1695, almost six years after defendant had been in possession of the office, the assize was begun in the county of Kent, before the [73] Judge of Assize there, and that a special verdict was given as stated by defendant; and upon the argument before three judges there, two of the judges were for the plaintiff, and one for defendant; upon which judgment was given for plaintiff. And that upon the argument of the writ of error brought into the King's Bench, all the four judges there gave judgment for the reversal of the judgment in the Common Pleas; and defendant insisted, that the judgment given in the King's Bench, ought to be affirmed, because this office was made a freehold by the late act, or otherwise a writ of assize would not lie; and that the deputation of the plaintiff, by the Earl of Winchelsea in writing, was void, being contrary to the late act, which expressly appoints the Clerk of the Peace to hold so long as he shall well demean himself; and plaintiff's written deputation being only during the Earl's pleasure; and contended, that all offices of freehold (except such as have been time out of mind, or by custom) must pass by deed, and that Clerks of the Peace, before and since the late act, have been appointed by deed, and not otherwise. And further, that if a grant, or other title, be found in a special verdict by dead, and also by parole from the same person, and at the same time, the words must be understood according to the sense and meaning of the deed, and should not be taken to destroy the deed; and moreover, that the parole nomination was not pursuant to the set, the same being uncertain, and not in the manner as such nominations (if allowable by word of mouth) ought to be. (N. Wright. B. Shower.)
Die Lunæ, 3 April, 1699, after hearing council upon this writ of error, it was ordered and adjudged by the Lords, That the judgment given in the King's Bench for the said Robert Saunders, should be reversed, and the judgment given in the Court of Common Pleas be affirmed, and the record remitted. Lords Journ. vol. xvi. p. 432. (Vid. 5 Mod. 386. Salk. 467. 3 Salk. 200. Carth. 426. Comb. 317. Ld. Raym. 158. 12 Mod. 199. Lilly's Ent. 278. Lilly Aff. 15, 75, the Record 89. Vin. iii. 420. iv. 543. xiii. 170. xiv. 30, 53, 123, 127. xvi. 129, 443. pl. 18.)
Note—Owen died within two or three days after this judgment given in Parliament.[1]
[74] Case 15.—Joshua Woodman,—Plaintiff; George Willoughby, and Joanna his Wife, and Margaret Taylor,—Respondents [1699].
Die Jovis, 14th January, 1691.
On hearing council on the petition and appeal of Amy Barton, George Willoughby and Joanna his wife, and William Taylor and Margaret his wife, from a decree of the Court of Chancery, made the 21st of March last (1690) in certain causes there depending between Joshua Woodman, executor of Frances Dennis, widow, by bill of reviver against Robert Blake and Elizabeth his wife, Amy Barton, widow, and Joanna Badd (then) the wife of George Willoughby, Gent. Margaret Badd, (then) the wife of William Taylor, John Sturmy, Gent. and Mary his wife. and between the said Robert Blake and Elizabeth his wife, plaintiffs, and Thomas Sackville, Esq. Amy Barton, said Joanna and Margaret, John Sturmy and Mary his wife, and said John Woodman, defendants; and due consideration had, it was ordered by the Lords, that the said decree of the Court of Chancery should be reversed; and Woodman, having petitioned the Lords to rehear the appeal, the respondents (who were the original appellants) made this case: Sir Thomas Badd had issue five daughters, Elizabeth Blake, Amy Barton, Frances Dennis, Joanna Willoughby and Margaret Taylor; and by lease and release, 16th and 17th May, 1682, conveyed his manor of Cames in Hampshire, to Edward, Earl of Ganesborough, and Thomas Sackville, Esq. (both deceased) and their heirs, to the use of himself for life, remainder to Dame Joan, his wife, for life, remainder to the Earl, and Sackville, and their heirs, upon trust, that they should, after the death of Sir Thomas and Joan, sell the same, and divide the money arising thereby equally
- ↑ 1 Lord Raym. 166.
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