Opinion
(1793.)
On a scire facias in nature of an audita quaerela issue was joined in Chancery, and sent from there to the county palatine of Durham to be tried, and a verdict given for the plaintiff; and afterwards the record came to the King's Bench, and the defendant's counsel took exception that the issue was not first sent here, that the Judges of this court might write to the Bishop of Durham to try the issue and afterwards make return here, that judgment might be given; and for this reason judgment was reversed. Afterwards, on an audita quaerela, a trial was had, and a verdict had by the plaintiff, and exception was taken that the plaintiff shows that suit tenens unius messuagii in Durham, and that Sir William Blackston was seized of a message in Durham, and of divers other lands, and 30 El. acknowledged a statute, and afterwards the conusee had only extended the land in Durham, which the defendant had and not the other land which the conusees had; ad grave damnum and desired restitution of the mesne profits. The defendant came in and said that Sir William Blackston was not seized of any other lands at the time the statute was acknowledged, and at any time after, whereupon a verdict was found for the plaintiff. Whereupon it was moved in arrest of judgment that it does not appear at what time the plaintiff became tenant of the land at the time of the extent or afterwards. But it shall be intended for the plaintiff, viz., at the time the liberate was delivered, for it is a writ ad nomen propter brevitatem, and then he concludes ad grave damnum; the law understands that he was tenant at the time of the liberate, otherwise it is not ad grave damnum, and if it was not so, the defendant ought to have pleaded it; and as he has pleaded other matter, etc., and it is found against him, it is well enough, and a number of precedents were shown. T. 6 H., 4. rot. 505, 101; M, 16, 17; Eliz. rot., 1313; C. B. On the other part it was alleged that this writ is in lieu of a declaration. 32 H., 6, 14. And in this case it is not alleged when Sir W. B. parted with the possession, but it is alleged that he was seized, etc., which shall be understood to be the case, unless the contrary be shown.
The nature of a scire facias is to put everything upon the defendant, for there is judgment for the plaintiff.