Wotton v Hele
| 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. 935
COURT OF KING'S BENCH
2 WMS. SAUND. 17S. MICH. 22 CAR. II. REGIS 935 [175] 32. wotton versus hele. Mich. 21 Car. 2, Regis, Rot. 210. Middlesex, to wit.-Be it remembered that heretofore, to wit, in the term of St. Hilary last past before our lord the King at Westminster came John Wotton by Richard Hals his attorney, and brought here into the Court of our said lord the King then there his certain bill against Penelope Hele widow, late wife of John Hele, Esq. deceased, in the custody of the marshal, &c. of a plea of breach of covenant, and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words, to wit : Middlesex, to wit, John Wotton complains of Penelope Hele widow, late wife of John Hele, Esq. deceased, being in the custody of the marshal of the Marshalsea of our lord the King, of a plea of breach of covenant, for this, to wit, that whereas a certain fine(l) was levied in the Court of the late pretended keeper of the liberties of England by authority of Parliament, of the Bench, at Westminster in the county of Middlesex, from the day of St. Michael in one month, in the year of our Lord 1649, before (2) Oliver St. John, John Pulliston, Peter Warburton, and Edward Atkins, Justices, and other faithful persons then there present, between the said John Wotton, and one Richard Shapleigh, one Bartholomew Bynmore, and one John Hill, by the names of Richard Shapleigh, John Wotton, jun. Bartholomew Bynmore complainants, and the said John Hele and Penelope, by the names of John Hele and Penelope his wife, deforceants* (among other things) of one messuage, two gardens, two orchards, ten acres of land, five acres of meadow, ten (1) Although it was said by Fitzherbert Justice obiter, and the prothonotaries, that in pleading a fine, it is not proper to say that a fine was levied generally, but it should be shewn, that A. B. was seised, i&c. and so seised the fine was levied, Bro. Fines, 3, yet in Dyer. 291 a. it is said, that the ancient course of pleading a fine was not to allege a seisin in the parties to the fine or any of them, but generally that a fine was levied; for it might be of a reversion, of which seisin cannot be alleged. 1 Leon. 255, Weston and Gannon's case. Therefore, where in replevin the defendant avowed because one S. M. was seised in fee of the place in which, &c. and being so seised, levied a fine to certain uses, the plaintiff in his plea in bar, traversed the seisin in fee of the said S. M. at the time of levying the fine, and issue being joined there upon, and a verdict found for the plaintiff, judgment was arrested, and a repleader awarded, because the seisin in fee was not traversable, and therefore the issue immaterial. 2 Lutw. 1608, 1625, Walters v. Hodges. Sav. 85. (2) See 1 Saund. 258, Took v. Glascock, note (7). It is, however, doubtful whether Plow. 105 a. there cited, warrants the observation; see Com. Dig. Fine (H. 2); for in 1 H. 7, 10 b. pi. 13. Bro. Fines, 125, it is said, that in pleading a fine every one of the Justices of the Common Bench must be named by their names, though other writs which come out of Chancery are directed to T. B. Chief Justice of the Common Bench, and his fellows, without expressing their names, but it is otherwise of a fine; and so are all the precedents of pleading a fine. Plow. 353. Co. Ent. 171 a. 182 a. Clift. 305. 2 Lutw. 1016. So he who pleads a fine, ought to shew in what term, and what place, as at Westminster; for the party may plead no such record or fine. Bro. Pleadings, 167. And it is a fine of that term when the concord was made, and of which the writ of covenant was returnable; for the agreement made in Court makes the fine complete. 1 Salk. 341, Lloyd v. Lord Say and Seal. But it is not necessary to say that the fine was levied in the Common Bench. Plow. 431 b. S-m&th v. Stapkton.(a) * Fide 1 Leon. 255. (a) [With respect to pleading the proclamations;-if it be averred that the fine was proclaimed " according to the form of the statute," these words it should seam, sufficiently import that all the proclamations were made in Court as required by the statute. 3 B. & Ad. 764, Doe v. Harrison ; in which case Lord Tenterden referred to the form in which a fine with proclamations is pleaded in Took v. Glascock, ante, Vol. I. p. 258.] 936 WOTTON V. HELE 2 WM8. SAUND. 176. acres of pasture, thirty acres of furze and heath, and common of pasture with the appurtenances, to have and hold the tenements and common of pasture aforesaid with the appurtenances to the said John Wotton for the term of 99 years next after the decease of William Wotton of Woodland, and John Wotton and Elizabeth his wife, if the said Johu Wotton, jun. now plaintiff, and Grace Wotton daughter of Philip Wotton of Ilsiiigton, or either of them, should so long live. And the said John Hele and Penelope, and the heirs of the said John, did warrant (3) to the said John Wotton the aforesaid tenements and common of pasture with the appurtenances against all men during all the term aforesaid, as by the record (4) of the said fine remain-[178]-in(f in the Court of the Bench aforesaid more fully appears. By virtue of which said fine, the said John Wotton, jun. was possessed of the (5) interest of the said term of 99 years, if he the said John Wotton, jun. and G-race, or either of them should so long live. And being so possessed thereof the said William Wotton, and John Wotton and Elizabeth his wife afterwards, to wit, on the 6th day of September in the loth year of the reign of our Lord Charles the Second, now King of England, &c at Westminster aforesaid, died ; after whose death he the said John Wotton, jun. entered into the tenements aforesaid with the appurtenances, and was possessed thereof. And being so possessed thereof the said John Hele afterwards, to wit, on the 7th day of September in the aforesaid 15th year of the reign of our said Lord Charles the Second, now King of England, &c. at Westminster aforesaid, likewise died, and the said Penelope survived. And the said John Wotton, jun. in fact says, that one Hugh Stowel, Eaq. after the commencement of the term aforesaid, and during the term aforesaid, and before the day of exhibiting this bill, to wit, on the 29th day of September in the 18th year of the reign of our said lord the now King, having a lawful right and title to the tenements aforesaid with the appurtenances, entered into the same in and upon the possession of him the said John Wotton, jun., and ejected, expelled and amoved the said John Wotton, jun. against the will of the said John Wotton, by due process of law, from the possession and occupation of the said tenements, and kept atid held out, and still keeps and holds out, him the said John Wotton, jun. so thereof expelled from his possession thereof, against the form and effect of the said fine and warranty.(6) And (3) It appears by the warranty by the husband and wife, and the heirs of the husband, that this was the husband's estate, in which the wife had only a right of dower, or a jointure, and not the wife's estate; for in all cases where a fine is levied by husband and wife of lands, which are the estate of the wife, the warranty is from the husband and wife, and the heirn of the wife. 2 Eol. Abr. 17 (O.), pi. 3. No mention is here made of any proclamations; for a feme-covert may convey her own estate, or bar herself of her dower or jointure by a fine without proclamations, as well as with ; because a fine derives this effect from the principles of the common law, and not from any statute. Cruise 107, 2d edit. See 1 Saund. 259, note (8). (4) The words in italics may be omitted. They are so in WUUan, v. Berkley, Plow. 224, and which omission was held proper in a subsequent case. 1 Leon. 77, Zouch and Bamfield's case. So where a fine with proclamations is pleaded, and the words "as by the record of the said fine" are used, it is not necessary to add the words "and by the proclamations." 1 Leon. 77. (5) See 1 Saund. 251, Took v. Glascoek, note (1). (6) la covenant against the representatives of J. W., the declaration stated that the said J. W. by indenture granted certain premises to the plaintiff in fee, and warranted them against himself and his heirs, and covenanted that he was, notwith standing any act by him done to the contrary, lawfully and absolutely seised in fee-simple, and that he had a good right, full power, and lawful and absolute authority to convey, and assigned a breach, that J. W. had not at the time of making the said indenture, nor at any time before or since, good right, full power, and lawful and absolute authority whatsoever, to convey or assure the said premises to the plaintiff in manner aforesaid. The defendant prayed oyer of the indenture, by which it appeared, that J. W. covenanted for himself, his heirs, executors, and administrators, to make a cart-way, and that the plaintiff should quietly enjoy without interruption from himself, or any person claiming under him ; and lastly, that he, his heirs and assigns, and all persons claiming under him, should make further assurance, and then demurred; and on argument it was held J WMS. SAUND. 177. MICH. 22 CAR. II. REGIS 937 so the said John Wotton, jun. says, that the said Penelope, after the death of the said John Hele (although often required), has not kept, but has broken, his aforesaid covenant of the said warranty, and to keep the same with the said John Wotton, jun. has altogether refused, and still refuses; to the damage of the said John Wotton, jun. of 6001., and therefore he brings suit, &c. And now at this day, to wit, on Saturday next after three weeks of St. Michael in this same term, until which day the said Penelope had leave to imparl to the said bill, and then to answer, &c. before our lord the King at Westminster comes as well the said John Wotton, jun. by his attorney aforesaid, as the said Penelope by Samuel Marwood her...
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