Ca. K. B. 247. 253. 4 Co. 87. Ventr. 355 Rex. Larwood A new charter was granted in confideration of the fur render of the old one; the old one was in fact furrendered, but the furrender was not inrolled, wherefore the new one was void but the members under both charters being the fame, what they did being warranted by the old charter was holden. good. By accepting a new charter, granting new rights, or giving a new name of incorporation, without a furrender of their old charter, the corporation will not lofe any of their former franchifes. By charter of H. 4. Narwich was made a county, and to have two fheriffs to be chofen by the commonalty. Car. 2. by charter confirmed their former charter, but granted further that one fheriff fhould be chofen by the mayor, fheriffs and aldermen only; per Holt Ch. Juft. The king cannot resume an interest he has already granted, unless the grantees concur; the corporation might have ufed this as a new grant or conArmation, but having made their elections according to it, it is evidence of their confent to accept it as a grant. PART PART V. Containing ONE BOOK. Of Traverfes and Prohibitions. INTRODUCTION. HERE ftill remain two other fpecies of fuits which may TH be tried at Nifi Prius, and which therefore fall within the compafs of this treatife; and they are traverfes of inquififitions of office, and prohibitions. CHAP Ryal and Rowles, H. 23 G. 2. in Canc. Hartop and Hoare. 1 P. W. 318. By 1 Jac. c. 15.. 5. it is enacted, that if any perfon, who fhall afterwards become a bankrupt, fhall convey or cause to be conveyed to any of his children, or other perfon, any lands or chattels, or transfer his debts into others mens names except upon marriage of any of his children, (both the parties married being of the years of confent) or fome valuable confideration, the commiffioners may convey or difpofe thereof the fame as if the bankrupt had been actually feifed or poffeffed, and fuch fale or difpofition of the commiffioners fhall be good against the bankrupt, and fuch children and perfons, and all other claiming under them. The 21 Jac. 1. c. 19. f. 11. recites, that many perfons before they become bankrupts convey their goods upon good confideration, yet ftill keep the fame, and are reputed owners thereof, and difpofe of the fame as their own; and therefore enacts, that if any perfon fhall become bankrupt, and at fuch time fhall, by the confent and permiffion of the true owner, have in their poffeffion, order and difpofition, any goods or chattels, whereof they fhall be reputed owners, the commiffioners may difpofe of them for the benefit of the creditors. Upon this clause it has been holden, that poffeffion of lands being no proof of title as poffeffion of goods is, a mortgagor continuing in poffeffion is not within this claufe if he deliver up the title deeds: but a mortgage of goods, where poffeffion does not go along with the fale, is within it, unless it be a chofe in action, and there, as poffeffion cannot be delivered, delivery of the muniments and means of reducing it into poffeffion is fufficient: for the delivery of the muniments is in law a delivery of the thing itself; as a delivery of the key of a warehouse is a delivery of the goods in it; but things fixed to the freehold, till feparated, are part of the freehold, and therefore of them a mortgage will be good without a delivery. Note; there may be a delivery from one parcener to another, or of things in parcenary to a third perfon. Goods left in the bankrupt's poffeffion for fafe cuftody only feem not to be within this claufe.-So goods left with the bankrupt to fell for one who deals by commiffion, can gain no credit by his vifible ftock. By the ftatute of frauds, all devises of land must be in writting, and figned by the party devifing the fame, or by fome other 2 perfon ferve him. But in traverfes at common law the party is in nature of a defendant, and therefore need not fet up any title in himself. The method of proceeding at common law by petition was that the king's title being found by inquifition, the party petitioned to have an inqueft of office to inquire into his title; if his title was found by fuch office, then he came into court and traverfed the king's title: fo that the record began by setting out the first inquifition found for the king, after that the return of the inquifition taken upon the petition, and then went on with et modo ad hunc diem venit and fo traverfed the king's title. In conformity to thefe proceedings at common law, the traverse and monftrans de droit given by the ftatute begin by ftating the inquifition, and then go on "et modo ad hunc diem venit, &c." (Note; the only difference between the pleading in a traverfe and monftrans de droit is, that one is pro placito dicit, the other pro placito et monftratione juris dicit.) Rex. Roberts, E. 17 G. 2. And from this manner of pleading, fome have confidered the party traverfing as defendant; but when it is confidered that this traverse comes in lieu of the petition at common law, and that it does not fufpend the vesting in the king by the inquifition, and that the judgment for the party is an amoveas manum, and the judgment against him a nilcapiat, it seems clear he ought to be deemed a plaintiff, and as fuch is capable of being nonfuited. These proceedings are in the petty bag-office, and the record is brought from thence into the king's bench by the 652. chancellor, in order that it may tried. It is not clear, that a perfon found by inquifition to be a lunatick or ideot, can himself traverse the inquifition; however it is certain, that such traverse will not fufpend the grant of the cuftody thereof. The practice has always been for the party to petition the chancellor for leave to traverfe, and then the chancellor will upon proper grounds give fuch leave, and fufpend the grant of the cuftody in the mean time. Salk. 448 4 H. 6. 12. Trem. P. C. Sir J. Cutt's Cale, 10 Ana. in Chanc. And it is not uncommon to grant fuch leave upon terms, Rex v. Roberts, fuch as upon condition that fome third perfon who claims under 4 Nov. 1743. conveyances from the party, will agree to be bound by the event of the traverse. And this is much for the advantage of fuch third perfon, for though he would be entitled to come in and traverse the inquifition pro intereffe fuo, yet he must do that at 2 Inft. his own expence; whereas where leave is given for the party to traverse, the expence must be paid out of the eftate; befides it comes with lefs prejudice before the jury when the chancellor fo far countenances the traverfe, as upon infpection and enquiry to give leave for it to be carried on at the expence of the party against whom the inquifition has been found. But befide thefe inquifitions of office in which the king is concerned, there are others which may likewife be traversed by the parties interefted; fuch is the inquifition taken on the writ of noctanter, which is given by Wefiminfter 2. c. 26. where any one having a right to approve wafte ground makes a hedge or a ditch, and it is thrown down in the nighttime, the neighbouring vills fhall make it good at their own expence, in cafe they do not indict fuch as are guilty, and for that purpose this writ commands the fheriff 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 diftringas to the fheriff, to diftrain the neighbouring vills to make new hedges and ditches at their own expence, and also to restore the damages, and upon this distringas the defendants may come in and traverse the fact of the inquifition, or they may plead that fome of the offenders have been indicted, or traverfe that the party fuftained da2 L. Abr. 217. mages to the fum found: But in other cafes of writs of enquiry of damages the party cannot traverfe the quantum of the damages found, because he has confefled himself liable by letting judgment go against him; befides he may give evidence on the writ of enquiry, because he is before the court; but in this cafe the writ of enquiry is founded upon the return of the first inquifition, and the parties are never before the court till they are fo brought by the diftringas, therefore have had no previous opportunity of controverting the matter. СНАР |