brown case John Leyburn uvitham plaintiff george lewis on they edward earl of  derby defendant in error that April the award of a writ of seize on a recovery  with its execution and return by the sheriff must appear upon record and if a  writ of execution be not find in a special verdict it can be presume by the  court and a venire facias de to make new shall not be award Lord Kenyon in the  case Goodright d Burtenshaw v rigby term Rep king b observe that this have  always be consider as a strange case a writ of seize never be in fact execute  see also stat Geo c judgement of the court of king b affirm strange will the  earl of Derby bring his ejectment in the name of George Lewis the defendant in  error against the plaintiff in error in the court of king bench for a message  and land in Witherstack in the county of Westmorland whereupon issue be join  the cause be try at the assize hold at Appleby in the year by a jury of  gentleman when a special verdict be find to the effect follow videlicet that  king Henry VII be seize in fee in right of his crown of the manor of  Witherstack of which the premise in question be parcel on the that of February  in the four year of his reign by letter patent grant the say manor and the  premise in question to Thomas Stanley then earl of Derby and the heir male of  his body that by virtue of this grant earl Thomas enter and be seize and have  issue George Lord strange who die in the lifetime of his father leave issue  Thomas that earl Thomas the grantee die seize whereby the premise in question  descend to his grandson Thomas earl of Derby that this earl Thomas enter and  be seize of the premise in question and in Hilary term Henry VIII suffer a  common recovery wherein James bishop of Ely Hugh bishop of sodor and man and  other great person be demandant and the say Thomas earl of Derby tenant who  vouch to warranty one Thomas fish the common vouchee and that such proceed be  thereupon have that judgement be give that the say bishop of Ely and other the  demandant shall recover their seize of the premise in question against the say  Thomas earl of Derby the grandson and that the say Thomas earl of Derby the  grandson shall have of the land of the say Thomas fish of the value etcetera  and that the say Thomas fish brown er p shall be amerce that after the say  common recovery earl Thomas the grandson enter into the premise and be seize  thereof as the law require and have issue male of his body Edward his old son  and afterward die so seize whereby the premise descend to his say son Edward  then earl of Derby who enter brown and be seize thereof as the law require  that the premise in question descend from he in a lineal descent to Ferdinand  earl of Derby who enter and be seize and die so seize without any issue male  of his body in the lifetime of his brother William but that he leave three  daughter Ann Frances and Elizabeth the jury further find that diverse dispute  and difference arise between earl William and the daughter of his brother  Ferdinand concern the estate of the family to compose those difference a act  of parliament be make James I by which inter alian it be enact that earl  William for his life and after his death James his son and heir apparent and  the heir male of his body and in default of such issue the second three four  five six and seven son of earl William and the respective heir male of their  respective body successive and in default of such issue sir Edward Stanley  during his life and after his decease his first second three four five six and  seven son and the heir male of their respective body successive and in default  of such issue Edward Stanley of Bickerstaff during his life and after his  decease his first second three four five six and seven son and the heir male  of their respective body successive shall and may from thenceforth hold and  enjoy the premise in question that in this act there be contain a power for  earl William sir Edward Stanley and Edward Stanley respective after they shall  be in the actual possession of the estate to they limit to make jointure for  their respective wife or old son wife and also a proviso which save all right  interest reversion etcetera to the crown in the same manner and form and to  all intent and purpose as if that act have never be make that the premise in  question be parcel of the estate by the say act settle that after the death of  earl William and James his son the promise in question descend to earl Charles  grandson of earl William that earl Charles in consideration of pound S by  feoff and bargain and sale enrol both bear date the that of January and by  fine with proclamation levy in Michaelmas term convey the premise to John  leybourn in fee who enter and be seize and under who the plaintiff in error  claim title that earl James the son and earl Charles the grandson of earl  William die without issue male that sir Edward Stanley in the say act of  parliament mention be also dead without issue that Edward earl of Derby the  lessor of the plaintiff in ejectment be heir male of the body of Edward  Stanley of Bickerstaff also mention in the say act and by the death of James  earl of Derby in the year become and be heir male of the first name Thomas  earl of Derby the grantee of the crown that earl Edward on the that of January  make a actual entry into the premise in question claim the same as his estate  and freehold and afterward on the that of the same month demise the same to  the say George Lewis who enter and be possess thereof and upon these brown  fact the jury submit the matter of law to the judgement of the court upon the  trial of this cause the recovery suffer Henry VIII be give in evidence and no  objection be they make to it as the only doubt which occasion the find of the  special verdict be whether the entry of the defendant in error be lawful or  not and this depend upon the general question whether notwithstanding the  recovery the feaffment and fine of earl Charles in who then sell the estate to  the plaintiff ancestor make a discontinuance or not for if it do the entry of  the defendant in error be take away on his behalf it be insist that the feoff  and fine in do not discontinue his remainder for that the reversion of the  estate be ultimate in the crown protect it from such discontinuance but to  this it be answer that it do not because a reversion in the crown to prevent a  discontinuance must be a reversion immediate dependent on the estate tail  attempt to be discontinue which this be not for by the recovery Henry VIII the  old estate tail be bar and turn into a feesimple descendible to earl Thomas  and his heir general as long as there be heir male of the say earl subsist and  the reversion thereby leave in the crown become only a mere possibility of  reverter after the determination brown er p of such qualify fee and of  consequence not within the protection of Henry VIII which extend only to  estate tail then subsist which this be not for that statute only say that no  feign recovery hereafter to he have against tenant in tail of land whereof the  reversion or remainder at the time of such recovery have shall be in the king  shall bind etcetera and as to the estate tail create by the settlement which  be confirm by the act James I it be only a partial estate tail create out of  the feesimple gain by the recovery and the reversion be leave in the crown by  that act in the same plight it be before it be in no sort dependent upon or  connect with the estate tail then create but leave to depend as it do before  on the feesimple gain by the recovery and which may possible subsist many  generation after all the estate tailcreated by that act be spend and therefore  the fine and feoffnient in make a discontinuance of the remainder limit to the  defendant in error as they can not nor do in any manner affect the reversion  of the crown between who and the remainder in tail there be no privity or  dependence but upon this point though argue three several time the court give  no opinion for upon argue the case the counsel far the defendant in error  start a new objection namely that no writ of execution or entry of the  recoverer appear upon the special verdict and as it be not find it can not be  presume the recovery therefore be not good and of consequence the earl entry  be lawful and the court be of that opinion give judgement for the earl upon  that point only brown but to reverse this judgement the present writ of error  be bring and on behalf of the plaintiff in error it be insist r Crowle b  Crasteir that the judgement be erroneous and that the writ of execution though  not express find ought to have be presume from the exemplification of the  recovery itself as find its antiquity of above year its be enter upon the roll  the dignity and quality of the party to it and a fresh entry of earl Thomas  express find to be make after such recovery and likewise from the  impossibility of any other proof of actual execution for it be well know that  among the roll of the recovery of that and the precede reign the award of the  writ of execution be not enter or endorse upon one in twenty of they as have  be usual of late year and upon search in the proper office where the writ of  execution themselves of recovery in those early time ought to be file not one  of such ancient writ be to be meet with that if any objection have be make to  the recovery on this account at the time of the trial the court will and ought  to have direct the jury to find the execution of it from the antiquity of the  exemplification itself and the possession of the defendant and his ancestor  agreeable to it and if so it be difficult to give a reason why the court of  law shall not draw the same legal conclusion and make the like reasonable  implication from fact themselves which they will direct a jury upon their oath  to do that the execution of this recovery ought further to be presume from the  sale by earl Charles in and the acquiescence of his two son earl William and  earl James successive for near fourscore year together and from the fatal  consequence which may attend this judgement for if this doctrine shall be  establish that the judge ought not to presume execution at this distance of  time it may shake the title to great part of the property in this kingdom  which probable may depend on the validity of ancient recovery suffer before  the statute of Henry VIII and if a jury for any reason peculiar to themselves  shall think proper to insist upon evidence to support such ancient recovery  which for the above reason appear impossible to be lie before they all  property may be subject to a arbitrary and perhaps corrupt determination of a  jury without any redress whatever as no attain or other remedy against they  will in such case lie that the presumption now contend for be further aid by  the length of possession transmit from ancestor to heir and so express find by  the jury in a series of quiet peaceable and uninterrupted enjoyment for the  compass of near year together but admit that the court of king bench ought not  in strictness of law to have presume the writ of execution as the jury have  not express find it yet it be apprehend to be at most but a imperfect verdict  and that therefore no judgement shall have be give thereon but a venire facias  de to make new I e a new trial ought to have be award but which the court on  motion refuse the objection to brown er p this motion be that a brown venire  facias de to make new be only grantable where the verdict be so imperfect that  the court can give a complete judgement upon it or where the jury be guilty of  misbehaviour in not find accord to their duty and it be apprehend that both  these reason concur in the present case for saint if it be the office of the  jury to have find the fact of execution one way or the other and not to have  submit that question to the court because the court can legal presume either  way they misbehave in not do part of their duty and therefore the record in  this particular shall have be send back to they and dly if complete justice  can not be do to the party upon this record no complete judgement can be give  upon it and the whole merit of this case depend upon the question whether  execution be award or not as the jury have not with certainty find either way  but submit it as a question to the court and admit that this court can not in  strictness of law presume there be execution with what justice can they  determine there be not when it must be undoubted admit that the reasonable  presumption lie the other way it be therefore hope that these reason will be  find to conclude strong in favour of a new trial to ascertain this fact one  way or the other and that therefore the judgement of the court of king bench  will be reverse on the other side it be contend t Bootle W win that the  judgement be right and ought to be affirm because it do not appear that any  writ of seize be ever award upon this common recovery or that the same be ever  carry into execution by writ of seize or otherwise for until a writ of seize  be award execute and return all which must appear upon record and can be  presume it be not a perfect recovery and operate nothing nor be any new  eistate gain to the recoverer or any use raise thereby or the former estate  alter or change and so it be determine on a question upon this very recovery  so long ago as in the reign of king James l the consequence be that earl  Thomas notwithstanding this recovery still continue tenant in tail and the  reversion remain in the crown undisturbed or alter upon this the court of king  bench principal find their judgement and suppose that judgement right upon  this point the rest of the point insist on by the plaintiff in error be  apprehend to be immaterial but suppose this recovery have be carry into  execution it can not bar discontinue or alter the reversion in the crown but  that reversion continue just the same as if no such recovery have be suffer  for it be a rule in law establish beyond doubt that a recovery suffer either  before or since the statute Henry VIII can bar discontinue or alter a  reversion in the crown and this be so then whether the recovery have or have  not any effect upon the estate tail from the time of suffer it to the that of  James I be quite immaterial to the present question because by the act then  pass the estate be entail brown upon the heir male of this noble family with a  remainder over to the son of Edward Stanley of Bickerstaff the ancestor of the  defendant in error in tail male and it have be determine that this very act be  no more than a legislative settlement of the estate accord to the agreement of  the party and derive the several limitation out of the old estate tail but  still leave the reversion in the crown beside it be plain that at the time of  make that act the old estate tail under the grant of Henry VII be understand  to be still subsist because upon the death of earl Ferdinand without issue  male the estate come to William his young brother whereas if there have be any  ground to say that a qualify fee be gain by the recovery of Henry VIII the  daughter of earl Ferdinand will have be entitle take it that earl Charles who  make the feoff in and levy the fine in be only tenant in tail under the  settlement make by the act with the reversion in the crown then that feoff and  fine can be no discontinuance or bar to the title of the defendant in error  because the estate then in earl Charles be of the gift of the crown and the  reversion still in the crown it can not be bar or discontinue by fine or feoff  be within the protection of the statute Henry VIII cap and this be also  determine upon the construction of this very act of parliament upon a fine  levy by earl Charles of another part of the estate thereby settle and entail  in the same manner as the estate in question but suppose this estate not under  the protection of the statute Henry VIII yet as the defendant in error claim  in remainder as heir male of the old son brown er p of Edward Stanley of  Bickerstaff after failure of issue male of earl Charles who levy the fine and  not through he the fine or feoff can be no bar or discontinuance of his estate  which he so claim in remainder or take away his entry his title not accrueing  till the death of the last earl James who do not die till the year and  consequent he be well entitle to the premise in question after hear counsel on  this writ of error the two follow question be put to the judge videlicet  whether sufficient matter be find in the special verdict whereupon the common  recovery of Trinity term Henry VIII can be adjudge or take to be a complete  valid recovery if not whether by law a venire facias de to make new ought to  be award in this case and the lord chief justice of the common plead have  deliver the unanimous opinion of the judge upon both question in the negative  and give their reason at large it be thereupon order and adjudge that the  judgement give in the court of king bench shall be affirm and the record remit  and it be further order that the plaintiff in error shall pay to the defendant  in error pound for his cost in the house jour vol p