Provincial Court Proceedings, 1679/80. 299

wife Two two yeare old Heifers w^th their Increase w^ch they the said
Lewis and Mary unjustly detaine, and thereupon the said Thomas
Harris by James Coursey his Attorney sayth That Whereas the said
Desborow Bennet in his life by his last will and Testament Dated
the 26^th day of Ap^ll Anno Domini 1676 did give & bequeath unto
the said Thomas Harris one Two Yeare old heifer, and unto his
sarvant Susanna Hortly now the wife of the said Thomas Harris
one other Two yeare old Heifer to be deliuered to them win six
Moneths after his decease, and the said Desborow dyed in January
following, and his said will proved in due forme of Law as by the
said Will Remaining Upon Record may appeare Neverthelesse the

Liber W. C.

said Lewis Nor the said Mary the said Two Heifers to the said
Thomas and susanna hath not delivered win the time menconed
in the said Will nor at any time since though often demanded to the
damage of the said Thomas Thomas six thousand pounds of To-
bacco, and thereupon brings his accon
W* Originall and Count thereupon are palbably Eronious, and
the same and all the proceedings thereupon ought to abate and be
Quashed
(i) — for that there is variance between the writ and Declaracon, and
the Declaracon is not Maintaineable by the writ, for the writ is
in accon of debt, and the declaracon is in action of Detinue for Two
Heifers w⁰⁰ is Variance from and not Mantaineable by the writt
(2) The writ is to answere unto Thomas Harres and susanna his
wife in a plea of debt, and the Count is only to answere unto Thomas
Harris that they Rend^r unto the said Thomas and Susanna his wife
Two two yeares old heifers w^th their Increase w^ch they the said Lewis
and Mary Unjustly detaine, w^ch also is Variance from & not Main-
taineable by the writt

(3) The said Declaracon is also Vitiuus for the uncertainty Of it

saying that they rend^r unto the said Thomas and Susanna Two two
yeare old Heifers and their Increase, w^ch increase they ought to have
ascertained y^e age and Number
(4) — Had the writ and the Count agreed they ought to have set
downe the Vallue of them. That is to say Two two yeare old heifers
of the vallue of &c
(5) — The accon is also vitious had the Count and writ agreed as
aforesaid for they Could not Joyne in accon for both together for
the wife Could not Joyne in accon for the legacy given to her hus-
band but it would have been Erro^r nor the husband sue for the Legacy
given to the wife without the wife, nor Can the husband and wife
Joyne in an Accon Together for both the Legacyes but it is Erro^r,
but here they are Joynt in the Capias for both, and hee single in
the Declaracon for both. To answere unto Thomas Harris &c. and
the said Thomas by James Coursey his Attorney &c To the damage

p. 272