the sufficiency of the particular would have been before the Court; and, if at all doubtful, the Defendants would have been let in to try. But, taking the other way, were a Plaintiff to be shut out by a strict construction, he might be concluded by a particular fairly meant, but doubtfully worded, against the justice of his case. At any rate, there can be no mistake, nor any surprise on the Defendants in future; as, what has passed, and is now passing, will operate as the fullest notice how the bills are to be applied. I have said this much in a case that would not have required it, if there had not been a difference of assertion, with respect to facts, at the bar; and, therefore, with a view to a future trial, it is important that the parties should clearly know what is understood to have passed on the former occasion, and on what ground a new trial is now granted. 1821. DUNCAN ข. HILL. Rule absolute. COLLYER V. MASON. THIS June 4. A. was seised of an estate for life; remainder to his sons, B., C., D. and E., in tail, in such shares and proportions as A. should appoint by will. B., C. and D., conveyed the entirety of the premises to make a tenant to the præcipe, so that one or more recoveries should be suffered, in which A., B., C., D. and E. should be vouchees, for the purpose of barring all estates tail: a recovery was then suffered, in which B. and C. were vouched. In 1809, A., B., C., D., and E. conveyed all the premises to make a tenant to the præcipe, in a recovery which was suffered in 1810, in which E. was vouched; and, in 1811, a recovery was suffered, in which D. was vouched. Held, that by these conveyances and recoveries the estates tail in B., C., D., and E. were well barred. 1821. COLLYER V. MASON. tings after last Michaelmas term, at Westminster, before Dallas C. J., when a verdict was found for the Plaintiff, subject to the opinion of the Court, on a case in substance as follows. Devise to Daniel Collyer for life, remainder to trustees to preserve, &c.; remainder to the son and sons of Daniel Collyer, lawfully to be begotten, in such shares and proportions as he should appoint by will, and the heirs of their respective bodies; remainder to the daughters of Daniel Collyer, as tenants in common in tail; remainder to Charles Collyer, for life, with divers remainders over. The devisor died, leaving Daniel and Charles Collyer him surviving. Daniel had issue four sons, Daniel, John Bedingfield, William, and George. By indentures of lease and release, of 9th and 10th of February, 1807, Daniel the elder, Daniel the younger, John B., and William, for the purpose of barring all estates tail, conveyed the entirety of the premises to George Kinderley, as tenant to the præcipe, so that one or more common recovery or recoveries thereof should be suffered, in which George Kinderley should be tenant, William Domville demandant, and Daniel Collyer the elder, Danicl the younger, John B., William and George, should be vouchees, who should vouch over the common vouchce; and then followed a declaration of the uses of the recovery. A recovery of the entirety of the premises was suffered, according to the above deeds, in Hilary term, 47 Geo. 3., in which Domville was demandant, Kinderley tenant, and Daniel Collyer the younger, and John B., vouchees. By indentures of lease and release, of the 3d and 4th November, 1809, Daniel Collyer the elder, Daniel the younger, John B., William, and George, for barring all estates tail, and for extinguishing the power of appointment vested in Daniel Collyer the elder, did, according to their respective estates and interests, convey to George Kinderley, all the pre mises that he might become tenant to the præcipe in one or more recoveries in which the said George Kinderley should be tenant, William Domville demandant, Daniel Collyer the younger, John B., William and George, vouchers, who should vouch the common vouchee, which recovery should enure to the same uses and purposes as were set forth in the deeds of 1807. In pursuance of these latter deeds, a recovery was suffered in Hilary term 50 Geo. 3., in which Domville was demandant, Kinderley tenant, and George Collyer vouchee, who vouched the common vouchee, of the entirety of the premises comprised in the recovery of Hilary term, 47 Geo. 3. A recovery was also suffered in Michaelmas term, 51 Geo. 3., in which Domville was demandant, Kinderley tenant, and William Collyer vouchee, who vouched the common vouchee, of the entirety of the premises comprised in the recovery of Hilary, 47 Geo. 3. Daniel Collyer died without executing the power of appointment limited to him by the will. The question for the opinion of the Court was, whether, by the several deeds of the 9th and 10th February, 1807, and the 3d and 4th November, 1809, and the recoveries suffered in Hilary term, 47 Geo. 3., Hilary term, 50 Geo. 3, and Michaelmas term, 51 Geo. 3., the estates tail of the four sons of Daniel Collyer, the devisee for life, and the remainders over created by that will, were effectually barred. If the Court should be of opinion that they were so barred, then the verdict found for the Plaintiff was to stand; but if the Court should be of opinion that they were not effectually barred, a verdict was to be entered for the Defendant. The case was argued on a former day in this term. Bosanquet Serjt. the entirety of the The objection to this title is, that estate in question having passed out 3 B 3 of 1821. COLLYER ข. MASON. 1821. COLLYER V. MASON. of the tenant to the præcipe by the two first recoveries, (a) 5 T.R. 112. (f) a Rep. 69. Lens Lens Serjt. contrà. The principles laid down and the cases cited on the other side, may all be admitted, but they do not apply to the present case, which is not the case of one conveyance consisting of various parts: but the last recovery is of itself a separate and distinct conveyance, and intended to be so: and then the previous recoveries having prevented the possibility of there being any estate in the last tenant to the præcipe, this is an ineffectual attempt to complete what was intended. The doctrine that a recovery can affect only the estates of those who are vouched, may apply where several parties have each a separate fractional interest, but that is not the case here. (Seymor's case (a) was cited.) Bosanquet, in reply, contended, that the doctrine plied equally to the present case. ap The objection to the title, DALLAS C. J. This was an action of assumpsit, brought upon a contract for sale of an estate, which was defended on the ground of a defect in the Plaintiff's title. On the trial, a verdict was found for the Plaintiff, subject to a special case. (Here his Lordship stated the substance of the case.) which has been insisted upon in the argument on behalf of the Defendant is this: that the recovery last suffered, in which William Collyer was the vouchee, had no operation to bar his interest as tenant in tail; because, it is said, that, at the time when that recovery was suffered, George Kinderly, the tenant to the precipe, had no estate remaining in him; for it is contended, that the whole of the estates which were conveyed to him by the deeds of 1807 and 1809 respectively, were respectively divested and taken out of him by the re 1821. COLLYER V. MASON. |