
    MAY TERM, 1768.
    Britton, qui tam. vs. Ridgery et al.
    
    This was an action of debt on the statute of 32 Henry fill. ch. 9, for purchasing a pretended title, in fee, of Absalom Boreing.
    The declaration states, «that the said JY. Britton oh the 27th of July 1765, at, &c. was seised for one whole year then last passed of a tract of land called Boreing9» Forrest, containing, &c. lying in, &c. and also of one other tract of land called Cuckoldmaker9s Hazard, containing, &c. lying in, &c. and also of one other tract of land called Boreing9s Gift, &c. and the rents and profits of the said lands, and every of them, for the whole time aforesaid., and long before, had taken and received to his own proper use and behoof. Nevertheless a certain Absalom Boreing of, &c. not having any right or title to the said lands, or either of them, hut pretending a right and title to the same, did on the day and year aforesaid, at, &c. enter upon the said lands, the said N. B. of the said lands being then seised, and the possession and seisin of the same having then and continually before kept and bad, and the said A. did then and there, by a certain instrument of writing, grant, bargain, sell and convey, unto the said C. R, &c. the several tracts of land aforesaid, with their, &c. and the said instrument of writing the say ¿y then raid there seal and deliver to them the said C. R, &c. as the act and deed of him the sain A. when neither the said A. nor his ancestors, nor thos by whom the said A. claims, had been in possession of the said tracts of land, or either of them, or the reversion or remainder thereof, or taken the rents and proliis thereof, by the space oi one whole year before the said entry and sale as aforesaid, against the form of the statute in such case made and provided. And the aforesaid C. II, &c. well knowing the premises, afterwards, to wit, on, &c. at, &c. the said instrument of writing so sealed and delivered as afoivfju.il, did take and accept of him the said A. and the said several tracts of land of him the said A. and his pretend; d right and title to the same, did then and there buy, against the form of die statute in such case made and provided. And the said N. B. who as well, &c. further saith, tli.it the said lands, at the time of the sale and purchase aforesaid, were and still are of the value of 1500Í. sterling aforesaid. By reason of which,” See.
    
    The defendants pleaded non mil. and issue was joined. At the April ass.zes a special verdict was found, stating the following facts, viz. 1. The patent of Boreing’s Forest to John Boreing, junior, 23d of September 1747.
    
    2. The patent of Cuckold-maker’s Hazard to John Boreing, junior, 20th of May 1725.
    3. The patent of Boreing’s Gift to John Boreing, junior, 3th of May 1730.
    4. That the said Boreing, father of Absalom, entered into, was seised in fee, and died seised of the above lands.
    5. That the lands descended to Absalom Boreing mentioned in the declaration, as his son and heir at law.
    6. That Absalom Boreing entered into the lands, was seised in fee, and possessed the same, until some time in 1761.
    7. That then Absalom Boreing being an infant, made a contract and agreement with Nicholas Britton for the purchase and sale of the above lauds.
    8. That Britton, in consequence of his contract and agreement with Boreing, and with the consenr, permission, and leave of Boreing, entered into and possessed the lands aforesaid.
    9. That Britton, by and with the consent and agreement of Boreing, possessed and occupied the same until Boreing’s deed to the defendants on-the 27th of July 1765.
    10. That Avarilla Boreing, widow of John Boreing, mother of Absalom, then in his minority, being entitled to her dower in the above lands, and having received the rents thereof after the death of John Boreing, no assignment of hep dower in the said lands, or any part thereof, Waving ever been made, on the 12th of March 1763, conveyed her right and title of dower to Britton, and claiming her right of dower, actually delivered him possession thereof.
    11. That Absalom Boreing, after hé came to the age of 21 years, to wit, on the 11th of February, 1765,. made a contract with Britton for the absolute sale of the lands, and gave his bond dated the same day.
    12» That Britton, in consequence of the agreement made with Boreing in his minority, and also under the deed from Jtoarilla Boreing, and under and by virtue of the bond made after full age, continued in the actual occupation of the lands until the deed to the defendants of the 27th July 1765.
    13. That Britton from the time of his entry until the execution of the deeds, occupied, used, and worked the same lands as liis own property, tended part in com and wheat, cut timber and firewood in other part, also erected and had a limekiln on the lands.
    14. That C. Ridgely, by permission of Britton, cut cord wood on the lands at 6d. per cord; that Britton received rent of the tenant living on the lands for two years subsequent to the time of his entry.
    15. That C. Ridgely, at the request of the tenant, paid Britton part of one year’s rent.
    16. That Boreing on the 27th of July 1765, executed a deed of bargain and sale to the defendants for the lands mentioned in the declaration.
    17. That the defendants accepted the deed, had the same acknowledged and recorded, and have since claimed the lands by virtue thereof.
    18. That neither Boreing nor the defendants were in the actual possession of the lands at any time within one year next preceding the deed of the 27th of July 1765, or had taken rents and profits thereof, in any other manner than as aforesaid found.
    19. That the value, of the lands, at the time of the deed, was the sum of 4301. sterling.
    
      Boldsboronghi (Attorney General,) and Faca, for the Plaintiff.
    Jenings, Johnson, Chose and Alexander, for the Defendants.
    The defendants attornies made three ejections, to the-declaration.
    
    1st. Because it is not shewn or alleged in the declaration that the defendants were not in possession for one whole year before, &c. — -Vide Stat. 32. Sen. VIH. c, 9, and IL F. C. 265, pi. ) 7.
    
      2d. Because, it is alleged in the declaration, that Boreing on the 27th July 1765, entered upon the lands, and then and there by an instrument of writing did sell to defendants, and did then and there seal and deliver to the defendants.
    Sd. Whether as a moiety of the forfeiture is given to the King by the statute, the suit should not be in his name. 7 Co. 35, b. 36, a. Davis, 69. Hard. 448. 1 Sid. 6. 3 Inst. 186, 7. Act of assembly 1716, e. 3.
    
    Q/aere — Whether “well knowing the premises” is a sufficient averment that the defendants knew that Boreing had not been in possession a year before. Vide H. pi. 164, s. 9*
    To shew that the plea of non cul was a good.plea, they cited Co. Ent. 160. Hands. 82. Godb. 144, pi. 180. Jo. 320. Cro. Car. 314. 2 Roll. Ab. 682. Freeman, 129, pi. 150. Hard. 231. Hob. 218 in point. Cro. Eli». 271, Savory vs. Toy.
    
    Upon the specialver diet, the following points were raised
    
      First. Whether Britton was not tenant at will to Boreingl ■
    
    
      Secondly. "Whether the possession of Britton was not the. possession of Boreingl
    
    
      Thirdly. "Whether the deed of bargain and sale can operate?
    
      Fourthly. Whether the deed was not a determination of Britton's estate at will?
    
      Fifthly. Whether the action can be maintained on the statute of 32 Hen. VIII. cap. 9? '
    
      Sixthly. Whether the lease of an infant, without reservation of rent, is void or voidable?
    
    
      Seventhly. What is a pretended right or title within the statute?
    
      Eighthly. Whether Britton was a disseisor.
    
      Ninthly. That the verdict has not found any act done by the defendants contrary to the statute.
    To 1 st. point — Cited Vin. Ab, tit. Estate, 412 (C. c, 5 J pi. 2. Shower, 315. Comb. 177. Co. Lit. 55, s. 68, p. 67, s. 70, 72. 1 Salk. 247. Cart. 202. 3 Salk. 156. Sir Tho. Rav.mond, 147. Carter, 60, 64, 198, pi. 6. 12 Mod. 14. Vin. Ab. tit. Estate, 399, pi. 9. Cites Bro. Ab. tit. Ter Capia, 256, pi. 5. Cites 15 E. IV. 4, 5. 4 Mod. 12. Shower, 310. 1 Sid, 458, Vin. Ab. tit. Estate, 400, pi. 16, 397 pi. 6. Cites 15 E. IV. 6. 2 Sid. 153. Cro. Car. 202, 302. Jo.'816. Cro. Car. 434, 338, pi. 1. Vin. 398, pi. 15. Cites ICeb. 26, pi. 4. Lev. 208, Lamaster’s ease.
    To 2(i point — Cited Yel. 165. Co. Lit. 15, a. 243, a 2 Brownl. 298. Cro. Jac. 659, pi. 9. 2 Roll. Rep. 241, 4. l Roll. Ab. 859. Palmer, 201, 8. Bro. 13. 4 Mod, 
      48. 3 Mod. 196. 1 Shower, 72. Led. 53. Litt. Fed. 588. 2 Cro. 684. Lucas, 55. 1 Lev. 270. Salk. 245.
    
      To 3d Point — Cited Carter, 161. 2 Inst. 672. 3 Lev. 312, 387-8. 1 Lev. 270. Cro. Zita. 483, pi. 19, 446, f-A. 11. 2 Rep. 24, a. 54, a. 2 Co. 31. Noy, 73. Co. Lit-49, a. 2 Co. 23. Co. Zip. 49, a. 2 Cro. 604, 2 Sir. 1086.
    To 4íA Pq¿?if — Cited 2 Zer. 88. 1 Vent. 247. Sir Tho. Baym, 224. 3 Keb. 166, 207. Co. Lit. 55, a.
    
    To 5th Point— Cited Co. Litt. 369, s. 701. Cites Dyer, 52. Plowd. 88. 4 Bac. Jib. 292. 4 Jinn. Cap. 16, s. 9, 10. Carter, 5. 1 Vent. 248. Noy, 71, 72, See 9th Point.
    
    To 6th Point — Cited 3 Bac. Jib. 304, and 137, by which it seems tbe lease is only voidable — Vide 2 Str. 937.
    To 7th Point — Cited Plowd. 87, 88, 89.
    To 8th Point — What is a disseisor — Litt. Sect. 279. Co. Litt. 181, 277. Cro. Car. 303, pi. 6. Co. Litt. 271. a. What is a disseisin — Co. Litt. 153. b. 277. a. Carter, 162, 3. Bracton, Lib. 4 Cap. 8. Co. Lit. Sect. 233, 152, a. 2 Bac. Jib. 97. Co. Litt 161, b. s. 239, 238, 237. Lot. 53. Cart. 162. Cro. Car. 302, pi. 6, Cro„ Eli». 830, pi. 38. 1 Jones, 315. Cro, Car. 220, 221. Bro. M. tit. Disseisin, 68, 30. 'Dalison, 46. 2 Dae. Jib. 99, 100. 1 Roll. Jib. 661. Cro. Car. 223. Pin. Jib. tit. Besseisin, 89. pi 42,45. 90, pi. 59/ 107, pi. S/ 102, 85, pi. 8/ 103, pi. 5/ 104, pi. 12. 3 JWorf. 150. Co. Litt. 46, b. Lilly Convey. 222. 3 Mod. 196. Cro. Car. 302. Co. Litt. s, 588, 9. Styles, 407.
    To 9iA Point— Cited 2 Dae. 526.1 Lev. 167, Litt. i?rp. 369. Dyer 74, pi. 19, 20. Plowd. 80, 87. Cro. Car. 233. 2 Dae. 526. Hawk. F. G. 262, cap. 86. Co. Zip. 369. 6. s. 701. Cites Dper, 52. pi. 265, 6, s, 17. Plowd. 84, 87. Co. Litt. 56. a. 55, b. 57. [c-1 1 Cai/e. 413. Lord Baym. 707. 1008. '2 Shcp, Jib. 81. 3 'Mod. 150. 2 Rep. 25. Vaugh. 51. Lilly Conv. 17. 273. 277, 2 Inst. 672. 1 Inst. 672. Litt. Rep. 18. 6 Rep. 36. 5 R,ep. 124. 10 Rep. 107. b. Cro. Car. 400. pi. 8. 2 Vaugh. 83. Co. Litt. 172. a. Plowd. 77. Dyer, 74. 4 Bac. Jib. 292. 1 Vent, 248.
    The case was discontinued by consent, without costs.
     