and his heirs, and died without issue; whereby the premisses descended to the daughters of John Lewis, (who were also heirs to Edward) who entered, and were seized; and marrying the said Earls, they entered, and were seized in right of their wives. And that, 20th July, 1680, administration to Burroughs, the surviving connusee of the 5000l. statute, was committed to Anne, wife of the defendant Grenville, as to that statute, and the extent thereon; and that Grenville's wife was also administratrix of Gerrard the second connusee, and she and her husband, 31st July, 32 Car. II. 1680, acknowledged satisfaction on that statute, which was thereupon vacated; and that defendant, in right of his wife, administratrix to Burroughs, 28th September, 34 Car. II. 1682, entered upon the said Earls into the Premisses, and was possessed.
This special verdict was several times argued, and in Easter Term, 1688, 4 Jac. II. judgment was given by the then Chief Justice Wright for defendant; and the Earls thereupon brought a writ of error in the Exchequer Chamber, where the matter was many times argued; and in Trinity Term, 1690, the judgment of the King's Bench was reversed by the opinions of six Judges, namely, Chief Justice Pollexfen, Chief Baron Atkins, Justices Ventris and Rokeby, Baron Lechmere, and Baron Turton, against two, namely, Justice Powell, (deceased) and Justice Nevill (2 Vent. 321); and thereupon the Earls went back into the King's Bench to have execution of the judgment pronounced in the Exchequer Chamber, which the Judges refused to award, by reason of an alleged mistake in the writ of error; the writ saying, (because in the record and process, and also in giving judgment of a plaint which was before the late King Charles;) whereas it should have said, (because in the record and process of a plaint which was before the late King Charles, and in giving judgment on the same plaint before the late [66] King James;) the action being brought in King Charles's time, and the judgment given in King James's: And upon this the Earls were forced to bring a new writ of error, whereon the judgment of the King's Bench was afterwards affirmed for Mr. Grenville in the Exchequer Chamber; there being three Judges for reversing, to wit. Justice Rokeby, Baron Lechmere, and Baron Turton, and three for affirming, namely, the Chief Justice Treby, Justice Nevill, and Justice Powell; so that a majority being required to reverse the judgment, it was of course to stand: Sir Robert Atkins, whose opinion was with the Earls, having a few days before surrendered his place. And plaintiffs stated, that the question, which arose upon this special verdict was, whether the estate and interest, by the extent on the 5000l. statute, was barred by the fine levied by Edward Lewis, and five years non claim? for that the interests of the extents on Knight's and Gerrard's statutes, being vested in Edward Lewis, and the inheritance afterwards coming to him, the estates, by virtue of those extents, were drowned in the inheritance, and extinguished by the fine which he levied; and the extent on the 5000l. statute, claimed by Grenville, coming to take place when the extent on the two former prior statutes were removed, and no claim nor entry being made, by virtue of the last extent, within five years after the fine, the interest by that extent was, as insisted upon, thereby absolutely barred, in order (as plaintiff stated) to remedy which Mrs. Grenville procured letters of administration to herself of Gerrard's personal estate, and then acknowledged satisfaction of his statute; the interest whereof, it was contended, was long before drowned and extinguished, and thereby pretended to get a new right to enter into the premisses, by virtue of the extent on the 5000l. statute; and whether Mrs. Grenville should have five years more to make her claim, after her own acknowledging satisfaction on Gerrard's statute, which had, as was alleged, been discharged before by the extent being drowned in the inheritance, was, as plaintiff contended, the main question in this cause; but plaintiff insisted that Mrs. Grenville could not, by the acknowledging satisfaction on Gerrard's statute, gain any new right to enter to avoid the fine above nine years before, inasmuch as an entry might, and then should have been made into the extended estate. And plaintiff contended, that the contrary [67] opinion would tend much to weaken the security of a fine and non-claim; and that it would be of pernicious consequence to purchasers and owners of estates, if such old dormant incumbrances could be at any time set up against a fine and non-claim, and so supported by vacating a statute, the interest of which was long before
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