Poole v Longuevill et Al
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 1063
COURT OF KING'S BENCH
[282] 45. poole versus longuevill & al'. Hil. 20 & 21 Car. II. Regis, Eot. 1336. Writ of error from the Common Pleas to the King's Bench. England, to wit,-Our lord the King has sent to his right-trusty and well-beloved Sir John Vaughan Knt., Chief-Justice of his Bench, his writ close in these words, to wit: Charles the Second by the grace of God, of England, Scotland, France, and Ireland, King, defender of the faith, &c. to our right-trusty and well-beloved Sir John Vaughan Knt. our Chief-Justice of our Bench, greeting: because in the record and proceedings, and also in the giving of judgment, in a plaint which was in our Court before Sir Orlando Bridgman Knt. and Bart, and his companions our Justices of the said Bench, by our writ, between Richard Poole junior, and Sir Thomas Longuevill Knt., Anthony Middleton, William Purratt, and Thomas Leadall, of the taking and unjustly detaining of the cattle of the said Richard, manifest error, as it is said, hath intervened, to the great damage of the said Richard, as by his complaint we are informed : we being willing that the error, if any there be, should in due manner be corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, that if judgment be thereupon given, then you send to us distinctly and openly under your seal, the record and proceedings aforesaid, with all things concerning the same, and this writ; so that we may have them in 15 days from the day of St. Martin, wheresoever we shall then be in England, that the record and proceedings aforesaid being inspected, we may cause to be further done thereupon, for correcting that error, what of right, and according to the law and custom of England, ought to be done. Witness ourself at Westminster, the 28th day of October, in the 20th year of our reign. The answer of Sir John Vaughan Knt. the Chief Justice within named. 1064 POOLE V. LONGUEVILL 2 WMB. SAUND. 283. The record and proceedings of the plaint whereof mention is within made, with all things concerning the same, I send to our lord the King wheresoever &c. at the day and place within contained, in a certain record to this writ annexed, as within I am commanded. john vaughan. [283] Pleas at Westminster before Sir Orlando Bridgman Knt., and Bart, and his companions Justices of our lord the King of the Bench, of Michaelmas term in the 19th year of the reign of our Lord Charles the Second, by the grace of God, of England, Scotland, France, and Ireland, King, defender of the faith, &c. Ho. 499. Yorkshire, to wit. Sir Thomas Longuevill Knt., Anthony Middleton, William Purratt, and Thomas Leadall, were summoned to answer Richard Poole junior of a plea wherefore they took the cattle of the said Eichard, and unjustly detained them against gages and pledges, &c. And whereupon the said Richard by William Battell hia attorney, complains that the said Sir Thomas, Anthony, William and Thomas, on the 27th day of February in the 18th year of the reign of our lord the now King, at Burne, in a certain place called Parkes, took the cattle, to wit, two geldings, three colts, one bull, three steers and five heifers of him the said Richard, and unjustly detained them against gages and pledges until, &c. wherefore he says that he is injured and has damage to the value of 101., and therefore he brings suit, &c. And the said Sir Thomas Longuevill, Anthony Middleton, William Purratt, and Thomas Leadall, by Christopher Hammond their attorney, come and defend the wrong and injury when, &c. And the said Sir Thomas Longuevill in his own right well avows, and the said Anthony, William, and Thomas Leadall, as bailiffs of the said Sir Thomas Longuevill, well acknowledge the taking of the said cattle in the said place in which, &c. and justly, &c., because they say that before the said time when the taking of the said cattle is above supposed to be made, and also at the said time when, &c., the said Sir Thomas Longuevill, in right of Mary now his wife, was and yet is seised of and in a messuage, three barns, and three hundred acres of land with the appuitenances, situate, lying and being in Burne aforesaid, in the county aforesaid, whereof the said place called Parkes in which, &c. is, and at the said time when, &c. was parcel, in his demesne as of fee,(l) and the said Sir Thomas Longuevill being so as aforesaid seised of the said tenements with the appurtenances whereof, &c., he the said Sir Thomas Longuevill afterwards, and before the said time when, &c. to wit, on the last day of March in the 17th year of the reign of our said Lord Charles the Second now King of England, at Burne aforesaid, demised the said tenements with the appurtenances whereof, &c. to one Robert Burdax, to have and to hold the said tenements with the appurtenances whereof, &c. to the said Robert and his assigns, from the Feast of the Annunciation of the Blessed Virgin Mary then last past until the full end and term of one whole [284] year from thence next following and fully to be compleat and ended ; yielding and paying therefore for the said year to the said Sir Thomas Longuevill and his assigns, the rent of 781. of lawful money of England, to be paid at the Feast of St. Michael the Archangel, and the Feast of the Annunciation of the Blessed Virgin Mary by even and equal portions; by virtue of which said demise the said Robert Burdax entered into the said tenements with the appurtenances whereof, &c. and was possessed thereof, and held and enjoyed the said tenements until the 25th day of March in the 18th year of the reign of our said lord the now King, by virtue of the said demise ; and because 391. of the rent aforesaid above reserved, for the half of the said one year above granted ended on the Feast of St. Michael the Archangel in the 17th year aforesaid, were, and still are, in arrear and unpaid to the said Sir Thomas Longuevill, wherefore the said Sir Thomas Longuevill in his own right, and the said Anthony, William, and Thomas Leadall, as servants of the said Sir Thomas Longuevill, and by his command, at the said time when, &c. entered into the said place called the Parkes in which, &c., being parcel of the said (1) This way of pleading the seisin of a husband in right of his wife, is held to be improper and bad on a special demurrer; the correct mode of pleading their seisin is to state, " that the said Sir T. L. and M. his wife were seiaed of and in, &c, in their demesne as of fee, in right of the said Mary." See Vol. I. 253, Took v. Glascock, note (4). 2 WMS. 8AUND. 2M. HIL. 22 AND 23 CAR. II. REGIS 1065 tenements with the appurtenances so as aforesaid demised to the said Robert Burdax, as in land liable (2) to and chargeable with the distress of the said Sir Thomas (2) A distress for rent must be made upon some part of the demised premises; otherwise the tenant may either rescue the distress or bring an action of trespass. Co. Litt. 161 a. 2 Inst. 131. 1 Rol. Abr. 671 (M.), pi. 3. As where in trespass for entering the plaintiff's house and taking his goods, the defendant justified that he let the house to him for one term at a certain rent, and a stable to him for another term at a certain rent, and there being rent in arrear on both demises, he distrained the goods in the house for the rent of both the premises; this justification was held ill on demurrer; for these being separate demises, there ought to have been separate distresses on the several premises subject to the distwict rents; and no distress on one part could be good for both rents. 2 Str. 1040, Rogers v. Birkmire. Cas. temp. Hardw. 245, S. C.(a) But if the landlord, coining to distrain, sees the cattle on the demised premises, and the tenant, to prevent the distress, drives them from off the premises, the landlord may freshly follow and distrain them ; but if the landlord did not see the cattle on the premises, he cannot distrain them, though they were driven away on purpose to prevent his distress ; nor can he distrain them if, after he has seen them, they go off the premises of their own accord. Co. Litt. 161 a. 2 Inst. 131. 1 Rol. Abr. 671 (M.), pi. 1, 2. But now by statute 8 Ann. c. 14, s. 2, extended and enlarged by statute 11 Geo. 2, c. 19, s. 1, 2, it is enacted, that in case any tenant, lessee for life, term of years, at will, sufferance, or otherwise, of any messuages, lands, tenements, or hereditaments, upon the demise or holding whereof any rent is reserved, due, or made payable, shall fraudulently or clandestinely convey away, or carry off or from such premises, his goods or chattels, to prevent the landlord or lessor from distraining the same for arrears of rent so due, or made payable, it shall be lawful for every landlord or lessor, or any person by him for that purpose lawfully empowered, within the space of thirty days next ensuing such conveying away or carrying off such goods or chattels as aforesaid, to take and seize such goods and chattels, wherever the same shall be found, as a distress for the said arrears of rent, and the same to sell or otherwise dispose of in such manner as if the said goods and chattels had actually been distrained by such lessor or landlord, in and upon such (a) [In Buszanl v. Cupel, 4 Bing. 137. 12 Moore, 339, S. C. the Court of C. P. held, that a barge, attached by a rope to a wharf, might be distrained for rent arrear in respect of the wharf and premises attached to it. But in a subsequent case between the same parties in the Court of K. B., reported in 8 B. & C. 141. 2 M. & R. 197, S. C., it was stated by a special verdict, that, by an indenture, A. demised to B. all that wharf next the river Thames, described by abutments, together with All ways, paths, passages, easements, profits, commodities, and appurtenances whatsoever to the said wharf belonging; and that by the indenture the exclusive use of the land of the river Thames, opposite to and in front...
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