Page:The English Reports v1 1900.pdf/811

rent of eight shillings. This copyhold the respondent's father purchased, and was admitted to about forty years ago; and his tenant thereof, at two different times, inclosed seven acres from off Blackburne-Fell, and laid them into the copyhold.

The respondent, after his father's death, applied to be admitted to this copy hold estate, by the ancient descriptions thereof in the former copies; but the Bishop's steward insisted upon varying the descriptions, so as to include the seven acres taken from off Blackburne-Fell; which the respondent refusing to agree to, three proclamations were made for his admittance, and, on his making default, the Bishop insisted upon a forfeiture, and brought an ejectment in his own Court of Pleas at Durham.

On the trial of this ejectment, the respondent put in a challenge to the array of the jury, because they were returned by a sheriff nominated by the Bishop durante bene placito, and under a certain yearly salary; but after a long debate of counsel, the challenge was over-ruled, and the jury sworn; when the trial was put off to the next assizes, in order that the jury might view the premises in question.

In the interim the respondent preferred his bill in Chancery against the Bishop, setting forth his title to and the boundaries of the premises; and that the freeholders were either immediately or mediately tenants to the Bishop, under his distress; and therefore praying, that to prevent multiplicity of suits, the boundaries of the respondent's said manor might be settled by an issue at law, to be tried in an indifferent county; that the testimony of the respondent's ancient witnesses might be perpetuated, that he might be admitted to the said copyhold estate, on payment of the customary fines and fees; and that the Bishop might be enjoined from proceeding at law.

Upon the hearing of this cause on the 20th of April 1716, an issue was directed to be tried at the then next assizes for the county of York, to ascertain the boundaries of the respondent's manor; and the matter relative to the respondent's admittance to the copyhold premises, was reserved till after this trial.

The issue was accordingly tried by a special jury, and a verdict found for the respondent as to all his boundaries; and upon hearing the cause on the equity reserved, the Court declared, that the boundaries of the respondent's manor were sufficiently ascertained and established by the verdict; an injunction was awarded to quiet him in the possession thereof, and the Bishop was decreed to pay the respondent his costs both at law and in equity, relative to the boundaries only. As to the copyhold estate, it was ordered, that the respondent should be admitted thereto on payment of his fine, and other customary charges; the Master was to settle [65] the admittance by as near a description as he could from the last and former admittances, and certify the same; and the consideration of costs, as to the copyhold, was reserved till after the Master should have made his report.

Upon the respondent's proceeding to tax his costs before the Master, the Bishop insisted on his privilege as a Peer; against which the respondent petitioned the House, and the same being referred to the committee of privileges, they reported, that the Bishop had waived his privilege, and ought not to resume it; which report was afterwards agreed to by the House. (Jour. vol. 20. p. 490.)

After the costs were taxed, the Bishop filed a bill of review, to reverse the above decree which being dismissed,^[1] on the 14th of November 1717, he brought the present appeal; insisting,

That upon hearing the cause (T. Powys, N. Lechmere), the bill ought to have been dismissed, as to the waste called Blackburne-Fell not only because it was a title purely triable at law, and an ejectment was depending for that purpose; but also because the appellant's right to the coal mines within the waste was fully proved, and even admitted by the respondent upon the trial. That the Bill ought also to have been dismissed, as to such other of the appellant's rights within the boundary, as were claimed and enjoyed by him, and no way disproved by the respondent; for the saving whereof there was no declaration in the decree, although the whole profits of the soil