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viously been done, to reverse a judgment and havo restitution if it had been executed.
The case No. 11 in Easter Term presents many Sheriff features of interest, one of them in relation to the con- ^antC;n duct of Sheriffs. The late Sheriff of Somersetshire assise for (Hildebrand de or of London) was made one of the defen- writ of"8 dants in an assise of Novel Disseisin for no other reason seisin, than that he had given seisin to another of the defendants, John De Lorty, after a judgment in favour of the latter upon a writ of Entry. He had ousted one Robert Fitz-Payn and Ella, Robert's wife, who then became plaintiffs in the assise in respect of certain tenements in West Camel. The Sheriff appeared by bailiff, who said for him that he had put Lorty in seisin by virtue of the King's writ following judgment, and Lorty appeared by the same bailiff, who said that he had entered by virtue of the judgment, of which the circumstances were stated, without wrong or disseisin, and in each case issue was joined to the assise.
The jurors would not find a positive verdict of dis- Special seisin or the reverse. They prayed the aid of the Court, cfuding"1 saying that the tenements were formerly in the seisin matter of of Walter de Thornhull and Margery his wife, that1660TM'' Lorty had brought an action in respect of them as being in Dunhead, that Dunhead was a hamlet of West Camel, that by reason of the demise of the King the plea had been without day, that Robert and Ella had then purchased the tenements by fine, that upon a re-summons Walter and Margery had admitted the alienation, that Lorty had then recovered, and that the Sheriff had given him seisin by virtue of a writ following judgment in the Court of Common Pleas. They were then asked how they knew that any such action was brought or judgment given in that Court, as the pleas and judgments of the King's Court are of record and not within
the cognisance of jurors of the country. They replied that they had not any certain knowledge that there was such a plea, and did not wish to say positively (assertive) that there was, and they knew only by the summons and resummons to the tenants in the first action, and by view of the land, and because it was commonly said in the neighbourhood that there was such a plea and such a judgment. In like manner also, because the Sheriff had the King's writ to put Lorty in seisin (as the Sheriff asserted), and did in fact put him in seisin, they understood that there was such a plea between the parties, and such a judgment given. Further pressed to say whether the plaintiffs in assise had been disseised or not, they declined to give any other verdict than that which they had already given, and again prayed the aid and diseretion of the Court. They then answered another question as to the damages in case it should be held that there was a disseisin, and as to the yearly value of the tenements.
Diversity There was an adjournment for judgment from Chard, 'between where the assise was taken, to Exeter, and thence tenements another adjournment to Westminster, in each case ^previous before Justices of Assise. At Westminster there was action and produced, on behalf of Lorty, the King's writ close (a oVwhich** Mittimus) directed to the Justices of Assise, in which plaintiffs in ft was recited that the writ of Entry had been brought disseised?TM in respect of tenements in "Dunheved juxta West "Camel," that, after the commencement of the action, there had been levied a fine passing them "sub nomine "manerii de Dunheved," and that the demandant had recovered and had had livery of seisin. It was also recited that Robert Fitz-Payn, and Ella had brought the assise in respect of tenements in "West Camel" in order that, as alleged, although the tenements were the same, Lorty might be precluded by the variance (per variatioiiem villae) from the advantage of pleading the recovery, and that he had prayed a remedy. The record and process of the previous action and a transcript of the fine were sent.
Thereupon the matter was adjourned, propter dijji- Judgment cvltatem, into the Court of Common Pleas, where judg- common ment was given as follows:— Forasmuch as in the Plefts record alleged hy John de Lorty it is contained that sheriff and the same John demanded by his writ certain tenements oo-defenin Dunhead, nigh West Camel, and recovered them by judgment of the Court of the Lord the King, and Robert and Ella have now complained that they have been disseised of tenements in West Camel, and thus it cannot in any wise be lawfully understood that the tenements now put in view are the same tenements as the aforesaid John de Lorty heretofore demanded in Dunhead, nigh West Camel, and the same John could not have been admitted to allege this, even though he had heretofore pleaded in his own person before the Justices of Assise, and forasmuch as it has been found by verdict of the Assise that Robert and Ella purchased the tenements of Walter and Margery and were seised thereof until John de Lorty and Hildebrand (the Sheriff) removed Robert and Ella in virtue of the judgment aforesaid, it appears to the Court that this removal was a disseisin unto the same Robert and Ella. Therefore it is considered that the aforesaid Robert and Ella do recover their seisin of the tenements put in view, by view of the recognitors of the assise, and their damages aforesaid, and that tlie aforesaid John de Lorty and Hildebrand (the Sheriff) be in mercy for the disseisin.
As it was not disputed in the action of assise that the Was the tenements put in view really were, in one sense or other, ^n"^1" in West Camel, Lorty and the Sheriff would appear with any to have now suffered through a misdescription of them ^^\es? in the previous action. It is, however, strange that, when they were described as being in Dunhead, nigh West Camel, in the writ of Entry, the tenants did not
then avail themselves of the error, before judgment was rendered against them, and still more strange that the Sheriff gave seisin of tenements which were described in the writ of seisin as being either in a place other than that in which they really were, or in a place which was non-existent. So far as appears in the reports and in the record, the sole ground for the assise might be reduced simply to the use of the one word juxta in the previous action. The Sheriff ought of course to have exercised due caution with regard to a writ of execution, but, as far as appears, Lorty had to endure a great hardship for a mistake in the use of a word which was not observed until some years had elapsed after it had been made. There is nothing to show that there was any collusion between any of the parties and the Sheriff, though the ballad-mongers of the time would probably have made the most of the facts.
Importance This case must have been of importance at the time, at the 08s6 because (amonR other reasons) it afforded an instance of period. a very remarkable plea by bailiff, and a very remarkable finding by the jurors of the assise in consequence of it. The mode of pleading by bailiff was governed by 13 Edward I. (Westm. 2) c. 25, a later exposition of which appears in 2 Inst. 414. There are also some remarks upon the subject in Fitzherbert's Natura Brevium, 423, A. Some of the earlier reports, however, are not in quite all points in agreement with one another. But as the subject is of a technical character, without any important bearing upon either ancient history or modern practice, it seems unnecessary to pursue it further.
Before the reign of Edward VI.1 actions were dis- Discontincontinued by the demise of the King, and in the case actions by to which reference has last been made (No. 11 of Easter jj^? of Term) there is a curious mention of the discontinuance of the previous action by the demise of Edward II.
This is an instance in which the demise came to pass The otherwise than by death, and the words by which it J/etm1s6" is deseribed may be worthy of attention. It seems to ward II.: have been intended, at the time, that the deposition 2^^i of of the unfortunate sovereign should be in name a the deposiresignation, but the resignation was not obtained until gip"^,,TM" Parliament had declared him incapable of reigning, and the persons constituting it had renounced their allegiance.2 In one account, indeed, it is stated that the "Procurator" of Parliament said to him, "Diffido "te et privo omni potestate regia et dignitate,"3 but this appears to be an incorrect abridgment of the words "Immo te reputant et tenent amodo personam pri"vatam ab omni regia dignitate," 4 as given elsewhere. The difference between the two forms of expression may not appear very important at first sight, but it is seen to be very great when they are considered in relation to the context. According to the one, the "Procurator" assumes in the name of Parliament an absolute authority to deprive the sovereign of his royal power and dignity; according to the other he announces that after withdrawing allegiance Parliament regards the King as a private person without any royal dignity, and this with the object of inducing him to resign. According to the latter account he did in fact resign:
11 Edw. 6. c. 7.
3 Gesta Edwardi de Carnarvon, p. 90, and Vita et Mors Edwardi Secvndi, p. 314. (Chronicles of the Reigns of Edward I. and Edward II., Rolls Series, Vol. II.)
3 Higden, Polychronicon, vii., 43
(Rolls Series, vol. viii., p. 322),
4 Gest. Ed. de Cant., as above.