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![handle is hein.slavery/ssactsengr1000 and id is 1 raw text is: pleads not guilty, and the other a release, the plea of the release shall be first tried,
because if that be true, it is in law a release to both, and makes an end of the matter.
In assise, a plea to the writ shall be tried before nul tort, &c. And in the case of
the appeal there was a special entry, quod quoad the issue of not guilty cesset triatio
quousque the plea to the writ was determined.
To this the Attorney General answered, that those cases were between party and
party, and bound not the Crown : here the venire facias is returned and filed, so the
effect of their prayer is for me to make a discontinuance. In C. B. between The King
and Roberts et alt', there is now depending a writ of deceit to reverse a fine of lands in
antient demesne ; one defendant demurred, and the other pleaded in chief, that it is
frank-fee : that issue is tried and found for the King, but the demurrer is not yet
determined, and yet that is a case quasi at the suit of the party, for the Crown is
only nominal, and not concerned in interest. Dy. 226.
[267] Et per Curiam: There is no danger of a discontinuance, for if the venire
be filed, the proper entry is, that the jury ponitur in respect'. If it be not filed,
you may yet enter a non misit breve, and either way will prevent a discontinuance.
In the case of the appeal, the bare award, quod cesset triatio quousque, &c. was held
to be a good continuance of the cause.
As to the principal point, it being the cause of the Crown, the Court took time
to consider; and the last day of the term the Chief Justice delivered their opinion,
that the Attorney General was at liberty to bring on either the demurrer or the
trial, as he pleased. A trial at Bar was ordered for the next term.
ARNOLD vers. JOHNSON.
At Nisi Prius in Middlesex, coram Pratt, post clausum termini.
None but the defendant can demand the plaintiff.
The cause was called, and the jury sworn, but no counsel, attornies, parties or
witnesses of either side appeared. Serjeant Whitaker being asked his opinion, said
the plaintiff ought to be called, for the jury being charged, the cause must be carried
on to some determination. But the Chief Justice said, that no body had a right to
demand the plaintiff but the defendant, and therefore the defendant not demanding
him, he could not order him to be called, but the only way was to discharge the jury.
And Mr. Ketelby remembered a case where my Lord Parker did so upon the like
accident (1).
(1) Smith v. Whistler, Cas. temp. Hard. 305, S. P.
MR. RATCLIFFE'S CASE.
Upon an appeal to the Lords Delegates from the judgment of the
Commissioners for Forfeited Estates.
Tenant in tail may, since the 11 & 12 W. 3, suffer a recovery to the use of himself
in fee though he is a Papist. 9 Mod. 172, S. C.
Sir Francis Ratcliffe being seised in fee of the premisses in question, by lease and
release dated 19 & 20 March 1687, settled the same to the use of Edward his first son.
(afterwards Earl of Derwentwater) for life, remainder to his first and every other son
and sons in tail male, remainder to the right heirs of Sir Francis. Earl Edward the
tenant for life died, leaving James his eldest son, who entered and was seised of
the tail: and 1 May 1712 (being at that time a Papist) he conveyed the premisses
to two persons who were Protestants, in order to make them tenants [268] of the
freehold, till a common recovery was suffered, which was accordingly had and suffered
of part of the lands in C. B. Pasch. 1712, and of the other part, lying in the County
Palatine of Durham, 19 June 1712. Both which recoveries were declared to be to.
the use of Earl James in fee. Earl James being thus seised of the fee, by lease and
release 23 & 24 June 1712, on his marriage with Sir John Webb's daughter, conveyed
514
HILARY TERM, 6 GEO.
I STRANGE, 267.](ViewImageLocal?handle=hein.slavery/ssactsengr1000&div=1&collection=&method=preview&ext=.png&size=3)