case lord altham against lord anglesea if a tenant in tail with remainder in  tail levy a fine sur conusance c to a b and his heir in order to make he  tenant to the prcipe without declare the use of the fine the freehold vest in  a b and therefore if a writ of entry be bring against he and be vouch the  cognizor of the fine the common recovery thus modern report er p suffer be  good and note deposition take in Ireland may be read on a trial in England to  prove the record S c pale yellow Rep S c salk S c holt this be a issue direct  out of chancery to try the validity of James late earl of anglesea will the  case be this James Lord anglesea tenant in tail of land in Ireland levy a fine  and the next term follow suffer a common recovery wherein the conusee be make  tenant to the prcipe and the tenant in tail come in as vouchee it be find that  there be no deed or other write between the levy of the fine and suffer the  recovery to lead the use of the fine but the tenant in tail suppose himself  seize in fee by the recovery devise the land in question to the plaintiff  there be two point argue which be save upon the trial first as to the matter  of evidence whether deposition take in Ireland by virtue of a dedimus certify  that the paper send over be true copy of certain fine and recovery suffer  there and witness swear that they be the same and have receive no alteration c  be good evidence second whether there be no deed to lead the use accord to the  statute of fraud and perjury the use result to the conusor or go to the  conusee so as to make a good tenant to the prcipe sir Simon Harcourt and sir  Thomas powys for the defendant argue that the evidence be not good because the  best evidence that can he have must be give and here modern report the may  have send one to have examine these record who may have take copy of they and  have attest they to be true copy viva voice and as to the other point they  argue that the use not be declare in write the fine can not make a tenant to  the prcipe and so the recovery be void for they say a fine without use declare  in write will have no effect but it will result to the conusor in the same  condition it be in before the fine levy and so not cut off the entail sergeant  Hooper the solicitor general and Mr Eyre for the plaintiff argue that the  deposition be good evidence for despositions of one that be sick or can come  may be read and all those through who hand these pass swear they be not alter  as to the second point they say that the intent be plain videlicet only to  make a tenant to the prcipe in order to suffer a common recovery to cut off  the entail to the end that James Lord anglesea may dispose of his estate by  will that it be a question whether use be include in the statute of fraud by  the word trust and confidence that the notion that a use shall result to the  conusor if it be not declare otherwise in write be ground on Inst b but that  it appear by the case of Shortridge v Lampew a mich term Ann salk Mod salk  holt ld raym a and Reynolds v black b will salk b that if a fine be levy it  shall not be esteem of no effect but shall go to the conusee if nothing appear  to the contrary that a fine be like a feoff and be a feoff of record and if a  feoff be make to b of blackacre for a thousand pound it will go to b and not  result that presumption be to be make for the benefit of common recovery be  now become common assurance upon argue this case holt chief justice say that  if a tenant in tail discontinue in fee and a prcipe be bring against one who  be not tenant to the prcipe and the tenant in tail come in as vouchee whereby  he admit the stranger to be tenant to the prcipe this shall estop the tenant  in tail and his heir general but not the issue in tail yet trust and use be  synonymous in the law c suppose a bargain and sale be make to suffer a common  modern report recovery within a year and none be suffer it be to the use of  the bargainer but in this case where the prcipe be bring against the conusee  there be a use arise to he by operation of law modern report er p Powell  justice say he be not so clear as the Lord chief justice but say that a penny  consideration will prevent the result of the use but here be none upon levy  the fine there be a use and where do it vest but in the conusor and how come  it out of he the last day of this term the court give their opinion seriatim  gold justice there be two point in question first whether the deposition of  one who be out of England where no process will fetch he may be read as  evidence to prove the record and I hold it may as also in case one be sick c a  fry v wood atk Benson v oline stram baker v Lord Fairfax stram king v Tilley  salk ld ray Holcroft v smith Eq Abr gosse v Tracey Peer wms haw v hand atk a  second as to the tenant to the prcipe I hold that here be a good tenant to the  prcipe for I do not take it to be within the statute if there be a common  recovery suffer it must be presume that there be a tenant to the prcipe and if  there be none it must be avoid by a writ of error powys justice of the same  opinion as to the first point for the same reason second I hold that if a fine  be levy to a with consideration at this day by a parole averment of the money  be pay it will vest the use in the conusee and so I hold it will be though  within the statute it be certain so before the statute and be so at this day  beside they be but one conveyance you can raise a construction of law in the  middle of a conveyance upon the reason of Dowmans ease b   b the deed may  follow a long time after the fine and in dyer it follow four year after and so  it may be long if there be no act do in the mean time declare the intent to be  otherwise Powell justice as to the first I will have it bring to a certainty  it be better to have witness viva voice where modern report they may be have  but suppose the record be out of the queen dominion or in the west Indies or  in Scotland I take it that a deposition will do in such case c as to the  second point as it be dangerous to avoid such conveyance so it be to break  into the statute though the recovery show the intent yet it be not such a  write as be intend by the statute and the commonlaw will not distinguish  between trust and use neither the conusee nor a stranger can take a use by a  parole averment but here I hold that the conusee do not take by way of use but  at commonlaw but here there must be a parole averment to prevent the result of  the use but such averment will not be admit the fine have its operation  immediate before the recovery so as here must be a parole averment that it be  to the use of the common recovery and this parole averment hinder the result  of the use be out of the statute for it be not to raise a use but to prevent  its result holt chief justice say as to the first point the law require the  best evidence that can be have but we can compel any one to come out of  Ireland nor oblige any one to go and inform himself in order to be a witness  but this rule be to be interpret with respect to the person depose as that a  man affidavit shall not be read when he be here to give his evidence viva  voice but when the person can be bring into court though there be other  witness to give evidence viva voice yet the deposition of those that be absent  may be read be cite cro but say he will not warrant the authority of the case  to the second point be say that this be out of the statute of fraud and  perjury there be two clause in the statute the first be that all declaration  of trust shall be manifest by some write sign by the party or by his last will  in write or else be void the second be that trust result by implication of law  shall be as if this Act have not be make now I hold that since the statute  there must be a parole averment to make the use result modern report for at  commonlaw if a fine be levy it be to the use of the conusee until such  averment when tenant in tail come in as vouchee he admit the conusee tenant to  the prcipe and his meaning be plain that he intend to make himself tenant in  fee not from the modern report er p use that shall result from the conusee but  from that result from the seize of the recoveror a Thrustout v peak stram and  see roe lessee roach widow v Popham and other dougl where Lord Mansfield be  report to have say that the principal case of Altham v anglesea be good law a  therefore no one to speak against judgement for the plaintiff notam in this  case holt chief justice also say that the statute of fraud which enact that  the declaration of trust shall be manifest by some write sign by the party  extend only to the stranger and not to the conusee of the fine for there need  be no wait to declare the use to he therefore it can result without a parole  averment b callard v callard roll Abr b but when a fine be levy and it be to  the use of a stranger then it be within the statute and must be declare in  write