[262]

3 Co. 86. b.

the freehold of the premises, ret. oct. pur. and thereupon a recovery past with the voucher of George Melton, and that the sheriff returned execution, and that by force thereof, Colt and Holland were seised, prout lex postulat. So that first it was found that Melton was seised in possession of the tail general, and so continued till 1 Feb. 45 Eliz. and then granted, bargained, and sold the land, which, by the word of grant, will not pass without livery; neither doth it imply livery as the word 'feoffment' would; and of the bargain and sale there is no enrollment found, neither doth the jury find that they were seised by force of this conveyance.

Curtis cannot be taken to be tenant to the recovery, for either it must be by the special conveyance mentioned, or by the implication tunc tenentem. By the special conveyance it cannot be, because the enrollment is not found; like unto Sir George Brown's case, where it was found that Anthony Bridges levied a fine where it was taken to be without proclamations, though it were otherwise in common intent and practice; for otherwise the jury must find, in this case, that Melton did bargain and sell, but the deed was not enrolled; and so in the other case that the fine was without proclamations, which were against sense, to enforce a jury to find a negative of that that is not presumed except it be found.

Also note, no touch in the verdict that Curtis was seised by force of the bargain and sale; no, not so much as prout lex, &c.

Now for the tunc tenentem, (besides that the court shall not intend, when they found a special means of tenancy, that he was tenant by another mean, especially by a disseisin,) as this verdict is found, it cannot be ; or at least it cannot be effectual.

The writ of entry was brought 23 Jan. 47 Eliz. against Curtis, tunc. tenent. Ret. cra. pur. which was 3 Feb.

Now it is true that if he were tenant either at the time of the writ purchased, or at the return when the recovery passed, it had been sufficient; but by the verdict it is plain that he could not be tenant at the day of the writ

purchased; for Melton continued his possession till 1 Feb., [262 a] and if Curtis should be taken to have disseised Melton, yet since Melton is found seised 1 Febr., there must be a reentry, and so the tenancy lawfully dissolved before the recovery passed.

Now, where it is found that Curtis and Stephenson were tenants of the freehold, at the time of the writ of entry purchased, that appears to the court false; for that was before the bargain and sale, till which time Melton is found to be seised, and no other conveyance found unto them, but by the bargain and sale.

I grant that a verdict may be taken by a reasonable Ant. 54, 55. intendment, as in Fulwood's case, though the words be imperfect. But that must be where that intendment stands upright, and nothing in the verdict to impugn it, as there is in this case, expressly; for there is plain falsity and repugnancy in this verdict; one part saying that Melton continued tenant till 1 Feb., the other part saying that Curtis was tenant 23 Jan., or else by confessing and avoiding that he was tenant 23 Jan., by disseisin, and that Melton reentered and was seised 1 Feb.; for the recovery was not finished till cra. pur., which is 3 Feb.

Also, I agree that where a special verdict concludes their doubt upon some special point, that the court shall doubt of no more, but allow all other points, though there be some defect; as in Goodale's case, Co. lib. 5. fol. 96, where the jury made this doubt; whether the Cr. Car. 22. payment of one hundred pounds, with agreement to have some part of it again, were sufficient upon a condition to defeat the estate of a stranger. The court regarded not that there was no title found for the party that made the entry, whereupon the action was brought.

But here the jury both conclude upon the general, whether the defendant's entry were lawful or no; which is all one as if they had referred to the court their utrum, whether the defendant were guilty or not, which depends upon all parts of the verdict indifferently, that may prove him guilty or not guilty.

[263]

2 Cro. 622.

And it is a dangerous thing to construe a verdict larger, or otherwise than upon a sure ground, for it subjects them to an attaint, as in this case, to make them to find as it were a perfect recovery and perfect tenant, which without question they meant not generally and at large, but only by this bargain and sale, and by no other means.

So upon the whole matter, I was of opinion, that judgment was to be given for the plaintiff, and so were the rest of the judges that had spoken before me and so judgment was given.

But they having argued before me, did take the recovery to be well enough founded upon the words tunc tenens, not observing all the parts, as I noted before.

And they held that yet the recovery was void, because Melton was by the remitter (after the death of the wife without issue) but tenant in tail puis possibility, and so within the statute of 14 Eliz. of feigned recoveries against tenants for life vouchees.

But taking the case as I have argued it, and as I hold the law clear, Melton was never less than tenant in tail: first, by the fine of his wife and himself, and then by his own fine to the use of himself and his wife again in the special tail, the remainder to himself in general tail, which remitted him and his wife to the old tail special, with the old remainders depending upon it as long as the wife lived; but when the wife died, then the old tail and the remainders vanished, and the husband Melton became tenant in tail general by his latter remainder raised by his own fine, and so being ever tenant in tail, can by no means be drawn within the stat. of 32 H. 8. and 14 Eliz., and then if the recovery were good, he comes in a vouchee of all his titles in tail, and binds all remainders upon any of the estates, which he had at any time.

But of this point I spake not publicly, because I held it no recovery as it was found; but Justice Hutton observing my course, did ask me in private what I thought of the case, admitting the recovery to be good. To whom I said as before, and then I held against the plaintiff.

WATERHOUSE & ux. vs. SALTMARSH.

[263 a]

A sheriff may not break open a house to execute the king's process, without first signifying that he is sheriff; or execute such process with unnecessary outrage and terror.

Star chamber punishes the taking out of the king's process without warrant of court, by one who is not a party interested.

The

with

ing an house upon private Po. 269. Ant.

process.

62. 4 Leo. 41.

2 Cro. 556

'SIR Edward Waterhouse and his wife were plaintiffs in Riot for breakthe star chamber against Saltmarsh, undersheriff of Yorkshire, and divers his bailiffs, and against J. Keeling. case was thus; the plaintiff and Keeling were bound David Waterhouse, as his sureties, to one Coale, in four hundred pounds for the payment of two hundred pounds, whereupon judgment was given against Keeling; but at the suit of Keeling, execution was forborne by Coale, to see if any contribution could be gotten of the plaintiff, for David Waterhouse was bankrupt; but at last, nothing coming, Coale took of Keeling two hundred and seventy pounds in satisfaction of his debt, yet delivered his bond into the hand of Keeling, allowing him to sue it against the plaintiff; against whom Keeling sent to Saltmarsh a latitat, and withal a cap. utlagat. before judgment, at the suit of one Basil, a stranger, without his privity or the allowance of the court, or the king's attorney, to the end, that if the plaintiff kept his house, they might break the house, and so serve both it and the latitat. The sheriff thereupon entered the house in the morning, the outer door being open; but being within the house with six bailiffs, some of them being gaol birds, shut the doors and 5 Co. 93. a. drew their swords, and presently he, with two of them with their swords drawn, ran up to the chamber, where the plaintiff and his wife were in bed and the doors locked, and knocking a little, without telling what they were, or wherefore they came, broke open the door and took him, and took bond for his appearance upon the latitat, and forty shillings for suing out a supersed. upon the outlawry, and so discharged him; and afterwards the plaintiff paid or gave assurance to Keeling for ninety pounds, and had 5 Co. 91. b. his bonds both to Coale and the sheriff delivered up unto

[264]

[264 a] him.'

Post 269.

Yelv. 28. accord.

Upon all this the sheriff was fined two hundred pounds for the unnecessary outrage and terror of this arrest, and for not signifying that he was sheriff, that the door might have been opened without violence; but especially for discharging the plaintiff upon the capias utlagat. And Keeling, though it were not holden a star chamber case, that he did sue his fellow surety for contribution, in the name, and by the consent of the creditor, though he himself had satisfied in a sort the debt, because it was a just ground of equity, that the sureties should be equally charged, and it is so commonly used in the like cases, yet he was fined fifty pounds for using the king's process and prerogative without warrant of court, or party interested, he himself having no interest in it, but by that indirect means defrauding the plaintiff of his liberty of defence of house, against his private debt.

Escape.

2 Cr. 532. 5 Co. 31. b.

CASELY US. WESTON.

A sheriff may be fined for not executing a cap. utlag, when he has opportunity.

EZECHIEL WESTON, late sheriff of Radnorshire, was fined at the suit of Casely, for that having a cap. utlagat. after judgment delivered unto him against one Bradshaw, being in view when he was attending upon the judges of assize, from the church to the hall, he did not endeavour presently to take him, whereby he then escaped. But it did also appear, that having means afterwards to take him, he did it not, but took his word to save him harmless.

Error for want of bail in the

LANCASTELL VS. SIDLY.

In error for want of bail in the king's bench, the error must be assigned that there was neither bail, nor the party in custody.

STEPHEN LANCASTELL, executor of Richard Lancastell, king's bench, recovered in the king's bench, against Sir Ralph Sidly, one hundred pounds debt, who being taken in execution Br. Error, 37. escaped, and Stephen Lancastell brought an action of

how it shall be assigned for

error.