EASTER TERM

14 GEO. III. 1774.

Tyffen Efquire demandant, verfus Clarke tenant.

The trial at the bar of the C. B. in a writ of right patent.

FRANCIS JOHN TYSSEN Efq. brought his writ 2 Black, Rep. of right against George Clarke and demanded certain mef- 941. fuages, lands and tenements in the parish of Saint John, Hackney, in the county of Middlefex; the tenant by his plea put himself upon the GRAND ASSIZE, and the mife being joined upon the mere right, this caufe came on to be tried on Wednes day the 4th day of May in this term, before the LORD CHIEF JUSTICE DE GREY and the reft of the LORDS THE JUDGES OF THE COURT OF THE BENCH at Weminfter, by the GRAND ASSIZE, (viz., James Efdaile, James Hodges, Philip Dyot, George Mercer, John Walford, Knts. John Spiller, Gerrard Howard, Cadwallader Coker, Roger Griffin, Jofeph Keeling, Thomas Coggan, Lomax Ryder, William Addington, Thomas Parry, Charles Shepherd, and Thomas Lockwood Efqrs. who feverally made the following oath, (viz.)" I Sir James Efdaile do fwear that I will fay the Lit. fe&t. "truth whether George Clarke hath more mere right to hold the 514"tenements which Francis John Tyffen Efq. demands against "him by his writ of right, or the faid Francis John Tyffen to "have them as he demandeth, and for nothing to lett to lay the truth, fo help me GOD."

Thefe fixteen recognitors of the GRAND ASSIZE being all fworn, Henry Fothergill Efq. fecondary to William Mainwaring Efq. chief prothonotary of the court read the pleadings, which are inrolled amongst the pleas of land of the term of the HOLY TRINITY in the thirteenth year of his prefent Majesty's reign, in the 439th Roll.

Walker,

Walker the junior ferjeant, of counfel for the tenant, having opened the pleadings, Davy the King's fecond ferjeant opened the tenant's right and title to hold the tenements in question to him and his heirs to the following effect.

Serjeant Davy for the tenant-The demandant alleges in his count, that his father Francis Ten Efq. was feifed of the tenements in question in his demefne as of fee and right within fixty years laft paft, and that from Francis his father the right defcended to him, and therefore he now calls upon my client the tenant to fhew his right and title to hold the tenements in fee.

In the years 1705 and 1706 Francis Tyfen Efq, grandfather of the demandant, being feifed in fee of the manor of Hackney, commonly called the Lord's Hold, and Sir Edward Northey Knt. (then attorney-general to Queen Ann) being steward of the courts of the manor, iffued a precept under his hand and feal directed to certain cuftomary tenants of the manor, in the nature of a writ of ad quod damnum, commanding them to go to the wafte ground of the manor near to the melfuage of one Thomas Flanders at Stamford-hill within the manor, and there to view and fet out, by metes and bounds, how much of that wafte ground might be inclosed to be holden and enjoyed by the faid Thomas Flanders, to his own proper ufe, with the confent of the lord of the manor, and without prejudice to the tenants thereof, or of any others the Queen's liege fubjects paffing by that way; this precept was iffued by the fteward on the 11th day of February 1705, directed as I have mentioned; accordingly, seven customary tenants of the manor having been at the wafte ground near the meffuage of Thomas Flanders, and viewed the fame, afterwards at a court-leet and general court-baron of the manor held on the 28th day of March 1706, made their return to the precept, (viz.) that they went to the wafte ground near the dwel ling-houfe of Thomas Flanders at Stamford-hill within the manor, and there did view and fee, and by metes and bounds fet out how much of the wafte ground Thomas Flanders might inclofe for his own ufe, with leave of the lord of the manor, and with the confent of the customary tenants of the manor, and the dimensions thereof, but that Mr. Flanders was to maintain the water-course which is by the foot-path fide; and that Mr. Flanders nor his heirs nor affigns, fhould not build any thing at the north end within the breadth of the houfe that Mr. Flanders then dwelt in, or rented of one Mr. Halfted, that might be a foreftalling or prejudice to the fame, without the consent of Mr. Halfted or his heirs or affigns, and thus [they returned] it might be done without prejudice to the lord of the manor or the tenants of the fame, or any of the Queen's liege fubjects paffing that

way,

way, and this they judged to be a true return of the precept to them directed. This is figned by all the tenants who made the return, and by Sir Edward Northey the fteward of the manor with his own hand.

By this precept and the return thereof it appears that Thomas Flanders had a grant of the ground in fee, for it is to inquire how much of the wafte ground might be inclofed, to be held and enjoyed by Thomas Flanders to his own proper ufe; and the return is, that he may inclofe for his own ufe fo much, fet out by metes and bounds, and that neither he nor his heirs and affigns, fhould build fo and fo, which words " heirs and affigns," plainly fhew that he had a fee, and that Sir Edward Northey [that eminent lawyer] understood it fo.-This I humbly contend will amount to a proof of a title or feifin in fee in Thomas Flanders, out of the ancestors of the demandant, and that his father was not fifed in fee within fixty-years next laft paffed before the iffuing forth of the original writ.

Having opened the evidence whereby we fhall endeavour to fhew, that the demandant's ancestors have not been feised within fixty years; I fhall now proceed to open to you the tenant's right and title.

In the year 1736 one Roger Ofbaldeflon an attorney, being feifed in poffeflion in fee of the tenements in queftion, by leafe and releafe of the 24th & 25th of February 1736, mortgaged the fame in fee to John Clarke the father of George Clarke the tenant, [whofe heir he is] for fecuring the fum of 1000l. and intereft, which deeds were properly registered; and no doubt or question was ever made by the lord of the manor, or by his fteward or any other perfon, of the power of Ofbaldeflon to make that mortgage in fee.

Afterwards the intereft due upon the mortgage not being punctually paid, it was agreed that Mr. Clarke (the father of the tenant) fhould purchase of Ofbaldefton the equity of redemption in fee; accordingly, by indentures of leafe and releafe of the 13th

14th of December 1742, between Roger Ofbaldeflon and Sarah his wife of the one part, and the faid John Clarke of the other part, Ofbaldefton in confideration of 1280l. which was then owing and due for principal money and intereft, and of 2207. more making in all 1500l. releafed the equity of redemption in fee of the premifes in queftion to John Clarke, covenanted to levy a fine thereof to his ufe in fee, alio that the tenements were free from incumbrances, and were only fubject to a quit-rent of 10s, per annum, payable to the lord of the manor, and alfo that.

he

he had a good title to grant and convey the premises in fee fimple; which deeds of leafe and release of 1742 were also properly registered, and no doubt or queftion was ever made by the ford of the manor, his steward, or by any other perfon of the power of Ofbaldeflon to make that conveyance in fee.

In Michaelmas term in the fixteenth year of King George the fecond a fine was accordingly levied between John Clarke (the late father of the tenant) plaintiff, and Roger Ofbaldefton and Sarah his wife deforceants, of the tenements in question with proclamations according to the ftatute, to the use of the faid John Clarke and his heirs.- -A deed poll of attornment was alfo then executed by Ofbaldeflon and all the other perfons in poffeffion of the premiles in queftion, whereby they attorned tenants to John Clarke, who entered into the tenements in 1742, and continued in poffeffion till 1769, when he died feifed thereof, whereupon George Clarke the tenant, his fon and heir entered and has been in poffeffion ever fince, and now is feifed in fee: this is the tenant's right and title, which will be proved, and then we hope, that you gentlemen of this GRAND ASSIZE will find a verdict for the tenant.

The evidence for the tenant, was produced and proved in this order,

f, The mortgage in fee (for fecuring 1000l. and intereft) by Ofbaldefton to John Clarke by leafe and release of the 24 & 25 of February 1736 was proved and read.

adly, The leafe and release of the 13 & 14 of December 1742, whereby Ofbaldefton releafed and conveyed to John Clarke the equity of redemption of the premises in queftion in fee-fimple in confideration of 1500l.

3dly, The fine by Ofbaldeflon and his wife to John Clarke with proclamations was admitted by the counsel for the demandant, and that by virtue thereof John Clarke entered and became feifed in fee, that he died feifed, and that George Clarke the tenant is his heir; and it was alfo admitted that neither did Francis Tyffen the father, nor Francis John Tyffen his fon [the demandant] at any time within five years next after the proclamations had and made, pursue his title, claim or intereft in or to the tenements in queftion, or any part thereof by way of action or lawful entry.

4thly, The deed poll executed by Ofbaldefton and the perfons in poffeffion dated the 22d of December 1742, whereby they attorned tenants to John Clarke was proved and read.

5thly, It was alfo proved by feveral witneffes who knew John Clarke, that he was in poffeffion and received the rents and profits of the tenements in queftion from the year 1742 until his death, and that he died in the year 1769.

6thly, Then Serjeant Davy called upon the demandant to pro duce the book or court rolls of the manor wherein the precept and return which he had before opened and ftated] were entered; a book of the courts of the manor was accordingly produced by Mr. Wall the fteward, in which there is an entry of a precept iffued by the steward of the courts and a return thereto, by certain customary tenants of the manor, the tenor whereof is as followeth, which was read.

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"Manerium de Hack-" Curia Vifüs Franci Plegü Domina Re "ney Communitèr, gina cum Curiâ Baron' Generali Francifci Tyffen Armigeri, &c. &c. "28 Martii 1706.

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46 vocatum, The "Lord's Hold.

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"Etiam ad hanc Curiam Homagium prædictum fuper Sacra. *mentum fuum prefentat quoddam aliud Preceptum gerentem da"tum decimo octavo die Januarii ultimi preteriti per prefatum Senefchallum fub manu et figillo fuis emanatum et quibufdam Cufto"maris tenentibus Maneru predicti directum, precipiens is ac"cedere ad Vaftum Fundum Manerii predicti propè Meffuagium "Thomæ Flanders apud Stamford-Hill infrà Manerium predictum, et ibidem intueri et per metas et bundas exponere quantum Vafti fundi predicti includi poffit, tenendum et gauden"dum per prefatum Thomam Flanders ad proprium ufum fuum "cum confenfu Domini Maneri predicli et finè prejudicio Tenentium ejufdem, aut aliquorum aliorum Legeorum dicta Domina Regina per viam illam tranfeuntium; et quòd ad hanc Curiam Septem "tenentes cuftomari Maneri predicti quibus preceptum predictum directum fuit fecerunt Retornam Precepti predichi in hifce Anglicanis verbis fequentibus, viz. Hackney manor, The Lord's Hold. We whofe names are here-under written being cuftomary tenants of the faid manor near the dwelling-houfe of Here feems "Thomas Flanders at Stamford-hill within the faid manor, and to be a few "there did view and fee, and by metes and bounds fet out how ing, but this "much of the faid wafte ground the faid Thomas Flanders may in- is an exact clofe for his own ufe with leave of the lord of the faid manor, the court"and with the confent of us customary tenants of the faid manor, book. " and the dimenfions are as followeth, Crofs the common at the "fouth-end ten rod and a half, the weft fide by the foot-path "twenty-one rod, and the north-end is five rod, and the east-fide "is twenty-two rod; but Mr. Flanders is to maintain the wa"ter-courfe which is by the foot-path fide, and that Mr. FlanVol. III.

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