James Hardman, who was the only brother of the said John Hardman, who died seised as aforesaid, suoject to the right of dower of the said Jane, the wife of the said John Hardman, which right of dower became determined and ceased by the death of the said Jane Hardman, in the lifetime of the

*661] said John Hardman, the nephew, and also subject to the several es

tates in the said undivided moiety of the said tenements, with the appurtenances, given and devised by the said last will and testament of the said John Hardman, who was seized of the tenements as aforesaid, and from the said John Hardman, the nephew, in whose lifetime the said James Hardman, the nephew, died, without ever having had any heirs or issue of his body, and which John Hardman, the nephew, also died without ever having had any heirs or issue of his body. Whereupon all the estates of freehold and inheritance of and in the said undivided moiety of the said tenements, with the appurtenances, devised and created by the said last will and testament of the said John Hardman, who was seized of the said premises, being determined or incapable of taking effect, the right to the said undivided moiety of the said tenements, with the appurtenances, descended and came to one other James Hardman, as eldest cousin and heir of the said John Hardman, the nephew, to wit, as son and heir of one other John Hardman, who was son and heir of one other John Hardman, which last mentioned John Hardman was the eldest brother of one other James Hardman, the said last mentioned John Hardman and James Hardman being sons of one William Hardman, which last mentioned James Hardman was the father of one Richard Hardman, which Richard Hardman was the father of the said James Hardman, the brother of the said John Hardman, who was seised of the said premises as aforesaid, which lastmentioned James *Hardman was father of the said John Hardman, 662] the nephew of the said John Hardman, who was seised of the said premises as aforesaid. And from the said James Hardman, the eldest cousin and heir of the said John Hardman, the nephew of the said John Hardman, who was seised of the said premises as aforesaid, the right to the said undivided moiety of the said tenements, with the appurtenances, descended and came to one other James Hardman as son and heir of the said James Hardman, the cousin and heir of the said John Hardman, the nephew of the said John Hardman, who was seised of the said premises as aforesaid; and from the said James Hardman, the son and heir of the said James Hardman, the right to the said undivided moiety of the said tenements, with the appurtenances, descended and came to James Hardman, the now demandant, as son and heir of the said James Hardman, the son of the said James Hardman, the cousin of the said John Hardman, the nephew of the said John Hardman, who was seised of the premises aforesaid. And that this is his right he the said James Hardman, the now demandant, offers suit and good proof.

SAMUEL JOSEPH CLEGG

v.

And the said Samuel Joseph Clegg, by John Whittle, his attorney, comes and defends the right of JAMES HARDMAN. the said James Hardman, and the seisin of the said John Hardman, whom, &c., and the whole, &c., and whatsoever, &c., and mostly of tenement aforesaid as of fee and right, &c. And he puts himself *663] upon the Grand Assize of our lord the King; and *prays a recognition to be made whether he, the said Samuel Joseph Clegg, has a greater title to hold the tenements with the appurtenances as tenant thereof as he now holds the same, or whether the said James Hardman has title to hold the same tenements as he has demanded the same, &c. And, for a further plea in this behalf, the said Samuel Joseph Clegg, by leave of this court here for this purpose first had and obtained, according to the form of the statute, in such case made and provided, says, that the said James Hardman ought not to have or maintain his aforesaid action thereof against him the said Samuel Joseph Clegg, because he says, that one Richard Pilkington was seised in his de

mesne as of freehold of the said tenements, with the appurtenances, amongst other things in the time of peace, in the time of the said Lord George the Second, late King of Great Britain; and the said Richard Pilkington being so seized, a certain fine was levied on Saturday, the 25th day of August, in the 33d year of the reign of the said Lord George, in his said Majesty's Court here at Lancaster, at a certain session thereof then and there holden before his then justices at Lancaster, and others then and there present, between Robert Taylor and William Longworth, gentlemen, plaintiffs, and the said Richard Pilking ton, defendant, of the tenements aforesaid, with the appurtenances, with other things, by the names of the manor of Allerton, with the appurtenances, and of 22 messuages, four cottages, one windmill, one dove-house, 22 barus, 10 stables, 20 gardens, 20 orchards, 220 acres of land, 60 acres of meadow, 220 acres of pasture, and 80 *acres of heath and ling, and common of pasture for [*664 all cattle, with the appurtenances, in Allerton, Great Woolton, Garston, Aighburgh, otherwise Aighbirth, Gressendale, Childwall, and Liverpool; and also of the moiety of five messuages, five barns, five gardens, five orchards, one dove-house, 36 acres of land, 24 acres of meadow, 55 acres of pasture, and 30 acres of heath and ling, with the appurtenances, in Aighburgh, otherwise Aigh birth, and Garston, and likewise of one-third part of one messuage with the appurtenances in Liverpool. Whereupon a plea of covenant was summoned between them in the same court (that is to say) that the said Richard Pilkington had acknowledged the manor, tenements, common of pasture, moiety, and third part, with the appurtenances, to be the right of the said Robert, as those which they the said Robert and William had of the said Richard; and those he had remised and quit-claimed from himself, the said Richard Pilkington, and his heirs to the said Robert and William, and the heirs of the said Robert, forever; and moreover the said Richard Pilkington had granted for himself and his heirs, that they would warrant to the said Robert and William, and the heirs of the said Robert, the said manor, tenements, common of pasture, moiety and third part, with the appurtenances, against him the said Richard, and his heirs, forever; and for that acknowledgment, quit-claim, warranty, fine, and agreement, the said Robert Taylor and William Longworth had given to the said Richard Pilkington 33001. sterling, which fine, levied in manner aforesaid, was engrossed, and was afterwards publicly and solemnly *read and proclaimed in the court, ac[*665 cording to the form of the statute in such case made and provided, to wit, the statute made in the thirty-seventh year of the Lord Henry VIII., late King of England, in manner following, that is to say, the first proclamation was made in the same court here on Saturday, in the said session; the second proclamation was made on Tuesday, in that same session; the third proclamation was made on Thursday, in that same session: the fourth proclamation was made in the open session, held at Lancaster aforesaid, on Monday, the 17th day of March, in the 33d year of the reign of the said Lord George the Second; the fifth proclamation was made on Wednesday, in the same session; the sixth proclamation was made on Friday, in that same session; the seventh proclamation was made in the open session, held at Lancaster aforesaid, on Saturday, the 17th day of August, in the 34th year of the reign of the said Lord the King; the eighth proclamation was made on Tuesday, in that same session; and the ninth proclamation was made on Thursday, in that same session, as by the said fine and the proclamations made therein now remaining in the court here of record more fully appears. And the said Samuel Joseph Clegg saith, at the time of the readings aforesaid, made in manner aforesaid, all pleas ceased in the said court here according to the form of the statute in such case made and provided, whereby the tenements aforesaid with the appurtenances above demanded by the said James Hardman, by reason of the said fine with proclamations made thereon as aforesaid, remained established

to the said Robert Taylor and *William Longworth, and the heirs of

*666] the said Robert, for ever; and this he the said Samuel Joseph Clegg

is ready to verify; wherefore he prays judgment if the said James Hardman ought to have or maintain his aforesaid action thereof against him.

There was a further plea, in like form, of a fine levied on Saturday, the 24th day of March, in the 4th year of the reign of George the Third, between John Walmsley, gentleman, and James Lever, yeoman, plaintiffs, and James Russell and Ann his wife, defendants, of the said moiety of the said premises; and a further plea of a fine in the 10th year of the reign of George III. between James Gildart, Esq., plaintiff, and James Russell and Ann his wife, Edmund Ogden and Mary his wife, defendants, of the said moiety of the said premises. And of a further plea of a fine, levied in the 27th year of George III. between John Addison, plaintiff, and John Pilkington, and Sarah his wife, defendants, of the said moiety; all which pleas were in the like form, and concluded, and this the said Samuel Joseph Clegg is ready to verify; wherefore he prays judg ment, if the said James Hardman ought to have or maintain his aforesaid action thereof against him, &c.

JAMES HARDMAN

v.

And the said James Hardman as to the plea of the said William Roscoe, by him first above pleaded, and WILLIAM ROSCOE. whereby he hath put himself upon the Grand Assizes, doth the like. And as to the said plea of the said Samuel Joseph Clegg, *667] *by him secondly above pleaded, the said James Hardman, saith, that by reason of any thing by the said Samuel Joseph Clegg in that plea above alleged, he ought not to be barred from having and maintaining his aforesaid action thereof against him, because he saith that the said Richard Pilkington, and Robert Taylor, and William Longworth, who were the parties to the said fine in the said second plea mentioned, had not, nor had any or either of them at the time of levying the said fine in that plea mentioned, any thing as of freehold in the moiety of the tenements, with the appurtenances above demanded, and whereof with other things the said fine is by the said second plea alleged to have been levied; but the said James Hardman, the demandant, in fact saith, that the said James Hardman, the cousin and heir of the said John Hardman, the nephew, before and at the time of levying the said fine in the said second plea mentioned, was seised of the said moiety of the said tenements, with the appurtenances above demanded, in his demesne as of fee, whose estate therein he, the said James Hardman, the demandant, now hath. And this he the said James Hardman, the demandant, prays may be inquired of by the country, &c. And as to the said plea of the said Samuel Joseph Clegg, by him thirdly above pleaded, he saith, that by reason of, &c., because, &c. (partes finis nil habuerunt, &c., tempore levatis, &c., in the same form only that the seisin is averred to be in James Hardman, the father of the demandant, whose estate J. H. now has,) and this, &c. Replication to fourth plea to like effect and in like form; replication to fifth plea to like effect, and in like form; and

*668] conclusion to the country upon cach. And the said Samuel Joseph

Clegg, as to the replications of the said James Hardman to the said second, third, fourth, and fifth pleas of the said Samuel Joseph Clegg, and which he the said James Hardman hath prayed may be inquired of by the country, doth the like. Therefore, in order to try the cause aforesaid between the parties aforesaid, to be tried by the Grand Assize; it is commanded to the sheriff that he summons by good summoners four lawful knights of his county girt with swords, that they be here on to make

election of the assize aforesaid. The same day is given to the parties aforesaid o hear the election of the assize aforesaid, &c. And in order to try the several issues above joined, to be tried by the country, the sheriff is commanded that he cause to come here on twelve, &c., by whom, &c., and who neither, &c., to recognize, &c., because as will, &c.

LANCASTER ASSIZES, 57 GEORGE III.

HARDMAN, Demandant'

v.

CLEGG, Tenant.

A rule Nisi to obtain judgment, as in case of a nonsuit, was afterwards obtained in the following form;-The first day of April, 1817, upon reading the affidavit of George Todd, it was ordered by the court, that the tenant in this cause be allowed such costs as the Prothonotary of this court, or his deputy, shall tax in his behalf, by reason of the demandant not having proceeded to the trial of some of the issues in this cause at these assizes, pursuant to

the course and practice of this court, unless good cause be shown to the [*669

contrary at the sitting of the court on Saturday next.

By the court. On motion of Mr. Richardson upon showing cause, this rule was discharged; and at March Assizes, 1817, the following rule was entered into by consent.

LENT ASSIZES, 57 GEORGE III.

HARDMAN, Demandant

v.

The 26th day of March, 1817, upon reading a former rule made in this cause the 25th day of CLEGG, Tenant. March instant, and upon hearing counsel on both sides, and by consent of the parties, their counsel and attorneys. It is ordered by the court, that the tenant be at liberty to issue a writ of summons, returnable on the first day of the present assizes, commanding the sheriff to return four knights to appear here in court at the return of the said writ, to choose the Grand Assize; and that their appearance be duly recorded according to the exigency of the said writ: and it is further ordered by the like consent, that 20 jurors, to be taken by the under sheriff out of the jury panel, be returned for the trial of causes at the next assizes, and be considered as the recognitors chosen by the said four knights, or if any or either of them should not appear at the next assizes, the under-sheriff shall be at liberty to supply the places of such of them as shall so make default with an equal number of the gentlemen attending the grand jury at the next assizes; and the names of the gentlemen so supplied, together with the rest of the said four [*670 knights, and with twelve of the said 20 jurymen, so to be taken by the under-sheriff as aforesaid, shall form the Grand Assize between the parties; but the names of the four knights now to be returned, shall, nevertheless, be entered upon the record as the four knights forming the Grand Assize by the court.

The tender
It was ob-

At the Summer Assizes of 1817, this cause came on to be tried. of the demy mark was made before the Grand Assize was sworn. jected on the part of the demandant, that the tenant could not, by making the tender at this stage of the cause, call upon the demandant to begin his case: for that purpose the tender ought to have been made at the joinder of the Mise. Viner's Abridg. T. Droit. D. 13,

WOOD, Baron, ruled that the tender of the demy mark, before the swearing of the assize, was sufficient to put the demandant to show the seisin of the

ancestor.

The assize was then sworn to inquire of this seisin. John Piers, a witness for the demandant, had lived at Allerton 68 years, knew John Hardman (the ancestor;) all Allerton belonged to him, except about 70 acres. He was buried at St. George's church at Liverpool. After his death, Pilkington and Russell had it in moieties; Russell sold to Ogden, and Ogden to Clegg, the father of the tenant. The witness then described the different closes in the possession of Clegg, and the number of acres in each, [*671

and the farm-houses on the same cross examined. He never saw any rent of these tenements paid to John Hardman, who had been dead many years before he came to the farm. Re-examined.-Clegg said, that he gave 14,500l. for the half of Hardman's estate. Joseph Swift, born at Allerton, aged 76 years-Clegg had about 32 acres; the witness's father held of John Hardman. Cross-examined.-Never saw any rent paid to Mr. Hardman, but has heard his father speak of Mr. Hardman's being his landlord. The register of the burial of John Hardman, and the teste of the writ, were then read. Here it was objected for the tenant that the evidence did not support the writ and count, the evidence being that John Hardman was seised of the whole.

Mr. Baron Wood over-ruled this objection, and a verdict was found that the ancestor was seised. The Grand Assize were then sworn to try the truth, whether the demandant or tenant had right; and were also sworn to try the issue joined between the parties. For the tenant, the case was opened by stating that the evidence to show that the parties to the fines pleaded were seised, at the time of levying them, would be first entered into, in order to shorten the case, and likewise to save the necessity of going into the pedigree. That upon the death of the purchaser John Hardman, Pilkington had entered as his heir, through one of the sisters of the purchaser's grandfather; and that he levied a fine of the whole, but afterwards gave up a moiety to Russell, the de*672] scendant of another sister of the grandfather, when he appeared and claimed. That Pilkington, before he levied the fine, had been in receipt of the rents which was sufficient to give effect to the fine.

The evidence adduced in support of this, was a counterpart of a lease by Pilkington to the widow of James Hardman (the purchaser of the other moiety of the estate with John Hardman) of Allerton Hall and Garden, for 50 years, if she should so long live, at a pepper-corn rent, which appeared to be sealed by the widow Hardman. Objected, this does not include Clegg's property. Jonathan Smith called; said, he remembered J. Hardman and his death, and the death of his nephew; he remembers that Pilkington came to take possession; he turned the witness's family out of the house, but kept them out only a short time. They held a long lease at a lord's rent. A lease from Russell to the widow Hardman in 1767, and from Russell and Ogden to her in 1770, of Allerton Hall and Garden, were then put in. Pilkington, the grandson of the said Pilkington, was then called. He remembered his grandfather and father going to Allerton to take possession in 1759, but he did not go with them. They used to go twice a year to Allerton, in order to receive rents, but he did not go with them; his father died in 1768. He remembered being present when one moiety of the rents was received in 1773. He joined as heir-at-law of his grandfather, in levying the fine in 1787. Upon this evidence the Grand Assize, under the direction of his lordship, who held it sufficient evidence of the seisin of John Pilkington for his fine to operate as a bar, found a verdict for the tenant.

*673]

Hullock, Serjt., Cross, Gardner, and Parke, for the defendant.

Scarlett, Littledale, and Richardson, for the tenant.

REPORTER'S NOTE.

The course which the court took upon the tender of the demy mark, was upon the authority of the 514th section of Littledon. Booth on Real Actions, p. 98, makes a quære, "What is the true reason of this tender of the demy mark?" and he refers to a record, which he afterwards sets forth in page 102, where the tender of the demy mark is entered upon the record, and is expressed to be, to the end that it may be inquired as to the time, &c. Now it is apprehended, that this payment of the demy mark in court to the use of the king, is agreeable to that ancient usage, by which parties, in certain cases, obtained the indulgence of departing from the strict course of the court, by paying a sum of money to the use of the king. The king's silver, which is paid upon the levying a fine, probably originated in the same ancient practice, the money being paid pro licentia concordandi. See de modo levandi fines, 18 Edw. 1; and 2 Inst. 511.