The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.

Attorny General versus Alston.

AN Inquisition upon an Accompt stated went out to inquire what Lands one Havers had in the twentieth year of this King, or at any time since, he being the Receiver General in the Counties of Norfolk and Huntingdon.

The Iury found that he was seised of such Lands, &c. where∣upon an Extent goes out to seise them into the Kings Hands, for payment of 1100 l. which he owed to the King.

Alston the Ter-tenant pleads that Havers was indebted to him, and that he was seised of those Lands in 20 Car. 1. which was before the Debt contracted with him, and that he became a Bank∣rupt likewise before he was indebted to the King, and thereup∣on these Lands were conveyed to the Defendant by assignment from the Commissioners of Bankrupcy, for the Debt due to him from Havers, absque hoc that he was seised of these Lands at the time he became indebted to the King.

The Attorny General replies, That he was seised of these Lands before the Commisson of Bankrupcy issued, and before he be∣came a Bankrupt, and that at the time of his Seisin he was Receiver, and accountable for the receipt to the King, and being so seised in the 20the year of this present King, he was found in Arrear 1100 l. for the payment whereof he was chargeable by the Statute of the 13 Eliz. cap. 4. Which subjects all the Lands of a Receiver which he hath or shall have in him during the time he remains accomptable, and so prays that the Kings Hands may not be amoved: To this the Defendant demurred.

And Sawyer for him held, that the Replication was ill both in form and Substance.

1. It doth not appear that the Defendant continued Receiver from the time he was first made, as it ought to be, or else that he was Receiver during his Life; for if a Man is Receiver to the King, and is not indebted but is clear, and sells his Land and ceases to be Receiver, and afterwards is appointed to be Receiver again, and then a Debt is contracted with the King, the former Sale is good.

2. The Replication is a departure from the Inquisition, which is the Kings Title, for the Lands of which Inquiry was to be made, were such which Havers had 20 Car. 2. And the De∣fendant shews that Havers was not then seised thereof, but makes

a good Title to himself, by Indenture of Bargain and Sale made to him by the Commissioners of Bankrupcy, and so the Attorny General cannot come again to set up a Title prece∣dent to the Defendant, for that is a departure; 'tis enough for the Defendant that he hath avoided the Kings Title, as alledged; and though Mr. Attorny is not bound to take Issue up∣on the Traverse, yet he cannot avoid waveing both the Title of the Defendant and the King, by insisting upon a new matter.

It was agreed, That the King had two Titles, and might either have brought his Inquisition grounded upon the Debt stated, or upon the Statute of the 13th of Eliz. upon Ha∣vers his becoming Receiver; but when he hath determined his Election, by grounding it upon the Debt stated, he cannot af∣terwards have recourse to the other matter, and bring him to be liable from the time of his being Receiver; as if an Inqui∣sition goes to inquire what Lands the Debtor of the King had such a day when he entred into a Bond, if there be an answer given to that, Mr. Attorny cannot afterwards set up a precedent Bond, because 'tis a departure, and the Statute it self vests no Estate in the King, but makes the Receivers Lands lyable as if he had entred intred into a Statute Staple.

The Inquisition therefore should have been grounded upon the Statute, and then the Defendant might have pleaded the Act of Indempnity, of which he might have the benefit, but if not he may be let into the Equity of the Statute of the 33 H. 8. cap. 39. which gives liberty to Purchasers to have contribution, and to plead sufficient matter if they have any in discharge of the Debt.

But on the other side it was said that the Replication was good, for if the Sale was after his being Receiver, though before he became indebted, yet by the Statute of the 13 Eliz. the Lands are subject to a Debt contracted afterwards, because it hath a Retrospect to the time he was first Receiver.

By the Common Law both the Body and Lands of the Kings Debtor were lyable from the time he became indebted; but because such Debtors oftentimes sold those Lands which they had whilst they were Officers, and so the King was defeated, therefore was this Statute made to supply that defect of the Common Law, by which Statute all the Lands he had at any time during his continuance in the Office were made lyable.

And though it may be objected, That because of this Inqui∣sition the King is limited to a time, Viz. that inquiry should be

made what Lands Havers had in the 20th year of the King, yet it was said the Inquiry may be general.

The Elegit anciently left out the time, because the Law doth determine from what time the party doth become lyable; so that the question is about the King's Title, which if it appear to precede that of the Ter-tenant, then the King's Hands are not to be amoved; and thereupon Iudgment was prayed for him, Bro. Prerogative 59. Curia adversare vult.

Notes

• Where the Kings Title is not pre∣cedent to that of the Ter-te∣nant, the Lands of his Receiver shall not be liable by the Statute of the 13th Eliz.
• Ex parte Quer.
• Pl. Com. 321. Dyer 160.