof act precedent. with warranty, this is a lineal warranty for one moiety, and a collateral warranty for the other, for the feoffment subsequent shall declare the intention of the general entry, that it was only for herself, or otherwise it would be a warranty which commenced by disseisin for one moiety, and therewith agreeth Lit. cap. Gar. f. 160. So if the lord comes upon the tenancy, and takes and drives away an ox, if he impounds it, the taking shall be adjudged for a distress: but if he kills the ox, this act subsequent shall declare his intention ab initio, and shall make him a (6) trespasser, and therewith agree 12 Ed. 4. 8. b. 28 H. 6. 5. &c. And as to the (c) 4th reason and objection which was made, that it was but matter of evidence tending to prove to what uses the recovery *was had, that has been answered before, that in judgment of law it is sufficient to declare the use when nothing appears to the contrary, as in the case of indentures precedent, or when a recovery is suffered without any consideration, and without limitation of any use: but as to the point of pleading, it was resolved, that as well in the case at bar, as in the case of Where there an indenture precedent, and recovery suffered without considera- are indentures precedent or tion, the usual form of pleading ought not to be altered, sc. to aver that the recovery was suffered to such uses (D), and upon the evidence the court ought to direct the jury according to law, or that they should find the truth of the case, as in the case at bar they do. And the Justices in this case cited a former reso. lution in the point in the Court of Wards, between the same parties, Hil. 21 El. the whole special matter as before being found by office, and transcribed into the same court, whereby Sir Christopher Wray, and Sir James Dyer assistants to the said court, and by the advice also of other Justices, it was resolved, 48. Moor 192. that the said indentures subsequent were sufficient to declare the 2 Roll. Rep. uses of the recovery precedent, because nothing appeared to the 362. 1 Ventr. contrary (E). And as to the fifth and last reason or objection 512. Antea 10. which was made, it was answered and resolved, that no mischief a. or inconveniency could ensue upon this construction, as was pretended at the bar, but great inconveniency would ensue on the (D) Acc. Tregame v. Fletcher, 2 Salk. 676. S. C. 1 L. Raym. 155. (E) It is not material that a considerable time has elapsed before the uses are declared. Jac. 148. 8 Co. 146. b. Fitz. Distress 82. subsequent, or where the refered without consideration, the pleading covery is suf should be general, that the recovery was suffered to such uses. Hutt. Argum. 368. Cro. Jac. Bushell v. Burland, Rep. Temp. Holt, 733. Vid. ante, Countess of Rutland's case, 5 Co. 26 a. vol. I. p. 51. Objection that the jurors could not in their verdict at large. 2 Inst. 425. other side, for the inheritances of many subjects in England depend upon such declarations subsequent, or at least upon indentures which in truth were delivered after the recoveries suffered, or fines levied. And these resolutions stand with the common opinion of men learned in the law, and common experience; and the alteration of such opinions which concern assurances of inheritances would be too dangerous. As to the 2d point, it was objected, that the jurors could not give their verdict at large, but in a writ of assise, trespass, or this case give the like, where the general issue is pleaded, and not when issue is joined upon a matter collateral to the point of the general issue; for there the jury ought to find the issue precisely, without giving their verdict at large. And they endeavoured to prove it by reason and by authorities in law: for they said that at the Co. Lit. 227. b. common law before the statute of Westminster 2. cap. 30. the jurors in every action ought to have given their verdict directly and precisely, either in the affirmative, or negative, according to the issue joined, and not at large; and this is well proved by the said statute. Item, ordinatum est, quod Justic' ad assisas capiendas assign' non compellant juratores dicere precisè si sit dis[12 a.] seisin' vel non, dummodo dicere voluerint veritatem facti & petere auxilium justiciariorum. Which last as to actions is taken by equity, but only to such actions which are general, and have general issues, as assise, trespass, and the like, and not to actions which comprehended certainty, although the general issue be pleaded. It extends also to general actions, where the general issue is pleaded, and not when issue is joined upon a sole and certain point out of the general issue; and therefore the statute says, non compellant juratores dicere precisè si sit disseisina vel non: and that is when nul tort, nul disseisin is pleaded, which is the general issue in an assise. And the reason thereof was, because upon the general issues in writs, which comprehend no certainty, many and doubtful matters may be given in evidence; so that as the plaintiff and defendant in such cases are at liberty upon the general issue, to give what evidence they will; so are the jurors at liberty when the matter is intricate and doubtful in law, to find the special matter, et petere auxilium justiciariorum. But when either the writ is certain, or when the issue is joined only upon a point in certain, there they cannot be so inveigled and perplexed, as upon a general writ and general issue: and this is the reason that the statute shall be taken by equity, as to actions which are in equal mischief, but not as to issues which differ in cause and reason; and therefore in 7 H. 4. 11. a. J. B. brought an action of trespass against T. de R. for breaking his close, digging his land, sc. three acres of meadow, and spoiling and carrying away his grass: the defendant pleaded it was his freehold, upon which issue was joined, and the jury found a special verdict, sc. that the plaintiff's ancestors were seised of five acres of lands in another county in fee, and the defendant's ancestor of the said three acres of meadow in fee; and an exchange was made between them by parol without deed, sc. that the plaintiff's ancestor should have the three acres of meadow, and the defendant's ancestor the said five acres of land, by force whereof each of them entered and continued in all their lifetimes, and Br. Trespass 81 Br. Verdict. 10. Postea 14.a. |