Gunning against Gunning
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1794 |
| Date | 01 January 1794 |
| Court | Court of the King's Bench |
English Reports Citation: 89 E.R. 759
IN THE COURTS OF KING'S BENCH
case 4. gunning against gunning. A declaration in waste that the defendant ploughed up the land which was pasture, et sic facit vastum, is bad, for uncertainty, even after verdict.-2 Roll. Abr. 816. Co. Lit. 53. 1 Lev. 309. 1 Mod. 94. 3 Mod. 90, 113. 2 Saund. 254, 255. 1 Ch. Rep. 106, 116. Waste. The defendant pleaded " no waste committed modo et forma front, &c." The jury find he did modo et forma as in the count. Moved in arrest of judgment, that the plaintiff in his declaration does not so much as alledge a waste done, but leaves it absolutely uncertain ; for he says, that the defendant did plough up his land which was pasturable, et sic vastum fecit, and so nan constat to the Court that it was waste; and the verdict does not help it, for that only says they did it modo et forma prout in narrations: now the ploughing pasture, may be, or may not be waste; and to make it such, it ought to have been pasture time out of mind, and it is not enough to say that this was pasture ground diu ante. Jones Justice said, Arable and pasture ground are convertible, and that which is one of them this year, may be the other the next, and the law does not so much distinguish. And therefore judgment was stayed (a). (a) The Court, in the Trinity term following, was of opinion that Edward had only an estate for life; for there was an express limitation to him for life, arid an estate tail limited to each of the sons; and judgment was accordingly given for the plaintiff. S. C. T. Jones, 115. S. C. 1 Freem. 462. The defendant brought a writ of error, and upon the first argument the Court of Exchequer inclined to affirm the judgment; (sed vide S. C. Raym. 278, 302, 315) but before it was affirmed or reversed, the suit abated by death. S. C. 2 Lev. 225. It is said however that a new ejectment was brought, S. C. 2 Lev. 225, arid that judgment for the plaintiff was affirmed on error in the Exchequer Chamber, by the opinion of the greater part of the Judges and Barons, S. G. Pollexfen, 591; and in a marginal note to the case of Hodgson v. Bussey, it is said, that on search made by Mr. Justice Tracy, this affirmation of the judgment fof the plaintiff is entered on the record, 2 Atk. 90. (a) After verdict nothing is to be presumed but what it either expressly stated in the declaration or necessarily implied from those facts, which are stated, Spires v. Parker, 1 Term Rep. 141 ; for a...
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