coke b DOWMANS case pasch Elizabeth which be enter in common banc inter it is  pleasing terrae mich Elizabeth rot the use of a precedent recovery may be  declare by a indenture subsequent declare that the meaning of the party now be  and be at the time of the recovery that the recoverors shall stand seize to  the use declare by the say indenture and to no other use c if no other  limitation be make before or at the time of suffer the recovery and no mesne  estate nor interest of any other party be thereby defeat when use be declare  by a precedent indenture and afterward a common recovery be have accord no  parole averment can be take that the recovery be to other use but where the  indenture be subsequent averment may be take that other use than be declare in  such indenture be express and limit before and at the time of the recovery  when a common recovery be suffer without consideration the use result to the  party suffer the recovery if nothing be prove to the contrary where there be  indenture precedent or subsequent or where the recovery be suffer without  consideration the plead shall be general that the recovery be to such use in  all plead as well of the crown as in common plea videlicet action real  personal and mix and upon all issue join either between the king and the party  or between party and party the jury may find the special matter which be  pertinent and tend only to the issue join and upon the law of such matter they  may pray the opinion of the court but if juror find matter at large which be  not within their charge and which be not pertinent to the issue join the court  may disallow the verdict SC and more Skinner Rep Q a latch cro Elizabeth TR  touch pale yellow use Thomas Dowman Esq and Elizabeth his wife bring a assize  of novel seize before John Clench and Francis road justice of assize in the  county of York against Edward vavasor George vavasor and other and complain  they be seize of their freehold in Spaldington Willitoft and Southcave in the  same county c and make their plaint of house acre of land acre of meadow and  acre of pasture and all but the say Edward vavasor plead nul tort nul seize  and the say Edward plead that one Peter vavasor Esq be seize of the tenement  aforesaid put in view and now in plaint in fee against who Andrew Windsor Esq  William vavasor and other Jan year royal power a house Elizabeth bring a writ  of entry in the post of the tenement aforesaid against the say Peter vavasor  returnable octab hill at which day a common recovery be have against he with  single voucher and execute by to have facias seisinam Feb c queen guidem  recaperatio in form prd to have and be to the use of the say Peter for his  life without impeachment of waste and afterward to the use of his old son in  tail and so to the that son in seniority in tail and for want of such issue to  the use of the say Edward vavasor brother of the say Peter for his life  without impeachment of waste and afterward to the use of his old son and to  the heir male of his body and so to the that son in their seniority of the  like estate and for want of such issue to the use of the say George vavasor  Ralph vavasor mark vavasor Robert vavasor Thomas vavasor and Richard vavasor  brother of the say Peter to every of they the like estate with like remainder  to their nine issue male in their seniority in tail and afterward to the use  of the heir male of Peter vavasor knight lawful coke a beget and afterward to  the use of the right heir of the say Richard vavasor and allege the execution  of the use by force of the statute of h and the death of the say Peter vavasor  without issue after who death he enter coke report b er p as in his remainder  and give colour to the plaintiff to which the plaintiff reply and confess the  recovery as the say Edward have allege but further say that the say recovery  be to the use of the say Peter and his heir and that after the death of Peter  tenement descend to the say Elizabeth wife of the say Thomas Dowman as sister  and heir of the say Peter c without hoc quod recovery predicta property prd c  in form predicta habila to be ad use in barra predict eduvardi superius  specificat prout c and thereupon issue be join and it be find by the  recognitors of the assize that the say Peter be seize in fee suffer the say  recovery Rep Q a of the tenement aforesaid as the say Edward have allege and  further the recognitors of the assize say quod in indenture shape to be inter  prfat Peter Pavasor prd andream Windsor and other the recoverors of the other  part pron  interrog  tenor sequitur in hoc word which indenture hear date  primo die of purifying year Elizabeth Regin and witness that it be covenant  conclude condescend declare and full agree between the say party and either of  the say party for himself and his and their heir do conclude condescend  declare and agree by these present to and with the other that be to say  whereas the say Andrew c have this present term of saint Hilary recover to  they and their heir by writ of entry sur seize in Le post against the say  Peter vavasor accord to the usual order and form of common recovery heretofore  use the manor of Spaldington c that the intent and true meaning of all the say  party now be and at the time of the say recovery have and suffer be that the  say recoverors and their heir immediate from and after the recovery so have  and execute shall and shall stand and be seize of the say manor c to the only  use and intent hereafter by these present set forth and declare and to no  other use intent and purpose that be to say and declare and express the same  use mention and allege in the bar of the say Edward vavasor without any  variance and far the say recognitors of assize find that the tenement now put  in view c parcel of the say manor of Spaldington send utrum indenture prod  post recovery prd per prfat Peter vavasor arm in form prd fact habit her that  prd primo die of purifying ac prim deliberate I die of purifying year coke b  say in addition to post recovery prd existen ad use in eaden specific sit good  sufficient in lege ad ducend declarand use prod recovery prd property in look  recognitorum posit in complaint prod specific or not the same recognitores  inside ignorant ind to strive for advisamentum justice cur hic si to see Curi  that the say indenture be good and sufficient c then they find that the say  recovery of the tenement aforesaid be to the same use in the bar of the say  Edward vavasor as the say Edward have allege and that the other defendant have  do no wrong nor seize and if the say indenture be not good and sufficient c  then they find against all the defendant and for difficulty the say justice of  assize do adjourn the party and the record before the justice of the common  plea de to hear To take back quod the same justiciar a house Regin deprd banc  adtunc ibidem considerand to see in here part and in this case two question be  move and argue by the sergeant at the bar if the say indenture make after the  say recovery be sufficient in law to direct and declare the use of the say  precedent recovery if upon a special point in issue upon a without hoc the  recognitors of assize can give a special verdict and as to the first it be  argue that the say indenture be not sufficient to declare and direct the use  of the say precedent recovery for reason and cause when a recovery be suffer  it be without consideration immediate after the recovery the law adjudge it to  be to the use of he who suffer the recovery and his heir then when the use in  the case at bar be vest in Peter vavasor immediate after the recovery execute  before the say indenture make this use so vest can be divest by any  declaration or agreement subsequent and the deed indent shall not conclude the  heir in this case because it be subsequent can by the law divest that which be  vest immediate after the recovery bad and to this purpose they cite the book  in a postea b Fitzherbert assize a ass p e assize where a infant bring a  assize against t of certain land the defendant say that I uncle of the infant  who heir he be hold the say land of coke report a er p he by homage escuage  and four mark rend and die seize and because the plaintiff be within age be  seize the tenement by reason of wardship to which the plaintiff say that the  say I hold in socage c to which t the defendant say to say that you shall not  be admit for the say I your uncle upon a debate betwixt we acknowledge to bold  the same land of we by such service by deed indent and demand judgement if he  shall be receive to say the contrary coke a and show the deed c and that case  for difficulty be adjourn into this court and there it be adjudge that the say  acknowledgement or declaration by deed indent shall not conclude the heir of I  and the reason of Throp chief justice who give the judgement be because by the  deed indent other service can not be grant which be not due before wherefore  take the assize so in this case at bar the deed indent subsequent shall not  conclude the heir of Peter vavasor because it can divest the use which be by  operation of law vest immediate after the recovery and they also cite h b John  a Br estoppel Fitzherbert estop   a Plowd a b hob   light a a crook case where  the like acknowledgement by deed indent be make c and estoppel plead and it be  adjudge that the declaration by deed indent for the certainty of the service  shall not bind the heir of the tenant who be party to the say deed indent  second it be object that every declaration of use n recovery fine c of land  tenement and hereditament ought to be postea b certain otherwise there will be  no certainty of inheritance and this certainty ought to be chief in three  thing know in person to who in land c of which and in estate by which use  shall be limit and declare and if certainty fail in any of they the  declaration be not sufficient but here in the case at the bar there be not any  of these certainty when the recovery be suffer and therefore the declaration  subsequent insufficient it is necessary quod cert person cert terr e et fixed  status to bind together in declaration usu the three objection be that the  limitation and declaration of the use ought to be complete of itself without  any reference to indenture or other write to be make afterward for then it be  but a imperfect communication and no complete declaration a this proposition  must be understand with considerable qualification for it be clear that a  declaration that a fine c shall enure to such use as a shall hereafter appoint  or shall hereafter declare will be good press sheep touch a and that it be but  a communication they allege three reason that the use be many and of great  variety of estate that it concern the establishment of his inheritance of a  great yearly value in his name and family and therefore the intention of the  party never be to leave it to the slide and slippery memory of man which will  be lose in a short time and especial when the say Elizabeth one of the  plaintiff be his sister and heir before who he prefer other of his name and  blood several of the use and estate can not be limit with such quality and  privilege by word without deed as the use limit to the say Peter vavasor and  to diverse other for life without b   a b b   light a postea b more Inst   a b  a   a die pl pl Bridgm hob hetl roll Rep roll Rep Leon Leon Leon   Elizabeth  Plowd b a h a Fitzherbert waste h a h a h a h a a Bulstr park sect h b h a h b  Poph   b Br waste latch b impeachment of waste which privilege to be  dispunishable of waste none can have by word without deed and therefore all  the word which pass betwixt the party before or at the time of the recovery be  refer to indenture coke b to be make thereof and so but a communication and no  complete agreement because id a finishing be quod ex omnibus nest birth  constat et nothing a finishing be dumb to some degree it remains to agendum  the that objection be that the say indenture be but directory and declaratory  of the use of the recovery and be not of any force to raise or create any use  then coke report a er p when the issue be whether the say recovery be suffer  to the say use mention in the bar the say indenture subsequent may  peradventure be good evidence to persuade the recognitors of the assize that  the say recovery be suffer to the say use but of itself be subsequent to the  recovery it be not sufficient in law to direct the use of the precedent  recovery unless by the agreement of the party the use be so declare before or  at the time of the recovery and then the declaration precedent and not that  which be subsequent be the declaration which bind in law and the subsequent be  but evidence to prove the precedent and therefore if the say Edward vavasor  have plead the say recovery and plead also the indenture subsequent to the  effect as the recognitors have find it that will be altogether insufficient  for the indenture subsequent be but the report and evidence of a former thing  know that the true meaning of all the say party c at the time of the say  recovery c be that the say recoverors c and evidence shall never be plead  because it tend to prove matter in fact and therefore the matter in fact shall  be plead b so also in special verdict and in special case for the opinion of  the court fact must be state and not mere the evidence of fact king v Huggins  l raym SC strange butt v bilk price palmer v Johnson will b and if that be  deny the evidence be to be give to the jury and not to the court and therefore  in e b and a John darcy bring a quare hinder against the bishop of Durham of a  disturbance to present to the church of Simondsbury and declare that king  Edward be seize of the manor of wreck in Tindale to which the advowson be  appendant and present c and make the descent of the manor to the king that now  be who give the manor with the fee and advowson to the plaintiff and his heir  c to which the defendant say that the advowson be not appendant to the manor c  to which the plaintiff reply that to this averment the defendant shall not  come for we say that one Edward late king of Scotland be seize of the manor of  wreck and of the advowson and present to the church as appendant and show how  afterward the manor come to the hand of king Edward the grandfather by  forfeiture of John Balliol and show how afterward the king present as  appendant to the manor wherefore the plaintiff do not conceive that against so  many presentment as appendant that the defendant shall be receive to say that  the advowson be not appendant and sir William Herle who give the coke a rule  say the presentment of which you speak be but evidence to the jury that the  advowson be appendant and evidence shall not oust the defendant of his plea  the five and last objection be that if these declaration subsequent shall be  sufficient in law to declare the use of a precedent recovery forasmuch as they  will be restrain to no certain time and therefore may be make many year after  by that mean estate lease and interest in and out of the land vest in the mean  time will be thereby defeat which will be full of mischief and inconvenience  and the case of Arthur a roll jenk cent die pl c a Basset which you may see  report by the Lord dyer Ph man that indenture make four year after a recovery  be hold sufficient to declare the use of a precedent recovery be agree to be  good law for in the say case of Basset the recovery be suffer in h and the  indenture make year h which be long before the statute of transfer of use into  possession at which time a use be but a thing in confidence may be direct and  alter accord to the intention of the party and after the case have be often  argue by the sergeant at the bar the case be argue by the justice at the bench  and it be unanimous resolve by all the justice of the bench that the say  indenture a hut arg more roll Rep vent postea b Cr James a subsequent c after  the stat car two c by which it be enact that all declaration of trust or  confidence of any land c shall be manifest and prove by some write sign by the  party c a doubt arise whether the result use of a fine or recovery can be  defeat by a subsequent declaration the stat Ann c after recite the doubt enact  that the use of the fine or recovery may be subsequent declare by deed since  this last statute it have be doubt whether the word deed in the statute do not  mean deed indent and it have also be say that it be by no mean clear that the  commonlaw do not require the circumstance of indent press cony but both these  position appear to be satisfactory combat by Mr Sugden note Gilbert on use Vid  note b countess of Rutland case   b c be coke report b er p sufficient to  direct and declare the use of the precedent recovery against the say Peter  vavasor and his heir for so it be conclude and declare by the deed indent that  the intent and true meaning of all the party now be and at the time of the say  recovery be that the say recoverors c shall stand seize c to the only use and  intent by these present set forth and declare and to no other use intent or  purpose against which express affirmation and declaration by deed indent the  say Peter or his heir shall never be admit or receive to say that no such use  be declare at the time of the say recovery but that the say recovery  notwithstanding the say subsequent declaration shall be construe and adjudge  by force of a use imply by operation of law to be to the use of the say Peter  and his heir but this declaration by the say deed indent have this operation  in law against the say Peter and his heir that there be a present certain and  complete agreement and declaration of the say use at the time of the say  recovery for so the indenture express purport and therefore all that have be  object that the declaration ought to be precedent or present and b Ant a b  certain and complete and not as a communication with reference to matter to be  put in write afterward be well agree but now this deed indent in judgement  coke b of law do import and witness against the say Peter vavasor and his heir  forasmuch as nothing appear to the contrary that there be a certain and  complete declaration of use at the time of the say recovery and this stand  upon pregnant and apparent reason for inasmuch as Peter and his heir be only  to take advantage for want of declaration of use reason require that this  declaration of the say Peter by his deed indent shall stand against he and his  heir and this case be not like the say case in c ass pl e assize before b c  ass e cite before for in such case if the land be hold before in socage the  tenant can not create or grant knight service which be not due b before and in  the record the infant be not make heir to I but here without question Peter  vavasor the tenant of the land may at the time of the recovery limit what use  he will and Elizabeth be heir to Peter and the reason of the book in a h b Br  estop Fitzherbert estop   a Plowd a b hob   light a Ant a a h be the heir in  such case be not bind because the word of the charter be but by way of recital  that the word of the deed indent be all the word of the lord and not of the  tenant the heir of who shall be bind and that the brother of the half blood be  not heir to the tenant who be party to the deed but in our case it be not by  way of recital but a express affirmation and declaration it be the  acknowledgement and declaration of the tenant of the land itself and the say  Elizabeth one of the plaintiff be heir to Peter vavasor vide e Robert de vale  case and as to the objection which be make that the say privilege to be  without b Ant a the resolution of the court b impeachment of waste can be  without deed c to that it be answer and resolve that if it be admit that a  deed in such case shall be requisite yet without question all the estate limit  will be good although it be admit that the clause concern the say privilege  will be void aid therefore if a man feoff one by parole to the use of a for  life without impeachment of waste with diverse remainder over admit that the  clause of without impeachment of waste in such case shall be void yet the  estate for life with the remainder over be well execute and a c   Cr James  brown roll Rep palm Cr Elizabeth Bridgm   a salk l raym atk c difference be  take between indenture precedent which shall direct coke report a er p the use  of a subsequent recovery and indenture subsequent for when precedent indenture  be make and afterward a recovery follow accord there no averment can be take  by parole that the recovery be to other use than be declare in the indenture  for nothing vest in any till the recovery be bad and in such case a  declaration by parole will not control the declaration by deed but against a  indenture subsequent declare the use of a recovery precedent there averment  may be take that other use than in such coke a indenture be declare be express  and limit before and at the time of the recovery because by such limitation  the use and estate be vest accord to such limitation which can be divest by  any declaration by indenture subsequent it be also resolve as appear before  that the say declaration subsequent by deed indent shall stand good against  the say Peter vavasor and his heir forasmuch as appear there be no other  declaration of any other use but if after the recovery have Peter vavasor have  sell or give or charge the land to other which will be defeat and annul by the  declaration subsequent there such subsequent declaration of itself shall not I  subvert the mean estate charge or interest unless it can otherwise be prove  that by the certain and complete agreement of the party the recovery be have  to such use for by judgement of law such declaration subsequent shall be  sufficient when no other certain and complete declaration or limitation of any  other use either at the time or before the recovery be make or any estate or  interest mesne be vest and as when a common recovery be suffer without  consideration it be in judgement of law without any proof to the use of he who  suffer the recovery if nothing be prove to the contrary so when such  subsequent declaration as in the case at bar be make it shall be sufficient of  itself without any other proof of the declaration of the same use either  before or at the time of the recovery if no other limitation of the use be  make nor any mesne estate or interest of any other thereby defeat and because  the intention of the party be the direction of use in the argument of this  case many case be put where a act subsequent shall declare the intention of a  general act precedent as if a light sect   light b light f a a tenant in tail  have issue two daughter and die and the elder enter into the whole and  afterward make a feoff thereof with warranty this be a lineal warranty for one  moiety and a collateral warranty for the other for the feoff subsequent shall  declare the intention of the general entry that it be only for herself or  otherwise it will be a warranty which commence by seize for one moiety and  therewith agree light cap gar f so if the lord come upon the tenancy and take  and drive away a ox if he impounds it the take shall be adjudge for a distress  but if he kill the ox this act subsequent shall declare his intention ab  beginning and shall make he a b Perk sect Cr James   b Fitzherbert Tresp post  b Br distress b trespasser and therewith agree Edward b h c and as to the c  Ant b c that reason and objection which be make that it be but matter of  evidence tend to prove to what use the recovery coke b be bad that have be  answer before that in judgement of law it be sufficient to declare the use  when nothing appear to the contrary as in the case of indenture precedent or  when a recovery be suffer without any consideration and without limitation of  any use but as to the point of plead it be resolve that as well in the case at  bar as in the case of a indenture precedent and recovery suffer without  consideration the usual form of plead ought not to be alter see to aver that  the recovery be suffer to such use d Acc Tregame v Fletcher salk SC l raym d  and upon the evidence the court ought to direct the jury accord to law or that  they shall find the truth of the case as in the case at bar they do and the  justice in this case cite a former resolution in the point in the court of  ware between the same party hut argum more roll Rep Ventr cro James before a  hill Elizabeth the whole special matter as before be find by office and  transcribe into the same court whereby sir Christopher Wray and sir James coke  report a er p dyer assistant to the say court and by the advice also of other  justice it be resolve that the say indenture subsequent be sufficient to  declare the use of the recovery precedent because nothing appear to the  contrary e it be not material that a considerable time have elapse before the  use be declare bushel v Burland Rep tempt holt Vid ante countess of Rutland  case   a e and as to the five and last reason or objection which be make it be  answer and resolve that no mischief or inconveniency can ensue upon this  construction as be pretend at the bar but great inconveniency will ensue on  the other side for the inheritance of many subject in England depend upon such  declaration subsequent or at least upon indenture which in truth be deliver  after the recovery suffer or fine levy and these resolution stand with the  common opinion of man learned in the law and common experience and the  alteration of such opinion which concern assurance of inheritance will be too  dangerous as to the d point it be object that the juror can not give their  verdict at large but in a writ of assize trespass or the like where the  general issue be plead and not when issue be join upon a matter collateral to  the point of the general issue for there the jury ought to find the issue  precise without give their verdict at large and they endeavour to prove it by  reason and by authority in law for they say that at the commonlaw before the  statute of Westminster cap the juror in every action ought to have give their  verdict direct and precise either in the affirmative or negative accord to the  issue join and not at large and this be well prove by the say statute item  ordinatus be quod justice ad assisas to take in hand assign non compellant a  swearer to dedicate precise si sit seize well non provided coke a to dedicate  uolverint reality fact to strive for help justice which last as to action be  take by equity but only to such action which be general and have general issue  as assize trespass and the like and not to action which comprehend certainty  although the general issue be plead it extend also to general action where the  general issue be plead and not when issue be join upon a sole and certain  point out of the general issue and therefore the statute say non compellant a  swearer to dedicate precis si sit disseizina well non and that be when nul  tort nul seize be plead which be the general issue in a assize and the reason  thereof be because upon the general issue in writ which comprehend no  certainty many and doubtful matter may be give in evidence so that as the  plaintiff and defendant in such case be at liberty upon the general issue to  give what evidence they will so be the juror at liberty when the matter be  intricate and doubtful in law to find the special matter et to strive for help  justice but when either the writ be certain or when the issue be join only  upon a point in certain there they can be so inveigle and perplex as upon a  general writ and general issue and this be the reason that the statute shall  be take by equity as to action which be in equal mischief but not as to issue  which differ in cause and reason and therefore in h a I b bring run action of  trespass against t de r for break his close dig his land know three acre of  meadow and spoil and carry away his grass the defendant plead it be his  freehold upon which issue be join and the jury find a special verdict know  that the plaintiff ancestor be seize of five acre of land in another county in  fee and the defendant ancestor of the say three acre of meadow in fee and all  exchange be make between they by parole without deed know that the plaintiff  ancestor shall have the three acre of meadow and the defendant ancestor the  say five acre of land by force whereof each of they enter and continue in all  their lifetime and die seize after who death the plaintiff enter into both  whereupon the defendant enter into the meadow and be seize four week before  the trespass and dig c and pray the opinion of the justice by the statute of W  cap hankford you be not now in a assize for your charge be but to say who be  tenant of the freehold at the time of the trespass suppose so you have nothing  to do whether the entry be congeable or not wherefore the jury find for the  defendant and upon that judgement be give by which it appear that upon the say  collateral issue of his freehold a special verdict can not be coke b give and  that this case be out of the say Act of W c which Act be cite in the say book  and in coke report a er p a e a postea b Br attaint Br verd Fitzherbert verd a  attaint in e the juror ask if they may give their verdict at large as in  assize and the justice say that they can not b h b Br verd blow a b h Brian  chief justice hold that in rescous which be a writ conceive upon a special  matter see the tenure distress and rescous the verdict shall not be give at  large although the general issue be plead so in debt which always comprehend  certainty although nil debet be plead the verdict shall not be give at large  because these and the like writ which comprehend certainty be out of the  mischief of the say statute but the statute extend to trespass because the  writ be as general as the assize because the plaint and count in they be  general for which reason there the verdict shall be give at large and that be  by the statute but in no special case where the matter be special count no  verdict at large and c blow a Br verd post b I Anders c h c b Fairfax hold  that in no case where the issue be join upon a certain point the verdict shall  be give at large but in trespass which be a general writ if the defendant  plead not guilty the juror may give their verdict at large and so in a assize  upon nul tort nul seize the jury may give their verdict at large so in h Br  verdict the court of common plea can suffer verdict at large in a writ of  entry in the nature of a assize because it be prcipe and comprehend certainty  and in the report of the Lord dyer now new print pasch Elizabeth d die pl post  b d in assize betwixt butler and crouch for land in the county of Somerset  upon a without hoc issue be take upon a prescription upon which the jury give  a special verdict and it be resolve by all the justice of the common plea in  cubiculo meo as the Lord dyer report that upon this special issue by a without  hoc and not a general issue a precise verdict ought to be give of the one part  or the other which be a resolution in the point as it be strong urge and  overrule the point now in question but it be resolve by sir Edward Anderson  chief justice and all the justice of the bench that the special verdict in the  case at bar be well find they hold that in all plead as well of the crown as  in common plea see action real personal and mix and upon all issue join either  between the king and the party or between party and party the jury may find  the e die pl Anders more Inst hob   light b b blow a b a b Goldsb Leon Stamf  plea cor b a Com dig pleader S e special matter which be pertinent and tend  only to the issue join upon which be doubtful to they in law they may pray the  opinion of the court f Vid note r pelham case   a f and this they may do by  the commonlaw which have ordain that coke a matter in fact shall be try by  juror and matter in law by the judge and as ad a roll Rep Bulst Siderf Plowd b  postea a   a   b   light a b a a qustionem fact non respondent judge ita ad  gucestionem law non respondent jurat g Vid Hargr n   light b g but their duty  be to find reality fact and to refer the discussion of the law to the justice  and therefore their find be call b   light a b verdict quasi dict reality the  say of the truth and the determination of the judge be call judgment quasi law  dictum I e Ipsa viva vox law the say of the law and the wisdom of the law be  to refer thing to person in which they have knowledge and be expert accord to  the ancient rule quod c Cr a   io b     light a   c whoever it be to get  knowledge of in hoc see to drive and therefore the law will not compel neither  the juror who have not knowledge in the law to take upon they the knowledge of  point in law either in case which concern life or member or inheritance  freehold good or chattel but leave they to the consideration of the judge nor  the justice of assize nor any other judge be it in plead of the crown or  common plea to give their opinion of question and doubt in law upon the sudden  but in such case have the truth of the case find and upon conference and  consideration to coke report b er p adjudge accord to law in such case and  therefore it be resolve that the say Act of W c d Inst c d be but a affirmance  of the commonlaw and this appear by the statute itself and by authority in law  in all succession of age and as to the statute the precedent and subsequent  clause be consider the precedent be e Inst e to have all men justice de  species of fish in journey clergyman irrotulantes in all respects it is  pleasing in person the dawn placitata as formerly to have to become used which  clause appear to be in affirmance of the commonlaw the subsequent be et f Inst  f de ctero non to put down justice in assisas or to swear falsely some a  swearer nisi eos who ad hoc prius to be summon for at the commonlaw they ought  to come in by the return of the sheriff and so the middle clause touch the  point in question that justice c non compellant a swearer to dedicate prcise c  be but a declaration of the commonlaw as well for the relief of the juror who  upon their oath shall not be compel to find at their peril thing doubtful to  they in law but also for a good caveat to justice of assize and other judge  that they do not upon the sudden overrule question in law for every judge  ought in give his judgement in doubtful case to avoid two thing know  prcipitationem because ad pnitentiam hurry quickly who judge et hard to please  delay know either when the law be determine or to make a question in law where  none be to delay the party which be in effect a deny of justice coke b and for  the better direction of judge in such case and for the advancement of common  right it be enact by the next chapter follow see g Westminster c Inst g cum  some placitatur in person some justice to put forth exception S a matter which  he suppose will serve he in law to strive for quod justice she allocent how si  allocate notueri that who exception to put forth to scratch that exception  petal quod justice sigillum suum to put at in testimonium justice to put at  sing that svan c and this be to prevent precipitation of judge in overrule ex  improvisor question in law for it be a good rule in the a judge c v in fine a  nine chapter of judge consider consult and then give judgement vide for the  bill of exception b Br challenge Br error Fitzherbert challenge b ass p b Br  challenge Br error Fitzherbert challenge c h b b a b e d king a b book of  entry title error in the division of exception by authority in law touch the  second point of the case now in question and of special verdict give in  criminal cause either in case of indictment at the king suit or in appeal at  the suit of the party d Br challenge Fitzherbert challenge d e journey north e  Stamf pi cor a a e Coron S be indict of the death of n and arraign upon it and  plead not guilty and the jury give a special verdict to this effect that a  contention be move betwixt they whereupon the say n now dead strike S cum in  stick of ash in capite ita quod to fall prd S statin cum to rise flee in  quantum to be able prd n Self support with to be cum prd stick ad Self  interficiend si to be able Self to cause to flee usque a certain mouse inter  two house scituatum ultra who transire non to be able any modus cum to take  wholly prd n Self velle interfeciss cum prd stick quod death svan not common  with others to go out non to be able nisi si to ward off to take in hand a  certain polhach Self n cum eod repercussi in capite ita quod statin ind to go  c unde dic quod prd S see defendend prd n to put out of the way non per felon  or ill will prcogitatem c and this verdict find the matter at large be receive  and he have his pardon of course and therewith agree e Coron f Stamf pi cor a  a a f g Stamf pi cor a Br cor Fitzherbert cor g ass p h Br cor h h a I Br  coroner ass Fitzherbert cor Stamf pi cor I e a in a appeal h appeal of murder  treason felony or other offence abolish Geo III cap h of death against William  Halbener he plead not guilty coke report a er p and the jury find a verdict at  large know that the decease strike the defendant on the neck so that he fall  to the ground and when the defendant be upon the ground the decease draw his  knife to have kill the defendant and the defendant lie upon the ground draw  his knife and the decease be so hasty to have kill the defendant that he fall  upon the defendant knife and so kill himself and it be adjudge that forasmuch  as the decease kill himself in the manner it be adjudge upon this special  verdict that the defendant be not guilty and his good not forfeit vide  Fitzherbert king Stamf pi cor b a a e a king Coron and therewith agree l above  king l l ass p coke a m e b a Br Frankmarriage Br estate Fitzherbert tail   b  m king a in a formedon the demandant count of a gift make to I de c in  frankmarriage with Johan the donor sister the tenant plead that the tenement  be give in feesimple and traverse that he do not give they modus form as the  writ suppose and afterward by nisi prius before Whichingham and Chlre a deed  be show in the evidence that the donor give to I de c in book maritagium  Benevento prd cum johan sister shall habend tenant property prd prd John  Johann hredibus nest imperpetumn because aliquan word in speech facto contonta  are in book maritagium aliquan in fee simple a swearer not to know to point  out reality to strive for separation justice superinde and upon this verdict  so find at length judgement be give against the demandant because a feesimple  and not a estate in frankmarriage pass by the deed by which judgement it  appear that in a writ which comprehend certainty as in a formedon a special  verdict may be give vide e verdict vide e in dower e in Prcipe quod To give  back upon a issue collateral to the point of the writ e h in rescous e in  account e in debt h dyer b in debt pasch I Phil mark die b in covenant mich I  Elizabeth dyer in attaint Elizabeth dyer b in debt Elizabeth dyer in debt mich  Elizabeth dyer b in debt Elizabeth die b in ejection firm h die in trespass  pasch Phil and mark die in trespass blow Com in assize of fresh force bring by  the parson of honeylane and note reader in all case when juror find the a   a  Plowd a hob roll hard die pl hut cro Elizabeth cro car side blow b b a special  matter doubtful in law pertinent and tend to the issue which they be to try  there the court ought to accept it but when they find matter at large which be  not pertinent and tend to the point in issue upon which they be to give their  verdict there the court ought to disallow it as impertinent to the issue and  to their charge and upon this difference the book which have some show of  contrariety be well reconcile for example in the case of h a the issue in b Br  trespass Br verdict before a b trespass be join upon the freehold at the time  of the trespass forasmuch as it be find that the plaintiff enter into the say  three acre of meadow upon who the defendant enter and be seize by four week  before the trespass although they find a exchange by parole of land in several  county which be c roll   light a Perk sect c void in law so as the entry of  the plaintiff be lawful yet the issue be join upon the freehold at the time of  the trespass hankford say to the jury in such case accord to law sure your  charge be but to say who be tenant of the freehold the day of the trespass so  whether the entry of the plaintiff be lawful coke b or not you have nothing to  do wherefore the jury find for the defendant which book prove that the juror  can find matter at large which be not within their charge and with which have  regard to the issue join they have nothing to do by which be strong imply that  if the special matter have be within their charge and tend to the issue with  which they have to do that it shall be allow and in the say book of d Br  attaint Br verdict Fitzherbert verdict d e a it do not appear coke report a er  p what be the issue nor what special matter they will have find and therefore  it be to be intend accord to the say difference and as to the opinion in e h b  Plowd a Br verdict before b e h in the same case there be difference of  opinion and therefore they be to be reconcile as aforesaid and as to the say  opinion of f dyer pl before b f Elizabeth and in the same case there be other  clear matter to arrest the judgement and the opinion which be conceive in that  point be in cubiculo without open argument and therefore if it shall not be  intend accord to the say difference it have not any warrant of any book rule  in the point but be against all the say judgement and authority in law in all  succession of age and afterward judgement be give in the principal case as  follow ad who diem to come tam prd though Dowman Elizabeth how prd Edward  vavasor et Geo vavasor c per attorn swine prd et super hoc look promise et per  justice hic plene comprehension to see eisdemjusticiariis quod prod indenture  per prfat pet vavasor a migerum post prd recovery in form prd fanctam habitan  to be good sufficient in lege ad ducend declarand use recovery prd de property  prod cum appurtenance in look situation c sum perins specificatis quod  recovery prd per prfat andream Windsor c versus prfat pet vavasor armor bearer  in form prd habila to be ad the same use in prd barra prd Edward Favasor  superius specificat modus form prout idem Edward in barra set prd superius  allegavi therefore to look at closely be quod prd Thomas Dowman Elizeabetha  nothing to take in hand per breve suum prd send to be in pity pro falsely  warcry his quod predicti to ward off to go ind without die after the say  resolution in the court of ware Dowman not satisfy with it bring the say writ  of assize after the death of sir James dyer chief justice of the common plea  who be a judge of profound knowledge and judgement in the law of the land and  especial in the form of good plead and the true entry of judgement c and of a  great piety and sincerity who from his heart abhor all corruption and deceit  of a bountiful and generous disposition and a coke a patron and encourager of  man learned in the law and expert clerk of singular diligence and observation  as appear by his book of report all write with his own hand and of a handsome  reverend and venerable countenance and personage and accord to the say  difference it be resolve mich Elizabeth by the two chief justice Popham and  Anderson and by periam chief baron and gawdy justice in thecase of John  Littleton Esq d which be refer to they by the command of queen Elizabeth and  so it be resolve by all the justice of the common plea boundary mich year  James king upon evidence to a jury at bar in the case of sir Richard  champernon who claim the whole inheritance of Charles late earl of Devon that  indenture subsequent be sufficient to direct the use of a fine precedent  against the earl and his heir for the reason and cause and with the caution  aforesaid