Page:The English Reports v1 1900.pdf/1202

But the Judges desiring some time, in regard the same, as they alledged, was a question of great importance, they were allowed till the next day, in order to confer together, the better to give their opinions thereon.

Accordingly, on the next day, the Lord Chief Justice of the Court of Common Pleas, in the name of all the Judges who had consulted together, delivered their unanimous opinion, "That the estate for life was vested in Evers Armyne, at the time of the recovery." Then the Judges were directed to give their opinions, "Whether the remainder to Style was of that nature, as to be barred by the recovery?" And having conferred together, the said Lord Chief Justice delivered their joint opinion, "That the same was only a contingent remainder."

Whereupon it was ordered and adjudged, that the decree should be reversed; and that the respondent's bill in the Court of Chancery, as against the appellants, should stand dismissed; without prejudice to the right (if any) of the heirs at law of Sir Michael Armyne, or Evers Armyne. (Ibid. p. 465.)

Note.—[72] Subjoined to the respondent's case is the following answer to the case of Loddington and Kime, as reported in 3 Levinx, 431.

That in drawing the special verdict, the plaintiff's counsel over-reached the defendant's counsel; for the special verdict finds two facts that are absolutely untrue, and units to find one fact that is true, and absolutely material: 1. That the schedule debts being £4600 were all unpaid at Sir Michael's death; which was not true. 2. That the schedule debts of £4600 were paid [73] after Sir Michael's death, and in the lifetime of Evers Armyne, and before he suffered the common recovery; which was not true. 3. The codicil to the will that was made in time after the debt of £4600 was contracted, is not found by the special verdict; though it was true, and absolutely material.

Now those two facts, which are untrue, did very much influence the case; for Levinx reports, that in the argument of the case, the first question was, Whether any estate was vested in Evers Armyne, before the debt of £4000 was paid for if not, then the common recovery suffered by him, and the disposition of the estate by his will, were void: and the report says, that it was resolved by the Judges without any difficulty, that the estate for life was vested in Evers Armyne; because, by several clauses, and by the whole scope of the will, it appears (as the book says) that the debts, which by the provision of the will were appointed to be paid, precedent to the vesting of the estate in Evers Armyne, were the schedule debts, all which were found to be paid before the suffering of the recovery. From this book it is plain, that the Judges were of opinion, that the schedule debts ought to be paid precedent to the vesting of the estate in Evers Armyne; and the special verdict being artfully drawn, the facts that were found made this specious case:—that Sir Michael annexed to his will a schedule of his debts, being £4600, and appointed those debts to be paid before any estate should vest in Evers Armyne; and after his will, contracted a new debt of £4000 by mortgage; upon which did arise this question. Whether the estate should vest upon payment of the first debts, or should not vest till after payment of the new debt of £4000 contracted after the will! And the Judges being so misled by the mistaken special verdict, and in favour of vesting estates, did resolve, that the estate did vest upon payment of the schedule debts.—This resolution is, in effect, in favour of the respondent, in regard these two facts were utterly untrue; for Sir Michael, after his will, contracted this new debt of £4000, and with it, and with the money raised by the sale of Orton and Butolph-Bridge, did pay all the schedule debts in his lifetime; and left no debt unpaid at his death, but only the £4000 contracted after his will, to pay the schedule debts.—This fact is fully put in issue in this cause; for the respondent, by his bill, has positively charged it as a most material part of his case; and the appellants, in their answers, have, in effect, admitted, that the schedule debts were paid in Sir Michael's lifetime, and that the new debt of £4000 was contracted for that purpose, and have made their defence by arguments from that fact, as taken to be true. But the respondent has fully proved that fact, viz. that the schedule debts were paid in Sir Michael's lifetime, with the very £4000 borrowed of Lady Holles, and with the monies raised by the sale of Orton, etc. And the appellants have not so much as attempted to disprove it.

But the fullest answer of all is, that the special verdict has not found a most material part of the ease; for it has not found the codicil which was made after the