Elizabeth Davies, Demandant; W. S. Lowndes (Heir of W. S. Lowndes), Tenant

[762] elizabeth davies, Demandant; W. S. lowndes (Heir of W. S. Lowndes), Tenant. June 29, 1844. The issuing of a writ of right by journeys-accounts after the 31st of December 1834, is not warranted by an original writ of right pending on that day, which has since abated by the death of the tenant.-But all the proceedings appearing fully upon the count on the second writ, the court refused to set aside the writ of grand cape and subsequent proceedings, leaving the tenant to raise the question by demurrer.- Quaere, whether a writ by journeys-accounts lay where the former writ had abated by the death of a sole tenant.-The tenant cannot, with the general mise, plead other pleas raising questions of fact for trial by an ordinary jury. This was a writ of right close (a)2 brought to recover lands in Buckinghamshire. The writ was originally sued out on the 6th of December 1832 (V); and Thomas Davies (a)1 In Sobinson v. Raley there was no connection between the fact of ownership, the fact of levancy and couchancy, and the fact that the cattle were of such kind or kinds as to come within the description of commonable cattle. It is true that these facts, coincided in point of time, and also that they were such as could not have occurred in different counties, so as to give rise to the difficulty suggested by the court in M. 5 H. 7, fo. 7, pi. 14, ante, 753. (a)2 The tenure being in capite, infra, 765. (b)' By the 3 & 4 W. 4, c. 27, s. 36, it is enacted " that no writ of right-patent, right-close, &c. &c., and no other action, real or mixed (except a writ of right of dower, or writ of dower under nihil habet, or a quare impedit, or an ejectment), and no plaint in the nature of any such writ or action, (except a plaint for free-bench or dower,) shall be brought after the 31st day of December 1834." By sect. 37 it is enacted, "that when, on the said 31st day of December 1834, any person who shall not have a right of entry to any land, shall be entitled to maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought at any time before the 1st day June 1835, in case the same might have been brought if this act had not been made, notwithstanding the period of twenty years, hereinbefore limited, shall have expired." By sect. 38 it is enacted, "that when, on the said 1st day of June 1835, any person whose right of entry to any land shall have been taken away by any descent cast, discontinuance, or warranty, might maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought after the said 1st day of June 1835, but only within the period during which, by, virtue of the provisions, of 308 DA VIES V. LOWNDES 7 MAN. & 6. 763. and (the present demandant) Elizabeth his wife [763] were the demandants therein in the right of the said Elizabeth. The mise was joined on the mere right (see the pleadings, 1 N. C. 597, 2 Scott, 71). The cause was twice tried at the bar of this court in Easter term, 1835 (cor. Tindal C. J., Park, G-aselee, and Bosanquet JJ.), and at the sittings after Michaelmas vacation, 1838 (cor. Tindal C. J., Vaughan, Bosanquet, and Coltman JJ.); and, on both occasions, the grand assise returned a verdict for the tenant (d). Between the two trials (viz. on the 9th of May 1835), Thomas Davies died; and a suggestion of that fact was duly entered upon the record. A bill of exceptions having been tendered at the second trial, the errors assigned were argued in the Exchequer Chamber in Hilary and Michaelmas vacations, 1842, when that court again awarded a venire de novo (ante, vol. vi. p. 471, 7 Scott, N. B. 141). Between the finding of the second verdict and the first argument on the last-mentioned bill of exceptions (viz. on the 17th of May 1840), the tenant died. In Hilary vacation, 1843 (see ante, vol. vi. p. 529, 8 Scott, N. E. 539), a fresh writ, by journeys-accounts, was sued out against the present tenant, as heir (h) of the former tenant. In the following Easter term, an application was made in Chancery, on behalf of the tenant, to set aside this writ, on the ground of its having issued after the 31st of December 1834 (vide ante, 762 (a)). The Lord Chancellor ultimately refused the application (vide ante, vol. vi. p. 529, 7 Scott, N. E. 217). On the 29th of April 1843 (pending the motion before the Chancellor), the tenant not having appeared, [764] a writ of grand cape issued, under which he was summoned; and on the 3d of May an appearance was entered for him. On the 2d of November the demandant delivered a count as follows :- "Buckinghamshire, to wit.-Elizabeth Davies, by Daniel Davies, her attorney, demands against William Selby Lowndes the manors of Whaddon Nash GifFords, otherwise called Whaddon Nash and of Giffords manor, in Whaddon, Tottenhoe, otherwise Tattenhoe, otherwise Tatnall, otherwise Tattenhall, and Westbury, otherwise Westberry, and of the manor of Wavendon, otherwise called Wandon, otherwise called Whaddon and Nash, in the county of Buckingham, containing divers, to wit, 5000 acres of arable land, 5000 acres of pasture land, &c., and divers, to wit, four other manors in the said county respectively, containing divers, to wit, 500 messuages, and 500 buildings, &c. with the rights, members, and appurtenances to the said manors belonging, and also 50 other messuages, 50 cottages, &c., 5000 other acres of arable land, &c., with common of pasture thereunto belonging and appertaining, situate and being in the several parishes of Whaddon, Great Horwood, Little Horwood, Tottenhoe, otherwise, &c., Shenley, Great Lyndford, Mursley, and Bletchley, and of the rectory of Tottenhoe, otherwise, &c., with the appurtenances, in the county of Buckingham, which she the said Elizabeth claims to be her right and inheritance, by writ of our said Lady the now Queen, of right: and whereupon she says, that, long before the commencement of this suit, and before the passing of an act of parliament made and passed in the session of parliament holden in the third and fourth years of His late Majesty King William the Fourth (3 & 4 W. 4, c. 27), to wit, on the 6th of December 1832, one Thomas Davies, since deceased, who then was the [765] lawful husband of the said Elizabeth, together with her the said Elizabeth, sued and prosecuted, and there was then duly sued and prosecuted forth of the High Court of Chancery of our Lord the then King William the Fourth, against William Selby Lowndes, since deceased, the tenant of the said premises with the appurtenances, a certain writ of our said Lord the King, called a writ of right, whereby our said late Lord the King commanded the then sheriff of Buckinghamshire that he should command the said William Selby Lowndes, since deceased, that justly and without delay he should render unto the said Thomas Davies and Elizabeth his wife the tenements aforesaid, with the appurtenances, which the said Thomas Davies and Elizabeth his wife, in right of the said Elizabeth, this act, an entry might have been made upon the same land by the person bringing such writ &c., if his right of entry had not been so taken away. (d) See all the previous proceeedings stated, ante, vol. i. p. 473, vol. vi. p. 471. (h) Whether his seisin was by descent or by purchase, appears to be immaterial. An alienation by the former tenant would not defeat any right which the demandant might have to sue by journeys-accounts. 7 MAN. &G. 766. DAVIES V. LOWNDES 309 claimed, to be the right and inheritance of the said Elizabeth, and to hold of our said Lord the King, in chief (a), and whereof they claimed that the said William Selby Lowndes, since deceased, unjustly deforced them; and that unless he the said William Selby Lowndes, since deceased, should do so, and if the said Thomas Davies and Elizabeth his wife should give the said sheriff security to prosecute their claim, then that the said sheriff should summon by good summoners the said William Selby Lowndes, since deceased, that he should be before the said King's justices, at Westminster, on the 8th day of January next, to shew wherefore he had not done it; and that the said sheriff should have there the summoners and that writ; which writ was tested in the name of the said King himself, at Westminster, on the 6th day of December in the third year of his reign (1832): which writ of right was then, and before the return thereof, to wit, on the day and year aforesaid, delivered to the said sheriff of Buckinghamshire to be executed in due form of law: that the said sheriff afterwards, to wit, [766] on the 8th of January, 3 W. 4, returned and certified to the said court before His said Majesty's justices at Westminster, amongst other things, that by J. Gr. and J. G-. the younger he had summoned the said William Selby Lowndes, since deceased, according to the said writ of right, and that after the aforesaid summons made, he made proclamation of the said summons, according to the form of the statute; that thereupon such proceedings were then had upon the said writ, in the said court before His said Majesty's justices of the Bench, that afterwards, to wit, on the 2d of November in the fourth year of the reign of the said late King, the said Thomas Davies, since deceased, and the said Elizabeth his wife, the now demandant, duly counted in and upon the said writ, in the said court, and in and by their count in that behalf, by A. H. Smith, their attorney, said that they demanded against the said William Selby Lowndes, since deceased, the said manors, &c. (setting out the original count) (vide 1 N. C. 597): and that thereupon such proceedings were then, had in the said court before the justices of the Bench, that the said William Selby Lowndes, since deceased, then, to wit, on the llth of January in the fourth year of the reign aforesaid, by T. White...