their former charter, but granted further, that one sheriff should be chosen by the mayor, sheriffs, and aldermen only; per Holt, C. J. The king cannot resume an interest he has already granted, unless the grantees concur; the corporation might have used this as a new grant or confirmation, but having made their elections according to it, it is evidence of their consent to accept it as a grant.-Rex v. Larwood, H. 6 W. IIL Salk. 167. PART PART V. CONTAINING ONE BOOK OF TRAVERSES AND PROHIBITIONS. INTRODUCTION. THERE still remain two other species of suits which may be tried at Nisi Prius, and which therefore fall within the compass of this treatise; and they are Traverses of Inquisitions of office, and Prohibitions. CHAPTER I. OF TRAVERSES. THERE are two sorts of offices; the one vests the estate and possession of the land, &c. in the king where he had only right or title before. The other is when the estate is law fully in the king before, but the particularity of the land does not appear of record, so that it may be put in charge. The first of these is called the office of intituling; the second is called the office of instruction.-Legat's Case, M. 10 Jac. I. 10 Co. 115. (a) By the common law, wherever the king was in possession by virtue of the inquisition, the subject was put to his petition of right, unless the right of the party appeared in the inquisition, and then at the common (a) The traverse of an office is only the proving that an inquisition made of lauds or goods by the escheator is defective and untrue. No person therefore shall traverse an office unless he can shew a good title, and if one be admitted to traverse an office, this admission of the party to the traverse supposes the title to be in him, or he has no cause of traverse. Vaugh. 641. 2 Lill. Ab. 590. Offices however are not the only matters that are traversable, for in pleading, many subjects of traverse are to be found, so indictments and presentments are traversable, but as the text is for the most part confined to the traverse of offices, the Editor deems it unnecessary to enlarge his notes on this title. law [215] law he might have a monstrans de droit; but where the inquisition only intitled the king, and he was obliged to bring a sci. fa. against the party to recover possession, there at common law the party might traverse the king's title, for there the king being in nature of a plaintiff, the party in possession might by pleading put him to prove the title upon which he would recover. But where the king was in possession by virtue of the inquisition, there the party that would get that possession from him was in nature of a plaintiff, and therefore had no method to proceed in but by way of petition; for no action could lie against the king, because no writ could issue, as he could not command himself.-Warden & Commonalty of Sadler's Case, T. 30 Eliz. 4 Co. 54. But as this suit by petition was of great delay and charge to the party grieved, the statutes of S4 Ed. III. c. 14, 36 Ed. III. c. 13, and 2 & 3 Ed. VI. c. 8, were made to enable the subject to traverse inquisitions, or otherwise to shew their right. Thus were traverses and monstrans de droit introduced in lieu of petitions. (3 Hen. VII. 3.) The only difference between the one and the other is, that m a traverse the title set up by the party is inconsistent with the king's title found by the inquisition, which he therefore must traverse; in a monstrans de droit he confesses and avoids the king's title. But in both cases he must make a title in himself, (a) and if he cannot (a) Where the inquisition is to give a title to the crown to lands in the possession of another, the crown is in the nature of a plaintiff; but the defendant cannot defend himself upon his possession alone, but must shew a title in himself by traversing the inquisition. In this case the usual practice is for the crown to open the pleadings, including the inquisition, and then the traverser is called upon to go into his case, and to support his traverse. Ols. The issue upon the seisin returned in the inquisition is taken differently either upon the scisin returned, or the crown, by replication to the plea of traverse of seisin, may admit the deed set up by the plea in bar, and traverse by the replication, that the deed was fair and for valuable consideration; and the only difference seems to be, that where the seisin is traversed alone, the due execution of the deed is put in proof. Where the king sues upon a forfeiture, he can only have what the party had at the time; otherwise, where the crown is a creditor, for there the title commences from the title which binds the property. 1751. Rex v. Cotton, 2 Ves. 296. Traverse of a seisin in fee is ill, where a less estate would be sufficient, for it ties up the plaintiff to prove an estate in fee. Palmer v. Ekins, 2 Stra. 818. Vide etiam Colborne v. Stockdale, 1 Stra. 493. Where a party confesses and avoids, he ought not to traverse, but it may be passed over, and issue taken on the traverse. R. v. Armagh Archbp. and Whaley, Clerk, 2 Stra. 837. The substance and body of a plea may be traversed. Digby v. Fitzherbert, Hob. 232. But a traverse, that A. died scised of lands in fee, modo et forma, as the defendant had declared, was held good. Edwards v. Lawrence, Hutt. 123. prove his title to be true, although he be able to prove that the king's * title is not good, it will not serve him. (Stamf. Prerog. c. 20. [*216] pa. 65.) But in traverses at common law the party is in nature of a defendant, and therefore need not set up any title in himself.-Rex v. Mason, T. 1 Ann. 2 Salk, 447. Far. 32. S. C. The method of proceeding at common law, by petition was that the king's title being found by inquisition, the party petitioned to have an inquest of office to inquire into his title; if his title was found by such office, then he came into court and traversed the king's title: so that the record began by setting out the first inquisition found for the king, after that the return of the inquisition taken upon the petition, and then went on with et modo ad hunc diem venit, and so traversed the king's title. In conformity to these proceedings at common law, the traverse and monstrans de droit given by the statute begin by stating the inquisition, and then go on "et modo ad hunc diem venit, &c." (Note; the only difference between the pleading in a traverse and monstrans de droit is, that one is pro placito dicit, the other pro placito et monstratione juris dicit.) And from this manner of pleading, some have considered the party traversing as defendant; but when it is considered that this traverse comes in lieu of the petition at common law, and that it does not suspend the vesting in the king by the inquisition, (Rex v. Roberts, E. 17 Geo. II. Stra. 1208.) (a) and that the judgment for the party is an umoveas manum, and the judgment against him a nil capiat, it seems clear he ought to be deemed a plaintiff, and as such is capable of being nonsuited.-Rex v. Mason, T. 1 Ann. Salk. 448. 4 Hen. VI. 12. These proceedings are in the petty bag-office, and the record is brought from thence into the king's bench by the chancellor, in order that it may be tried.-Trem. P. C. 652. (b) (a) In this case it was said, that the traverse of an inquisition for the king is considered as a debt, and the prosecutor may carry down the record. (b) In traverse these rules are to be observed: 1. That the traverse of a thing, not immediately alledged, vitiates a good bar: 2. That nothing must be traversed, but what is expressly alledged: 3. That surplusage in a plea doth not enforce a traverse: 4. That it must be always made to the substantial part of the title: 5. That where an act may indiffe rently be intended at one day or an- It is not clear, that a person found by inquisition to be a lunatick or idiot, can himself traverse the inquisition; (Sir J. Cutt's Ca. 8 Jac. I. Ley. 26.); however it is certain, that such traverse will not suspend the grant of the custody thereof. (Ex parte Smithie, 1728.) The practice has always been for the party to petition the chancellor for leave to traverse, and then the chancellor will upon proper grounds give such leave, and suspend the grant of the custody in the mean time.-Sir J. Knaper's Ca. 10 Ann. And it is not uncommon to grant such leave upon terms, such as upon condition that some third person who claims under conveyances from the party, will agree to be bound by the event of the traverse. And this is much for the advantage of such third person, for though he would be entitled to come in and traverse the inquisition pro interesse [*217 ] suo, yet he must do that at * his own expence; whereas where leave is given for the party to traverse, the expence must be paid out of the estate; besides, it comes with less prejudice before the jury when the chancellor so far countenances the traverse, as upon inspection and enquiry to give leave for it to be carried on at the expence of the party against whom the inquisition has been found.-Rex v. Roberts, M. 1743. in Canc. But beside these inquisitions of office in which the king is concerned, there are others which may likewise be traversed by the parties interested; such is the inquisition taken on the writ of noctanter, which is given by Westminster 2. 13 Ed. I. st. 1. c. 46, (a) where any one having a right to approve waste ground makes a hedge or a ditch, and it is thrown down in the night-time, the neighbouring vills shall make it good at their own expence, in case they do not indict such as are guilty, and for that purpose this writ commands the sheriff to inquire into the truth of the fact, and who did it; and if the jury return that they are ignorant who did it, the return being filed in the crown-office, there goes out a writ of enquiry of damages and distringas to the sheriff, to distrain the neighbouring vills to make new hedges and ditches at their own expence, and (a) By the better opinion, this writ lies for the prostration, as well of all inclosures, as those improved out of commons; but if it be not in the night, this writ will not lie, and there ought to be a convenient time (which the court will judge of) before the writ is brought for the county to enquire of, and indict the offenders, which, Lord Coke (in 2 Inst. 476,) says, should be a year and a day. Vide Rer v. Epworth Inhabitants, Cro. Car. 440. 1 Kebl. 545. If, however, any of the offenders be indicted, that must be pleaded by defendants. also |