Stan. Plea Cor. lib. 3. cap. 7. And this Tryal in some Cases per medietatem It s Antiquity linguae was before the Conquest as appears by Lamb. fol. 91 3. Viri duodeni Jure consulti Angliae sex Walliae totidem Anglis Wallis Jus dicanto And of ancient time it was called Duâ—decim virale Judicium 1 Inst 155. But afterwards this Law became universal first by the Statute of 27 Ed. 3. cap. 8. It was Enacted that in Pleas before the Maior of the Staple if both parties were strangers the Tryal should be by strangers But if one party was a stranger and the other a Denizen then the Tryal should be per medietatem linguae But this Statute extended but to a narrow Compass to wit only where both parties were Merchants or Ministers of the Staple and in Pleas before the Maior of the Staple But afterwards in 28th Year of the same Kings Reign cap. 13. It was Enacted That in all manner of Enquests and Proofs which be to be taken or made amongst Aliens and Denizens be they Merchants or other as well before the Maior of the Staple as before any other Justices or Ministers although the King be party The one half of the Enquest or Proof shall be Denizens and the other half Aliens if so many Aliens and Foreigners be in the Town or place where such Enquest or Proof is to be taken that be not parties nor with the parties in Contracts Pleas or other Quarrels whereof such Enquest or Proof ought to be taken And if there be not so many Aliens then shall there be put in such Enquests or Proofs as many Aliens as shall be found in the same Towns or places which be not thereto parties nor with the parties as aforesaid is said and the Remnant of Denizens which be good men and not suspitious to the one party nor to the other So that this is the Statute which makes King the Law universal concerning the medietatem linguae for though the King be party yet the Alien may have this Tryal And it matters not whether the Moyety of Aliens be of the same Country as the Alien party to the Action is for he may be a Portugal and they Spaniards c. because the Stat. speaks generally of Aliens See Dyer 144. And the form of the Venire facias in this Venire facias per medietatem linguae Case is De vicenet c. Quorum una medietas sit de Indigenis altera medietas sit de alienigenis natis c. And the Sheriff ought to return 12 Aliens and 12 Denizens one by the other with addition which of them are Aliens and so they are to be sworn But if this Order be not observed it is holpen as a mis-return by the Statutes of 18 Eliz. Cro. 3. part 818. 841. So that Brooks says it is not proper to call it a Tryal per medietatem lâ—nguae because any Aliens of any tongue may serve But under his favour I think it proper enough For people are distinguished by their Language and Medietas Linguae is as much as to say half English and half of another tongue or Country whatsoever Though it be not material of what sufficiency the Jurors are yet the form of the Venire facias shall not be altered but the Clause of Quorum quilibet habeat 4 l. c. shall be in Cro. 3. part 481. But suppose that both parties be Aliens of whom shall the Inquest be then It is resolved that the Inquest shall be all English for though the English may be supposed to favour themselves more than strangers yet when both parties are Aliens it will be presumed they favour both alike and so indifferent 21 H. 6. 4. but if the Plea be before the Maior of the Staple and both parties Alien Merchants of the Staple it shall be tryed by all Aliâ—ns Stamford's Pleas del Corone 159. A Scotchman is a Subject and shall not have this Tryal Egyptians are also excluded when tryed for Felony made by the Statute against them 1 Phil. Mar. cap. 4. 5 Eliz. cap. 20. Where an Alien is party yet if the All English Tryal be by all English it is not erroneous because it is at his peril if he will slip his time and not make use of the advantage which the Law giveth him when he should Dyer 28. The Alien ought to pray a Venire facâ—as When the Alien should pray a Venire facias per medietatem per medietatem linguae at the time of the awarding the Venire facias But if he doth it at any time before a general Venire facias be returned and filed the Court may grant him a Venire facias de novo Dyer 144. 21 H. 7. 32. though it hath been questioned But if he hath a general Venire facias he Tales cannot pray a Decem tales c. per medietatem linguae upon this because the Tales ought to persue the Venire facias 3 E. 4. 11 12. And so if the Venire facias be per medietatem linguae the Tales ought to be per medietatem Tales linguae as if 6 Denizens and 5 Aliens appear of the principal Iury the Plaintiff may have a Tales per medietatem linguae li. 10. 104. But if in this case the Tales be general de circumstantibus it hath béen held good enough for there being no exception taken by the Defendant upon the awarding thereof it shall be intended well awarded Cro. 3. part 818. 841. If the Ylaintiff or Defendant be Executor or Administrator c. though he be an Alien yet the Tryal shall be by English because he sueth in aut droit but if it be averred Where the Tryal of an Aliens cause shall be by English that the Testator or intestate was an Alien then it shall be per medietat linguae Cro. 3. part 275. Mich. 40. 41 Eliz. The Quéens Attorney Part English and part Aliens exhibited an Information against Barre and divers other Merchants some whereof were English and some Aliens After Issue the Aliens prayed a Tryal per mâ—dietat linguae But all the Iustices of England resolved that the Tryal should be by all English and likened it to the case of priviledge where one of the Defendants demands priviledge and the Court as to his Companion cannot hold Plea there he shall be ousted of his priviledge sic hic More 557. By the Statute of 8 H. 6. cap. 29. 29. Challenge Insufficiency or want of Fréehold is no cause of Challenge to Aliens who are impannelled with the English notwithstanding Stamford's Opinion Pl. Coron 160 for this Statute saith that the Stat. 2 H. 5. 3. shall extend only to Enquests betwixt Denizen and Denizen If the Defendant do not inform the Court When the Alien should pray a Venire facias per medietatem that he is an Alien upon awarding of the Venire facias and so yray a Venire facias
sufficien in lege existunt tam ad manutenend proband exit pred pro parte dicti A. F. superius ad patriam junct quam ad excludend Domin Regem de aliqua forisfactura bonor pred habend Ad quas pred Attorn Domini Regis pro ipso Domino Rege minus sufficienter respondit nec aliquod pro ipso Rege allegavit unde idem A. pet judicium ac quod pred bona in dicta informatione spec ei reliberentur quodque ipse quoad premissa ab hac Curia dimittatur Ideo ad judicium Note In this Case the agreement according to the Statute was put in Issue generally and yet the special agreement maintained the Issue And wheresoever the Evidence doâ—h not warrant prove Regula and maintain the vâ—ny same thing that is in Issue that Evidence is defective and may be Demurred upon Upon non est factum to a Bond dated at York It Non â—st factum was said in this case that to prove the Bond made in another place doth not prove the Bond nor Warrant the Issue because the delivery is intended to be where the Dare is but the Witnesses prove the contrary and so the Issue is not proved But surely if this be found the Plaintiff shall have Judgment as well as upon a Bond delivered before the date 31 H. 6. Plo. 7. Rolls 677. But infancy or made by Dures cannot be given in evidence upon non est factum lib. 5. Whelpdales Case 119. because thereby the Bond is not void but only voidable Otherwise of the Bond of a Feme Covert or Monk for there the Bond is void and so non est factum and so of a Bond made to a Feme Covert and the Husband disagree to it or by Husband and Feme Non est factum of the Wife In an Assise if the Tenant plead Nul tort nul disseisin he cannot give in evidence a release after the disseisin but a release before the Disseisin he may for Release then there is no Disseisin upon the matter In a Writ of Right if the Tenant joyn the Mise Warranty upon the meer Right he cannot give in evidence a Collateral Warranty for he hath not any right by it and therefore it ought to have been pleaded 1. Inst 283. Regularly whatsoever is done by force of a Warrant or Authority ought to be pleaded Regula But Note in all Cases where one cannot have advantage of the special matter by way of Plea there he may have advantage of it in evidence as for example The rule of Law is That one cannot justifie the Death or Killing of a man and therefore if one kill another in his own defence he cannot plead this specially but he may give it in evidence and so in defence of his House against Thieves and Robbers c. By the Statute 23 H. 8. cap. 5. any thing done by Sewers the authority of the Commission of Sewers may be given in evidence upon the general Issue After taking the General Issue the Defendant cannot give in evidence any thing that goes in discharge Regula of the Action as in Debt upon nil Debet he cannot give in evidence a Release nor a grant to cut Trees Release to repair upon nul wast fait nor making of a Ditch to amend the Meadow but that he only lopped the Wast Trees he may if wast be Assigned in succidendo Arbores c. Neither if a Statute was made that all Statute Tenants for life should be dispunishable of wast could he give in evidence this Statute 28 H. 8. Dyer 28. for the discharge ought to be pleaded because it admits a Cause of Action without it In Debt against Executors and Assets inter marus Assets in Issue 'T is good evidence that they sold Land by the Will of the Testator c. and that they had the money And so that they recovered Damages in Trespass for goods taken in the life of the Testator c. 3 H. 6. 3. In an Issue upon Villenage regardant to a Mannor Villenage a Villain in gross is no evidence Dyer 48. In wast by the Grantee of a Reversion by Montague Attornment and Fitz. The Lessee may plead that he in reversion ne grant a pas per le fait and give in evidence that he never attorned or he may Traverse the Attornment at his election Dyer 31. In Trespass Quare clausum fregit the Defendant Trespass says that locus in quo c. is 6 Acres in D. which is his Freehold the Plaintiff replies that it is his Freehold and not the Defendants The Defendant cannot give in evidence other 6. Acres in D. which are his Freehold because the plea shall be intended to refer to the 6 Acres of the Plaintiffs Dyer 23. In Rescous by the Lord upon not guilty the Rescous Defendant shall not give in evidence that he doth not hold by Vavasour and Bryan and so if he said nothing is behind in avowry he shall not give in evidence that he doth not hold of him T. 9 H. 7. 3. Avowry In Assise Feoffment pleaded the Plaintiff said he Feoffment did not enfeoff modo forma upon the Deed and Letter of Attorney to Infeoff upon condition found if the Attorny made it without condition this well proves the Issue for the Plaintiff 13 E. 4. 4. If one plead a Feoffment of a Jointment to his Companion or of a Feme Covert the other may say ne enfeoffa pas and give the matter in evidence and the Court shall instruct the Jury of the Law 18 E. 4. 29. Upon the general Issue any thing may be given in evidence Regula which proves the Plaintiff had no cause of Action Trespass by the Warden of the Fleet upon not Trespass Guilty you may give in evidence that he is not Warden 4 E. 4. 7. So in Trespass of a House that he had no house there or the Freehold of another and not of the Plaintiff is good evidence upon not Guilty but in Trespass of Goods 't is no good Plea to say the property was in another although it is in a Replevin and therefore it seems to be no good evidence in Trespass because possession maintains the Action against all but the owner but that the property was in a stranger and he gave them to the Defendant is good See before cap. Evidence 27 H. 8. 25. But in Trover Trover that they were not the Goods of the Plaintiff is good evidence 5 H. 7. 3. Cessavit 〈◊〉 Count that of diverse Lands held by Cessavit entire service upon non tenuit modo forma held by several services is good evidence for he had no such cause of Action 10 H. 7. 24. Upon the general Issue for the Defendant by evidence to Regula convey to himself the same Interest and Title â— good evidence As in Trespass of Goshauks Not Guilty
that the Sow was with Pigg when she was taken and afterwards cast her Piggs in the Custody of the defendant and the Plaintiff recovered Damages for says Bro. Aridg tit General Issue 88. This is a special taking in Law Dower of rent Hill ne unque seisie que Dower la poit Dower Horton J S. granted the rent to the Husband payable at Michaelmas next and the Husband dyed before the day and so he was seised in Law and demanded judgment Thirm You shall say generally quod seisie que Dower la poit and give your Case in evidence Et sic bene notwithstanding the doubt of the lay Gents for they ought to credit the Law and evidence is not to be pleaded 11 H. 4. 88. Tenant for life leaseth for years who is ousted and the Tenant for life is disseised The disseisor leaseth for years who sows the Land The Tenant for Life dies he in remainder in Fee brings Trespass against the Defendants claiming the Emblements Emblements Knivets Case lib. 5. 85. by the Lessee of the Disseisor Adjudged that they had not the meer right but in respect of their possession they should barr the Plaintiff who had no right and that the meer right was in the Lessee of the Tenant for Life and that he might bring Trespass against the Lessee of the Disseisor and recover all the mean profits But as to the entry into the Land to take the Emblements this was good matter of justificaâ—ion but in regard it was not pleaded it could not be given in evidence upon Not Guilty and therefore the Plaintiff had judgment for the entry and was barred for the residue Note that the Lessee of Tenant for Life had right to the Land and by consequence to the Emblements as things annexed to the Land and the death of the Tenant for Life determins his interest to the Land but his right to the Emblements remains It sufficeth to prove the substance without any precise Regula Substance Circumstance regard to the Circumstance As if an Indictment be that with a Dagger the offender gave another a mortal wound c. and in evidence it is proved to be done with a Sword Rapier Club Bill or any other Weapon the offender upon this evidence ought to be found guilty For the mortal wound is the substance and the manner of the Weapon is but the Circumstance yet some Weapon ought to be mentioned in the Indictment And so if A. B. and C. be indicted for killing of J. S. and that A. stroke and the other were Abettors To prove that B. stroke is sufficient c. Manslaughter upon an Indictment must be found if proved because the killing is substance upon which judgment shall be given Indictments for â—urther of Ministers of Justice in execution of their Office may be general viz. that the prisoners felonice voluntarie ex malitia sua praecogitata c. percusserunt c. without alledging the special matter which may be given in evidence for the Law implyes malice prepensed So if a Thief in robbing kills the man that resists him or a man is killed without any provocation or without malice prepensed that can be actually proved the Law adjudges this murder and implyes the malice and in these Cases the offenders may be indicted generally that they killed of malice prepense for the malice implyed by Law given in evidence is sufficient to maintain the general Indictment lib. 9. 67. Machallyes Case So of an Indictment as accessary to 2. to prove accessary to 1. is sufficient lib. 9. 119. In Cromwels Case lib. 4. 12. Although it was objected that in an Action of slander If the Defendant will justifie he must justifie the same words in the same sense as it is laid in the Nar. or else he must plead Not Guilty and give the special matter that is the variance in evidence Yet the Court held that the Defendant should not be put to the general Issue but might justifie although he varied from the Plaintiff in the sense and Copyhold In Pilkintons Case Stiles 450. Rolls said If Copies of Court Roll be shewed to prove a Customary Estate the enjoyment of such Estates must also be proved otherwise the proof is not good Forger Totum pars quality of the words and might set forth the coherent words As for calling the Plaintiff Murderer the Defendant may shew that they were speaking of Hares and the words were spoken in reference to killing of Hares Upon the Issue if the Lord of the Mannor granted the Lands per copiam rotulorum Curiae manerii pred secundum consuetudinem manerii pred To prove that there were customary Lands in the Mannor and that the Lord of late granted the Land c. per Copiam rotul Curiae where it was never granted by Copy before is no good evidence to find the Custom or that the Lands c. were grantable or demiseable by Custom Leon. 55. Kemp and Carters Case Forger of a Deed in which is contained a demise of the site of the Mannor of R. and terras dominicales c. A Deed of the site and all the Demesnes of the said Mannor Exceptis duabus clausuris c. is good evidence for it is not necessary to construe terras dominicales c. omnes terras dominicales c. for Lands not excepted are terrae dominicales and so the Count is satisfied by that evidence Leon 139. Atkins and Hales Case Debt against an Executor upon plene administravit it appeared that the Executor medled and administred Plene administravit and then refused in Court and administration was granted to another and that several summs were recovered against the Administrator it was said by Periam Justice 1. That if an Administrator who is a stranger administer without the Commandment of the Executor the Executor cannot give such administration in evidence to prove his Issue 2. That in the principal Case the Executor having administred he could not refuse and so the administration is granted without cause and what he did was without warrant and no administration Ieon 134. Hawkins and Lawse Case At Bury Assises 1682. before Judge Windham The Executor gave the administration of the Administrator in evidence and allowed but there what the Administrator did was by the Executors consent in Mr. Lun and his Mothers Case An Executor de son tort cannot give in evidence Plene administravit An Executor pleads plene administravit praeter a judgment replication and Issue that the judgment was fraudulent The Obligee who had the judgment was denyed to have evidence about his Debt for he sweareth to have Assets for himself and is interested in the thing Before Judge Windham at Bedford Assises 1682. his retaining of goods to pay himself for he cannot retain but if he takes out letters of Administration although pendente lite he may retain for a Debt of as high a Nature and plead this in Barr for
at Common Law and Tales by the Statute the first called only Tales the second Tales de circumstanubus the last of which can't be granted at a Tryal at Bar which is a Tryal at Common Law for there it must be only Tales by Writ annexed to the Venire facias But Tales de circumstan tibus is given by Statute to Tryals by Assise and Nisi prius per Stat. 35 H. 8. 6. Yet such a Tales to an indictment in Wales was out of that Statute and helped by 4 5 Ph. Mar. 7. If the Issue be to be tryed per two Counties and one full Inquest appear of one Tales in what Cases it shall be granted County but the Inquest remain for default of Jurors of the other County A Tales shall be awarded to the County where the de fault is not to the other If a Juror die after he is Impannelled a Tales shall issue not a Venire facias Vpon a Pluries Distringas three only appear What persons may have a Tales the Plaintiff prays another Distringas without praying a Tales yet if the Defendant pray a Tales the Court ought to grant it D. 20 El. 359. 2. A Tales shall be granted in an Attaint if In what Cases all the Grand Jury make default It cannot be granted at the day of the At what time return of the Venire facias If the Venire facias be good and the Hab. Corpus ill if the Pannel be affirmed yet the Tales is void for in effect there is only a Venire facias returned and then no Tales If the Defendant hath a Hab. Corpus Tales with a Proviso with a Proviso yet the Tales ought not to be granted with a Proviso at the Defendants request before a default in the request of a Tales in the Plaintiff At Common Law before the Statute by Custom of a Court a Tales de circumstantibus might be granted for this is a good Custom Dubitatur Rolls tit Tryal 672. If great persons are concerned and by Tales denyed their labouring the Jury doth not appear and Tales men are prepared for their turn and there is a great tumult de circumstantibus The Justices of their discretion may deny a Tales and adjourn in Bank notwithstanding the Statute The principal Pannel must stand or else there can be no Tales If the Bayliff of the Franchise answer that there be not sufficient of his Bayliwick the Justices may award a Tales de circumstantibus to be returned by the Sheriff If the Tenant for life pray in aid of the King who hath the reversion the Justices cannot grant a Tales de circumstantibus because the King is concerned If two Coroners or Esliers return the Pannel one of them cannot return the Tales c. If the Defendant sue the Writ of Nisi prius by Proviso yet the Plaintiff may have a â—ales c. The Sheriff may return 24. 40. or any number upon the Tales de circumstantibus And it may be prayed by Attorney although Attorney the Statute doth not mention an Attorney as well as in proper person The Vouchee in a praecipe quod reddat may pray a Tales though he be neither Plaintiff nor demandant in the first action If there be three Plaintiffs in Replevin c. and one of them makes default at the Nisi prius the other two cannot pray a Tales otherwise of two Coparceners Mayor and Commonalty in their proper persons cannot pray a Tales A Bishop or Abbot may Two Plaintiffs in Trespass and at the Nisi prius the Defendant shews a Record to the Court by which it appears that one of the Plaintiffs was Outlawed after the last continuance the other cannot pray a Tales The Sheriffs upon the Tales de circumstantibus may Impannel a Priest or Deacon if he hath sufficient freehold of Lay Fee but not an Infant nor one of the age of 80 years He may Impannel Coroners Capital What persons of the Tales Ministers of any Corporation Foresters men blind mute if they have their understanding but not Deaf men Excommunicated persons but not Outlawed or attaint not Aliens nor Clerks attainted nor persons attainted of false Verdicts The Coroners may put the Sheriff on the Tales It seems by the Statute none of the Challenge parties can challenge the Array of the Tales but only to the Poll. After a challenge to the Poll tryed there shall be no other challenge to the same Poll for any cause or matter that is at the same time In an action of Trespass for taking away the Plaintiffs money one of the Tales was challenged because he was a common Fosterer of Thieves and dwelt in a suspicious place and of ill fame and held a good challenge For Challenges see the Tit. Challenge at large What issues shall be tryed by Tales de circumstantibus see Williams his reading hic cap. 7. But â— since none can come after the Reporter observe with me his Nota Lecteur in his 10th Report 104. That at Common Law in the granting of a Tales five things are to be considered 1. The time of the granting c. thereof 2. The number of the Tales 3. The order of them 4. The manner of Tryal that is where by them with others and where by them only 5. The quality of them is to be considered As to the first 4 things are likewise to be considered 1. That the time of granting them is upon default of so many of the principal Pannel that there cannot be a full Inquest 2. That at the time of granting them the principal Array stand for Tales are words similitudinary and have reference to the assemblance which then ought to be in esse and therefore if the Array be quashed or all the Polls challenged and treited no Tales shall be awarded for then there are not Quales but in such a Case a new Venire facias shall be awarded But if at the time of granting the Tales the principal Pannel stand and afterwards is quashed as aforesaid yet the Tales shall stand For it sufficeth if there were Quales at the time of granting the Tales 3. It is to be observed that he which is meerly Defendant cannot pray a Tales till the Plaintiff hath made default 4. In some Cases a Tales shall be granted after a full Jury appear and is sworn as if a Jury be charged and afterwards before a Verdict given in Court one of them die a Tales shall be awarded and no new Venire facias and so if any of the Jurors Impannelled die before they appear and this appears by the Sheriffs return the Pannel shall not abate but if there be need a Tales shall be awarded And the time for Challenge and Tryal of the Tales is after the principal Pannel be tryed and if the principal Pannel be affirmed the same Tryors shall try the Tales But if it be quashed then the two Tryers of the Principal shall not try the Tales As to the second
Elegit and of Hab. Corp. from a Mayor c. But if the retorn is not definitive as upon a Rescous c. an averment doth ly and upon this it may go to Tryal So if it be a return to indanger a mans Life or his Inheritance an averment may be had against it Dyer 348. 177. So it lyeth against the returns of Bayliffs of Franchises so that the Lords be not prejudiced in their Franchises thereby Goldsb 139. 129. pl. 23. An action for a false return an averment doth ly against the Sheriff return Winch 100. and so it doth Upon or against a Will or Administration it lyeth although they be under Seal of the Court. in any other action than in that the retorn was in Any averment may be upon a Will or any part of it that may help to expound it and of such a thing that may stand with the Will and may be collected out of the words As which Son he meant c. lib. 8. 31. 41. But no averment against or besides that which is expressed in the Will or which cannot be gathered to be the mind from the words nor of any thing that doth not cohere with the Will especially if it be about Lands As in the Lord Cheyneys Case lib. 5. 68. A devise to A. and the Heirs of his body the remainder to B. and the Heirs Males of his Body on condition that he or they or any of them shall not align c. no averment shall be taken to prove by Witnesses or other evidence that the Devisor intended to include A. within this condition by the words â—e or they for the construction of Wills ought to be collected out of the words of the Will in wriing and not by any averment or proof out of it It lyes against the Rolls or Records of County Against Court Rolls or upon them Courts Hundred Courts Courts Baron As that there is no such Record or it is not as it is certified 34 H. 6. 42. 9 E. 4. 4. No Averment or proof is to be admitted against Against common presumption or reason common presumption as that there was more Rent behind when the acquittance of the last Rent was made 1. Inst 373. Nor against common reason as that Land doth belong to Land or to a messuage Plo. 170. lib. 437. If the matter contained in an award and the matter Upon an award in the submission do not agree it will hardly be supplied by an averment Dyer 242. 52. If the Defeasance of a Recognisance be dated before Date the Recognisance it may be averred to be delivered at or before the time of the Recog entred into Perkins Case 147. Things apparent or necessarily intendable by Law need not be averred manifesta non probatione indigent Quod constat clare non debet verificari lib. 11. 25. Plo. 8. Chief Justice Anderson held Godbolt 131. that if Devise one devise Lands to the Heirs of J. S. and the Clerk writes it to J. S. and his Heir that the same may be holpen by averment because the intent of the Devisor is written and more and it shall be naught for that which was against his Will and good for the residue But if a Devise be to J. S. and his Heirs and it is written but to the Heirs of J. S. there an averment shall not make it good to J. S. because it is not in writing which the Law requires And so an averment to take away any surplusage is good but not to increase that which is defective in the Will of the Testator But with submission if the Law should admit of such averments it would be as mischievous one way as the other and no man could know by the words of the Will what construction to make nor what advice to give but this shall be controlled by collateral averments out of the Will and instead of proving the Testators Will it would be the destroying of it If the partition be by Writ although it be unequal Partition yet it shall not be avoided by averment but shall bind the Feme Coverts And such averment against the retorn of the Sheriff shall not be good 1. Inst 171. A valuable consideration in a Bargain and Sale Consideration not expressed may be averred 2. Inst 672. A consideration which consists with the Deed and not repugnant may be averred as in a Bargain and Sale if a particular consideration be expressed and the general clause of other good causes and considerations or without that general clause yet other considerations may be shewed so if the particular consideration be love and affection yet payment of money may be shewed so a precedent intent of uses and Uses to levy a fine may be shewed to guide the use of the fine Rolls tit uses 790. As if I covenant by Deed to purchase Land and then to levy a fine or make a Feoffment thereof to the use of another and afterwards purchase and levy a fine or make a Feoffment this use shall rise For the Deed is an evidence of the precedent intent and the uses of a fine or Feoffment may be directed by the precedent intent and yet such intent is countermandable But a covenant to purchase and stand seised of Lands to uses shall not raise the use after the purchase because the use is to rise by the Deed and at the time when the Deed was made there was no Estate in the Land ibidem So if one joyntenant covenant to stand seised of his Companions part if he survive yet no use shall rise if he did survive because at the time of the Covenant he could not grant nor charge the Land ibid. 'T is true that a fine sur grant and render unless it Fine sur grant and render use be in special cases cannot be averred by parol to be to any other use or intent than what is expressed in the fine Feoffment or other conveyance But there is a diversity betwixt a use and consideration for when a fine Feoffment or other conveyance import an express consideration a man may aver by word another consideration which may stand with the consideration expressed but the parties cannot by parol aver any other use than is contained in the same coveyance Also no averment shall be against the consideration expressed But yet in some cases a fine Sur grant and render may be ruled and directed in part by averment per parol and this is when the original Bargain and Contract betwixt the parties is by Indenture or other Deed As where it is agreed by Indenture that a Fine shall be levyed of certain Lands by the name of a certain number of Acres to divers persons and that they shall grant and render the Land again in fee simple which shall be to certain uses the Fine is levyed of the Land but there is some variance betwixt the number of Acres comprised in the Fine or the Fine is levyed