1 Vern. 85. Salk. 234. Bales and not apply to the prefent cafe; that was a devife of the refidue of all his eftate real and perfonal, and had relation to what went before in that will; where words taken by themfelves [in a will] may only give an eftate for life, yet by relation to other words in the will, they may carry a fee, Green verfus Armfteed, Hob. 65. and in Salk. 234. The devife of the Bell Tavern would not have carried a fee, but by connecting it to what went before. Gave in Upon the whole I am of opinion that William the nephew Cane 1750. took only an eftate for life, and that the leffor of the plaintiff who is heir at law to the teflator is intitled, fo the poftea must be delivered to the plaintiff. And of the fame opinion was the whole court. Judgment for the plaintiff. Tiffen Efq. demandant verfus Clarke, gent. tenant. In 2 Black. Rep. a writ of right patent. 891. S. C. [by Middlefex, FRANCIS John Tiffen Elg. by John Vernon his at- Declaration (to wit) torney demands against George Clarke, gentleman, in a writ of ten meffuages, ten gardens, one fhop, two coach-houses, right patent. three ftables, and two acres of land with the appurtenances, in the parish of Saint John Hackney, as his right and inheritance by writ of our Lord the King of right, and thereupon he faith, that Francis Tiffen Efq. father of him the faid Francis John, was feifed of the tenements aforefaid, with the appurtenances in his demefne as of fee and right in the time of peace in the time of our Lord George the firft, late king of Great Britain, (to wit) within fixty years now laft paft, by taking the explees thereof to the value, &c. and from the faid Francis the father, the right defcended to the faid Francis John, who now demands as fon and heir of the faid Francis his father. And that fuch is his right he offers, &c. whereon the And the faid George Clarke by John Swale his attorney comes Plea the ge and defends the right of the faid Francis John Tiffen, and the neral iffue feifin of the faid Francis Tiffen, when, &c. and the whole, &c. mife is joined and what foever, &c. and moftly of the tenements aforefaid as upon the of fee and right, &c. and he puts himfelf upon the grand affize mere right. of our Lord the King; and he prays a recognition to be made, whether he the faid George Clarke has a greater title to hold the tenements aforefaid with the appurtenances, to him and his heirs as tenants thereof, as he now holds the fame; Or whether the faid Francis John Tiffen has title to hold the fame tenements, with the appurtenances, as he has above demanded the fame, c. and the faid Francis John Tiffen doth the like. EE 2 The The mife joined upon the mere right The tenant by leave of the court pleaded another plea in bar, that a fine with proclamations was levied of the lands in queftion in Michaelmas term, 16 Geo. 2. and non-claim. Whereupon it was moved by Serjeant Burland for the deman dant, that the tenant might fhew caufe why one of his pleas fhould not be ftruck out; because upon the firft plea [which is the general iffue] the mife is joined upon the mere right, which can only be tried by the grand affize, which must confift of four to be tried by knights of the faid county girt with fwords, and twelve other jurors, in all fixteen jurors or recognitors; but the iffue to be joined upon the plea in bar of a fine and non-claim, must be tried by a common jury of twelve, and there cannot be one venire to try both iffues. the grand Booth 101. fect. 41. Every thing in evidence iue except collateral Upon fhewing caufe by Serjeant Walker for the tenant, why one of the pleas fhould not be ftruck out, the whole court feemed to be of opinion, that every thing may be given in evidence upon the mife joined upon the mere right, except collateral warranty, Brook Droit, pl. 48. but did not give any politive opinion. Whereupon the Serjeant for the demandant and tenant agreed that a rule fhould be made by confent, that the plea in bar of a fine and non-claim fhould be ftruck out, and that upon the trial, the tenant fhould be at liberty to give in evidence upon the firft plea, a fine acknowledged to the ufe of the tenant in fee with proclamations, and that the demandant or his father never made any entry to avoid the fine; and that the demandant fhould be at liberty to give in evidence, that the parties to the fine, or any of them at the time of levying the faid fine, had nothing in the premises the tenements in queftion; fo the rule was drawn up accordingly. Nota. This caufe was tried at the bar afterwards in Eafter term, in the fourteenth year of his prefent Majefty, when the grand affize found a verdict for the demandant Tiffent 2 Black. Rep. $81. S. C. [That a man tively recol lect a fact, Thomas Miller's cafe. C. B. cannot pofi-THE King's writ of habeas corpus iffued out of this court, " but should full and fatis-." factory antwer by a witness on a Commission of Bankrupt.] George by the ftatute George the third by the grace of God of Great Britain, France The writ of and Ireland, King, defender of the faith, &c. To the warden of babeas cor; us our prifon of the Fleet or his deputy there, greeting. We com- of the 3ad of mand you that you have before our juftices at Westminster, upon Charles the Tuefday the 4th day of May next, at the fitting of the court on 24. that day, the body of Thomas Miller in our faid prifon in your cuftody detained as it is faid, by whatever name the faid Thomas Miller is therein called, together with the day and caufe of his being taken and detained, to do and receive what our faid jus tices fhall then and there confider of him in this behalf, and have you then there this writ; witnefs Sir William De Grey Knt. at Westminfer the twenty-eighth day of April in the thirteenth year of our reign. Thus indorfed Thus indorfed by the warden of the Fleet prifon. Henry Townly Ward, 29th April 1773. By virtue of this writ to me directed the body John Eyles Efq. warden of the prifon of our the writ con The Fleet (to wit) I John Eyles Efq. warden of the prifon The schedule of our Lord the King of the Fleet, to the juftices of our Lord annexed to the King at Westminster, moft humbly certify and return, that taining the before the coming of the writ of our faid Lord the King to this return there, schedule annexed and to me directed, (that is to fay) on the of. twenty-feventh day of February in the year of our Lord one thousand feven hundred and feyenty-three, Thomas Miller in the faid writ named, was brought into the faid prifon of the Fleet, and is now detained under my cuftody in the faid prison by virtue of an order under the hands and feals of the major part of the commiffioners in a commiffion of bankrupt awarded and iffued against one Samuel Cole; the tenor of which faid order is in the words and figures following, (that is to fay) at the Crown and Rolls Tavern in Chancery-lane, in the county of Middlefex, the 26th day of February 1773, whereas the King's Majesty's commiffion under the Great Seal of Great Britain, grounded upon the feveral ftatutes made and now in force concerning bankrupts, or fome or one of them, bearing date at Westminster the fecond day of June, in the twelfth year of his prefent Ma. jefty's reign is awarded and iffued against Samuel Cole, of the EE 3 parish parish of Saint Paul Covent Garden, in the county of Middlefex mercer, dealer and chapman, directed to John Seare, Fowler Walker, Abel Moyfey Efquires, Henry Barnes and Thomas Griffiths gentlemen, or any four or three of them. And whereas the faid commiffioners in the faid commiffion named, or the major part of them, having begun to put the faid commiffion in execution upon due examination of witneffes, and other good proofs upon oath before them had and taken, did find that the faid Samuel Cole before the date and fuing forth of the faid commiffion did become bankrupt, within the compass, true intent and meaning of fome or one of the ftatutes made and now in force concerning bankrupts, and did adjudge and declare the faid Samuel Cole a bankrupt accordingly. And whereas on the twenty-fixth day of February one thousand feven hundred and feventy-three, Thomas Miller of Gold/mith-ftreet in the city of London, weaver, was fummoned to appear before us whofe hands and feals are hereunder fubfcribed and fet, being the major part of the commiffioners in the faid commiffion named and authorized, at fix of the clock in the afternoon of the day laft aforefaid at the Crown and Rolls in Chancery-lane, in the county of Middlefex aforefaid, in order to be examined touching the difclofure and difcovery of the faid bankrupt's eftate and effects; and whereas we the faid commiffioners met at the place aforefaid, when and where the faid Thomas Miller, in obedience to our fummons, appeared before us, and he being afked upon oath feveral queflions touching the difcovery of the faid bankrupt's eftate, he did not in our judgment and opinion fully make anfwer to feveral queflions at that time by us put to him. And the faid Thomas Miller being afked by us amongst other queftions, which were neceffary for the difcovery of the faid bankrupt's eftate, "Whether or not he purchafed by a broker two certain bales of china filk, of the value of two hundred and feventy pounds or thereabouts, mentioned in "the latter part of his examination, taken before us on the twenty-third day of February inflant," (which faid exami nation was then and there read to him) or whether he could form any belief, whether he bought them by a broker or not? The faid Thomas Miller for anfwer faid, "He could not pof"fatively recollect whether he had bought the fame by a broker or "not, but should rather believe he had bought the fame by a broker." And the faid Thomas Miller being further asked, "Whether or "not he believed he had bought the faid two bales of filk by a "broker?" He faid, "He could not give another answer,' "than the above-mentioned. And the faid Thomas Miller being told by the faid commiffioners, that the above-mentioned anfwer was not a full answer to their queftion; and being further afked,Whether by the words [he fhould rather believe in 66 66 66 66 "his faid anfwer above-mentioned he meant, that he did believe "the faid two bales of filk were bought by a broker, or whether "he meant to fay he did believe that the faid two bales of filk were not bought by a broker?" He the faid Thomas Miller refused to answer "whether he did believe that he had bought the "faid two bales of filk by a broker, or whether he did believe "that he had not bought the faid two bales of filk by a broker?" And for that the faid Thomas Miller in other refpects misbehaved himself to us, we the major part of the faid commiffioners in the faid commiffion named, do therefore by virtue of the faid commiffion, and of the several statutes now in force concerning bankrupts, fome or one of them herewith fend to you the keeper or warden of his Majefty's prifon of the Fleet, the body of the faid Thomas Miller; and do hereby command and require you the faid keeper or warden to receive him into your cuftody, and him there fafely keep, and there to remain without bail or mainprize until fuch time as he the faid Thomas Miller fhall fubmit himfelf to us the faid commiffioners or the major part of the commiffioners in the faid commiffion named, and full anfwer make to the faid commiffioners to all fuch queftions as fhall be put to him as aforefaid, and according to the true intent and meaning of the ftatute or ftatutes in that cafe made and provided fome or one of them; and this fhall be your authority for fo doing. To James Paris our meffenger, and William Staddon and Endymion Porter-To all the conftables and others his Majefty's officers of the peace to whom these prefents fhall come, requiring and commanding him or them to be aiding and affifting in the exccution of this our warrant as occafion fhall offer; and alfo to the keeper or warden of his Majefty's prison of the Fleet in the city of London, or his deputy or deputies. John Seare, And this is the cause of taking and detaining the faid Thomas Miller, whofe body I have ready according to the command of the faid writ hereunto annexed. Miller being now brought to the bar, the habeas corpus and May the 4th. the return thereof being read and filed, Serjeant Burland took EE 4 feveral |