Hill. 17 Jac. Rotulo 170. Petts against Browne .

A Man is seised of Land in Fee , and , having two Sons , doth devise his Land to his younger Son and his Heirs , and if he dye without Issue ( living the eldest Son ) then the elder shall have the Land to him and his Heirs : the Devisor dies , the younger Son had issue a Daughter , that dyed without issue : then the younger Son suffers a common recovery with Voucher , to the use of him and his Heirs , and after deviseth to another and his heirs , and then dies without issue , living the elder Son .

Whether the Devisee or the elder Son should have the Land ? was the question .

And the Counsell for the Devisee raised three points .

1. Admitting that these words in the Devise were omitted , viz. ( living the eldest Son ) whether the younger Son had an Estate-taile , or not ?

2. Whether these words do make such alteration of the Estate , as to make the Estate a Fee-simple determinable upon this contingency , viz. ( if he die without issue , living the elder Son ? )

3. Admitting that there were such a Fee in the younger Son , yet whether this Estate devised to the eldest Son , be not destroied by the recovery ?

And as to the first point it was argued ; that if these words of limitation ( living the elder Son ) had been omitted , the younger son had had an Estate-tail by this Devise , the remainder in fee to the eldest Son .

For although the Devise to the younger Son was to him and his heirs , which ( in case the Devise had stayed there ) had made a very good Fee-simple to the younger Son ; yet when the Devisor goes and declares further , and deviseth , that if he dye without issue , that the elder son shall have the Land , this last limitation ( if he dye without issue ) doth restrain the generality of these words ( his heirs ) to the heirs of the body of the younger Son only , so that the last Devise to the eldest Son doth declare and exemplifie wh●t kind of heirs the Devisor intended in the first Devise to the youngest Son : and in the 5 H. 6. and the 5. where Land was given to R. and K. his Wife , and their heirs , and to the heirs of the said R. if the heirs of the said R. and K. his wife issuing should dye , and this was adjudged a good Estate in tail . And there it was said by Hall , that if Land be given to a man and his Heirs for ever , Et si contingit ipsum Obire sine haeredibus de corpore suo , this is a good estate in tail : and in the 19 H. 6. 74. by Vampage , If I give land to another and his heirs for ever in the beginning of the Deed , and then after I say Quod si contingat , that if he die without heirs of his body , that it shall remain to another , in this case the Law intends by the Si contingat , that it is but an Estate-tail . And in the Book of Assises 14. Land was given to B. and his heirs , to have and to hold to him and his heirs for ever , if B. shall have issue of his body , and if he die without heirs of his body , that the Land shall revert to the Donor and his heirs . B. had issue which died without issue , and it was adjudged that B. had but an Estate in tail , and because he died without heirs of his body , it was adjudged that the Donor should recover against the collaterall heire of B. And if the Law be so in Deeds or Grants executed in the life of the Donor , a fortiori in a Devise , which is to be taken more favourably then an estate made by Deed , and therefore it is sufficient in a Devise to have the intention of the Devisor understood , either to make an estate in fee or in tail , although proper words to make such an estate be not used , and the intent of the Devisor cannot be more manifest to have an estate in tail then in this case .

As to the second Point , the question will be , whether the younger Son hath an estate in Tail or in Fee determinable by this limitation ? and it seemed to them that he shall have but an Estate in tail . In which , the question is , to which estate these words of limitation , to wit ( living the elder Son ) shall be referred , viz. Whether to the Estate made to the younger Son , or to the Estate given to the elder , for if they be referred to the Estate made to the younger , there is no question but these words do abridge & restrain the estate , but if to the elder , then they make no restraint or restriction as to the estate of the younger Son , but onely limit the remainder to the elder Son on this contingency only , viz. ( If he be alive at the time of the death of the youngest Son without issue . ) And to prove that these words shall be referred to the estate devised to the elder brother ; They said , That if the land had been devised to the younger Son and the heirs of his body , and if he dyed without issue , living the elder , that the elder should have the estate to him and his heirs ; it is clear that the younger hath an absolute estate tail , and that then the remainder to the elder shall be on this contingency , viz. ( If he be living when the younger dies without issue . ) And so is Frenchmans Case , 1 , & 2. Eliz. who demised land to his wife for life , the remainder to Charles Frenchman , and the heirs males of his body , and , if he died without heirs males of his body , the remainder to Arthur Frenchman and the heires males of his body . Charles had issue a Daughter , and died without issue male , and it was adjudged that the Daughter should not have the land , for this contingency does not alter the Estatetail that was first limited to Charles , and , although the Devise in the case at Bar be to the youngest Son and his Heirs without any limitation of his body , yet , the limitation afterwards , to wit ( if he die without issue ) does explain well enough , that the heires of his body are intended , and then the subsequent words ( living the Eldest Son ) cannot alter the estate first given to the younger Son . And Hil. 40. Eliz. in the Kings Bench by Walmesly , If one deviseth land to his Son and his heirs , and further deviseth that if he die without issue , that the land shall be sold , yet the Son shall have an estate in fee and not in tail , but otherwise , if he devised that if he died without issue , that the lands should remain over , for in the first case , he disposeth of no more of the estate by the last words , then he did at the first , but in the last case he disposeth of the estate it self in remainder . And this was agreed by Owen , 18 , & 19. Eliz. Rot. 354. and 15. & 16. Eliz. Rot. 330. where the case was , That one Edward Clark , being seised in fee of two houses , had issue Henry , and two Daughters , Alice and Thomasin : Henry dyed before the two daughters , living the Father , the Father devised one house to his daughter Alice and her heirs for ever , and the other to Thomasin ( who was at that time but eight years of age ) and her heirs for ever , and if she died before the age of sixteen years ( Alice then living ) Alice should have it to her and heirs , and if Alice should die having no issue ( living Thomasin ) Thomasin should have the house of Alice to her and her heirs , and if both of them died without issue , he devised the two houses to the two Daughters of his Son Henry and their heirs , and if they died without issue , he devised the remainder to a stranger . Proviso , That if Alice should marry I. S. that Thomasin should have her part to her and her heirs , and if Thomasin should dye having no Child , that the daughters of Henry should have all , and if they died having no Child , the remainder to a stranger as aforesaid . The Devisor dies , then Alice marries N. but not I. S. and enters into her house , Thomasin after sixteen years of age dies without issue : And if Alice or the daughters of Henry should have the estate of Thomasin was the question . And it was holden by three Iustices , that the daughters of Henry should have it , because that Thomasin did not die within the age of sixteen years , and that , it being objected that there was no estate tail to any of the daughters but a fee simple conditionall upon a contingent , it was at last adjudged 14. Eliz. Rot. 340. that they were Tenants in tail by this Devise , in Mich. 37 , & 38. Eliz. 42. & Mich. 14 , & 15. Eliz.

And Michaelmas 18. Jacobi . Judgment . This Case was argued by Montague cheif Iustice , Doderidge , Haughton and Chamberlain , who all agreed , that by this Devise the youngest Son had not an Estate-tail , but a limited see , so that by his dying without issue , living the elder Son , his estate was quite determined ; and all except Doderidge agreed , that the Recovery could not hurt the future Devise . But Doderidge was much against this opinion by reason of great mischeif that might ensue by making of Perpetuities in Devises , and cited Archers Case , and Capels Case , but notwithstanding Iudgment was affirmed as aforesaid .

De Termin . Trinitat . 18 Jacob. Rot. 1198. Dawtree against Dee , and others .

IN an Action on the Case , wherein the Plaintiff Declared , That he the fifth of July , 16 Jacobi , was and is seised in Fee of a Capital Messuage called Moor-place , with the appurtenances , and of 600 Acres of Land , meadow and pasture , in Petworth , with the said Messuage used , of the annual value of 100 l. which Messuage he and those whose Estate he hath in the said Messuage and Tenements , therein Farmors and Tenants , have time out of minde used to keep good hospitality for the relieving of the Poor in Petworth aforesaid , and that in the Church of Petworth aforesaid , on the said fifth of July and also time out of minde , there hath been and is a little Chancel , on the North part of the Parsons Chancel in the said Church ; and also whereas on the said day , and time out of minde , there were divers Seats in the said little Chancel , and that the Plaintiff and those whose Estate he hath , time out of minde have repaired at their charges the said little Chancel , and the Seats from time to time , as often as was needful : and by reason thereof , the Plaintiff , and all those whose Estate he hath , have for all the said time aforesaid , onely power , liberty , and priviledg to sit in any of the said Seats in the said little Chancel , to hear Divine Service in the said Church , and also to bury the dead bodies of any person whatsoever in the said Chancel , at the pleasure of the Plaintiff , and those whose Estate he hath ; and for all the said time have made convenient Graves in the said Chancel , for the said bodies , at their will and pleasure : And that no other person , from any time since the memory of man , have used to sit in any of the said Seats , or to bury any dead bodies in the said Chancel , without License of the Plaintiff , or those whose Estate he hath . Nevertheless the Defendants , intending to dis-inherit the Plaintiff , and to hinder and deprive him of the said liberty , the said day , and from thence until the first of May , 18 Jacobi , at Petworth aforesaid : Praedictum Henricum ad sedendum in sedibus in Cancellula praedicta tunc existentem , & ad intrandum in Cancellulam praedictam ad Divina Servitia in praedicta Ecclesia de Petworth celebrata , audiendum , fraudulenter & malitiose impediverunt , per quod idem Henricus Dawtrey in Cancellula praedicta intrare , vel in eisdem sedibus ad Divina Servitia in eadem Ecclesia durante tempore illo celebrata audiendum per totum idem tempus sedere non potuit , ad damnum 40 l.

The Defendants plead , That Henry Earl of Northumberland , the fifth of July , and long before , and always after until now , hath been , and yet is seised in fee of the Honor of Petworth , and of the said little Chancel , as parcel of the said Honor : and that the Defendants , as servants to the said Earl , lived in the said Honor ; and by the said Earls command , the said fifth day of July , and for divers other days and times between the said fifth day of July and the first of May , as often as Divine Service was celebrated in the said Church , did sit in the said seats at the celebration of Divine Service , which are the Impediments the Plaintiff did complain of .

To which the Plaintiff demurred .

1. In this case it was argued for the Defendants , That the Declaration was not good , because that the Plaintiff did not set forth the manner of the Disturbance , whereupon issue might be taken thereupon , but onely declares that the Defendants did hinder him from sitting in the Seats , or to enter into the Chancel , which allegation is too general , to take any certain issue upon : And so in the 10 Ed 3. 39 A and B. where one lets Land for twelve years , and for security of the term , makes a Charter of Feoffment , upon condition , that if the Lessee was disturbed within the term , that he should hold the Estate to him and his heirs . And all this matter was found by the Recognitors in an Assise upon the general issue , and that the Lessee was disturbed : And this Verdict was adjudged insufficient , because they did not finde how the disturbance was made . Vid. 8 Rep. Francis Case , and the Commentaries 84. Stranges Case . That every Declaration ought to have such certainty as the Defendant may know what matter to make answer unto . Vid. Comment. 202. ad 3 H. 7. 12. Return of a Rescous ought to be certain to every intent , for that is in nature of a Declaration : And in the 22 Ed. 4. 47. Trespass for divers trespasses is not good , because of the incertainty .

2. Admitting the Declaration is good ; It seemeth that the Plea in Bar is good , because the Defendants have made a good Iustification , viz. That the Chancel is the Earls Inheritance , and that they did sit there by his commandment : for although it might be true , that a Liberty to sit and to bury there , yet he cannot restrain the owner of the soyl from the usage of it : As , if one hath Common in the Land of another , or a Way , or other Easment , yet he cannot for these things , restrain the owner of the Land from making use of it . 21 H. 7. 39. If the Defendant in a Trespass Quare clausum fregit the first of May , does justifie the second of May , which was the same Trespass , this is a good Plea , because it may be the same Trespass , because the day is not material : And 3 H. 6. 12. in a Trespass for entry into his Warren , the Defendant pleaded that it was his Franktenement , and adjudged a good Plea as to the entry , because he cannot enter into his own Land vi & armis : but he was put to plead further as to the Chasing . 21 H. 6. 26. In a Trespass for Battery in L , the Defendant justified for keeping his possession in S , which is the same Trespass , and adjudged a good Plea without Travers , because it is Transitory .

But the Court agreed the Declaration was good and particular enough , as in a Quare Impedit . Judicium . The Plaintiff did alledg generally that the Defendant hindered him to present , and that was good . And all the Iudges agreed , that the Plea in Bar was utterly insufficient ; for one cannot have the Free-hold of a Church , or any part thereof . And Iudgment was given for the Plaintiff .

Davison against Culier . In the City of Norwich .

THe Plaintiff at the Sessions of Peace held at Norwich , 16 Jacobi , did inform for the King and himself , That the Defendant , being a Grocer , the first of September then last past , at Norwich , did Ingross and get into his hands , by buying , contract , or promise , of divers persons unknown , 400 Quarters of Wheat , each Quarter at the price of 40 s. to the intent to sell the same again , contrary to the form of the said Statute : Wherefore he prayed , that the Defendant might forfeit the value of the Corn , and that he might have half the value , &c.

The Defendant pleaded Not guilty .

The Iury finde , that 5 Ed. 6. it was Enacted , That every person , who , after the first of May thence next ensuing , shall get into their hands , by buying , contract , or promise , &c. otherwise then by Devise , Grant , or Lease of Land or Title , any Corn growing in fields , or any other grain , butter , &c. or dead victuals , to the intent to sell them again , shall be taken to be an Ingrosser ; and for the first offence shall be imprisoned two months without Bayl , and shall forfeit the value of the things ingrossed . And as to 380 Quarters of the said Wheat , they found the Defendant not guilty ; and as to the twenty Quarters residue , they found that the Defendant the first of September 10 Jacobi , and continuing after till the tenth of August next following , at the said City did use the art and trade of Starch-making ; and that he the 21 of September 15 Jacobi , did get into his hands by buying , and not by Devise , Grant , or Lease , twenty Quarters of Wheat , residue of the said 400 Quarters , to the intent to convert the same into Starch ; and the 20 October , in the same year , did convert the same into Starch ; and the 26 of October , did sell the same to several persons ; and that every one of the said Quarters at the 21 of September was of price 36 s. But whether the Defendant were guilty of the Ingrossing aforesaid , according to the form of the Statute , the Iury knew not , and therefore desired the Opinion of the Court , but if otherwise , &c. And this Record was removed into the Kings-Bench by a Certiorare . Judicium . And Iudgment was given against the King and the Informer .

Moor against Sir George Reynel , Marshal of the Marshalsee .

IN an Action of the Case ; wherein the Plaintiff declares , That he , the 15 Jacobi , did recover in the Common-Pleas 240 l. Debt against one Gilbert Alsop , and 20 l. damages , and that the Plaintiff , in execution of the said Debt , did prosecute the said Gilbert by several Iudicial Writs issuing out of the said Court. And that he , by a Writ of Exigi Facias , issuing out of the said Court , the next Term after the said Iudgment , directed to the Sheriff of the City of Exceter , and Returnable before the said Iustices Quindena Martini , that the said Gilbert the 28 Octob. 15 Jacobi , was Out-lawed in the said City at the Suit of the Plaintiff in the Plea of Debt aforesaid , unde tunc convictus fuit , &c. That Michaelmas 15 Jacobi , the Plaintiff took out of the said Court a Capias ut lagatum against the Defendant , then to the said Sheriff directed , returnable Octabis Purificationis . That the 8 Octob. 15 Jacobi , the said Writ was delivered to the said Sheriff . That the 20 January , 15 Jacobi , the Sheriff took the said Gilbert , and held him in his Custody . That the 23 Januarii , 15 Jacobi , a Habeas Corpus was awarded to have the D●●●nd●nt cum causa , &c. Lunae proxim . post crastinam purificationis . At which day he came to the said Court in the Custody of the said Sheriff , who returned the said Writ , That the twelfth of February the Defendant was committed by the said Court to the Marshalsey ( the Defendant then , and yet being Marshall ) nevertheless the Defendant the thirteenth of April , 18. Jacobi , at Westminster , did suffer the said Gilbert to escape against the will of the Plaintiff , he being unsatisfied his said Debt and damages , whereupon the said Plaintiff hath lost his said Debt and damages , ad damnum 300 l.

The Defendant pleaded that the said Gilbert was committed to him by vertue of the said Writ , but said further , that he remained in his Custody from the aforesaid twelfth of Febr. untill the twenty seventh of Febr. the 16. Jac. during all which time the Plaintiff never prayed to have the said Gilbert in execution , neither was the said Gilbert ever committed at the request of the Plaintiff to the Marshalsey , in execution for the said debt and damages . And pleaded further , that the twenty seventh of Febr. 16. Jac. the said Gilbert did escape against the will of the Defendant , which is the same escape , whereon the Plaintiff doth declare . Upon which Plea the Plaintiff did demur .

Bridgman for the Plaintiff . I conceive Iudgment ought to be given for the Plaintiff , for , when the Defendant Alsop in the first Action was taken by the Capias utlagatum after Iudgment , he was in execution for the Plaintiff . Vide Cokes Rep. Vernons Case : for in asmuch as the King , by the originall Suit of the party , is entitled to have all the Goods and Chattels , and the Profits of the Land with his body also , by reason of the Outlawry , it is good reason that if the Defendant be taken at the Suit of the King , that as the King shal have benefit by the suit of the party , so the party should have some benefit by the suit of the King .

Resolved by the Court , that when he was taken by the Capias utlagatum issuing out of the Kings Bench , he shall be in execution for the Plaintiff presently after the Arrest , if the Plaintiff will , although his body was never brought into the Court , and although the Court did not commit him in execution for the party .

Note , that in all Cases when the Defendant may have a Capias ad satisfaciendum , and the party Defendant is taken by a Capias pro fine , there the Defendant is in execution presently , if the Plaintiff wil without any Prayer of the party , but when the Plaintiff hath Iudgment , and le ts pass his time , so that he cannot presently neither by Capias nor by Fieri facias , but is driven to his Scire facias , there if the Defendant be taken by a Capias pro fine , the Plaintiff must pray that he may remain in execution for him , but this cannot be done without such Prayer . Vide 5. Rep. Frosts Case , 22. Assise 74. If one condemned for a Disseisin , with force , or fees be taken for the Fine , yet he shall not go at large if the party prayes that he may remain for his execution : and in 11. H. 7. 15 when the party may have execution without a Scire facias , the execution for the King shall be prayed for the party , and it is not materiall whether there were a Capias in the Originall , but otherwise if it be after a year . 2. Rich. 3. If one be taken for a fine to the King within the year , and the King pardons him , yet he may remain for the party . And so in this Case I conceive , that Gilbert was in execution for the party , and if he was not , yet the Plaintiff hath proved him in execution , from whence he escaped by the default of the Defendant , so this Action doth well lye . Also the Plaintiff doth charge the Defendant with an escape , 13. April , 18. Jacobi , and the Defendant pleads an escape the 27. Febr. 16. Jacobi , which was a year and two daies before the escape alledged by the Plaintiff , to which the Defendant hath made no answer , and although he concludes that it was the same escape , which makes the plea good , where the time is not materiall , yet it is not in this case , for here it is admitted by the Defendant that the Plaintiff might have prayed him in execution so long as he remained in prison , but it may be he made his prayer afterwards , viz. between the 27. Febr. 16. Jac. and the 13. April . 18. Jac. as it may very well be in this case , and then the averment of the Defendant is nothing to the purpose . Also the Defendant saith , that he remained in Prison from the twelfth of February , 15. untill the seven and twentieth of February , 16. Jacobi . during which time the Plaintiff did not pray him in execution , in which case the day is excluded by this word Quousque .

Crook contra , Who said , that the Declaration was insufficient , for it ought to have been Tam pro Domino Rege quam pro seipso , because here is a contempt to the King : But upon full debate of the Case , and upon shewing a President to the Court which was Plt. Jacobi Rot. 308. in the Common Pleas , between King and Monlenax , where the Declaration was for the party onely , and all the Prothonotaries did certifie the Court , that the greater part of Presidents of such Actions brought in the Common Pleas , were for the party only , and not Tam pro Domino Rege quam seipso , whereupon it was adjudged that it was good either way ; Judicium . and Iudgment was given for the Plaintiff . And note that in this case the Iudgment was Quod Defendans sit in misericordia , and not Quod capiatur , vide 27. Assise 11. 42. Assise , 17. Dyer 238. 40 , & 41. Eliz. New Book of Entries , 44 , & 45.

Bassett against Jefiock and Johnson .

IN an Ejectione , the Iury gave a speciall Verdict to this effect : That Queen Elizabeth was seised in fee in Jure coronae of the Mannor of Watton in the County of York , and that King James the 15. Martii . 2. Jac. did grant the same to William Brown and Robert Knight , and their Heirs , who the twenty seventh of April , 3. Jac. did bargaine and sell the same to Michael Feilding and his heirs , who entred and died seised , and after whose death the same descended to Basill Feilding as his Brother , who made a Lease to the Plaintiff .

Bridgman , It seemeth to me that the Plaintiff hath made a good Title : But it was objected , that there was no good Title , for that it is not found that the Queen died seised , or that the Lands descended to the King .

But it was answered , that when the Queen was seised in Fee in Jure Coronae , that shall be intended to continue , untill the contrary be shewed : for when an Estate of Inheritance is once alledged , it shall be intended still to continue till the contrary be shewn . Plow . Com. 193. 43 1. and 202.

Judicium . And afterwards , viz. 19. Jacobi , Iudgment was given for the Plaintiff , without any argument at the Bench.

Trin. 19. Jac. Samborne against Harilo .

IN an Action of Trespasse , for that the Defendant 10. Octob. 44. Eliz. the Plaintiffs free Warren at Mouldford , in certain places there called Harecombe , Harcombe Coppice , and the Down , did break and enter , and did therein hunt without the license of the Plaintiff , and three Hares and three hundred Conies did take and carry away . Continuando , as to the said Hunting and taking and carrying away the said Hares and Conies from the said tenth day of October , to the first of November .

And further declared , that the tenth of April , 1. Jac. the Defendant the said Warren in the said places did break and enter , and therein , ( without the license of the Plaintiff ) did hunt , and twenty Hares did take and carry away , continuing the said hunting untill the first of March next after , &c.

And further declared , that the tenth of April , 2. Jac. the said Defendant the said Warren in the said places did break and enter , and therein without the license of the Plaintiff did hunt , and forty Hares and four hundred Conies did take and carry away , continuing the said hunting untill the first of March following , contra pacem , &c. & ad damnum , &c.

The Defendant as to the Vi & armis , and to the first Trespasse , ( except the entring and hunting in the said place called the Down , and the taking and carrying away the three hundred Conies ) pleaded not guilty . And as to the entry , hunting and carrying away the said Conies , he saith , that the said place called the Down , is and hath been time out of mind Communis fundus , containing by estimation two hundred acres of Land and Pasture , and that before the said tenth day of September , and before the said Trespasse , and at the said time , the Defendant was seised of a Messuage and six Yard Land , containing a hundred and sixty acres called the Mannor of Southbery , in Mulford aforesaid , and that the Defendant and all those whose estate he hath in the premisses , time out of mind have had Common of Pasture in the said Down for 200. and 40. Sheep , Levant and Couchant upon the said Messuage and six Yard Land , and that the Defendant and all those whose Estate , &c. have used for preservation of the said Common , as often as the said Common hath been oppressed and troubled with Conies , have used of custome to have liberty to hunt and to take the Conies : wherefore the Defendant the aforesaid time of the aforesaid first Trespasse , and for preservation of the said Common from such oppression and diminution aforesaid , into the said Down did enter , and there hunted , and the said Conies did take and carry away according to the said custome , and continuing the said hunting all the said time .

And as to the second Trespasse , besides the entry and hunting in the said places called Harecombe , & Harecombe Coppice and the Down , and the taking and carrying away two hundred Conies , he pleaded not guilty . And as to the entry and hunting in the said places , &c. he saith , that the said places called Harecombe , and Harecombe Coppice , are Woodland , containing by estimation ten acres , and that he was seised in Fee of the said Messuage and six Yard Land , and made the same prescription as aforesaid , for all his Horses , Cowes , Heifers , Bullocks , and two hundred and forty Sheep levant and couchant upon the said Tenements , viz. for the Horses , Cowes , &c. at the Feast of S. George , and from that time , untill the Corne growing in the Feilds of Moulford were carried away , and after the Corne carried away for the Sheep , untill the fourth of March next after , and made the former prescription for the Sheep in the Down ; And the same prescription also for hunting and taking away the Conies as abovesaid , and so did justifie the taking of the said two hundred Conies .

And as to the third Trespasse ( besides the entry and hunting in the said places , and the taking and carrying away of the said four hundred Conies ) he pleaded not guilty , and as to this plea he made the same prescription as before , upon which plea the Plaintiff demurred in Law .

And if this matter pleaded in Bar was sufficient to bar the plaintiff of his Action was the question . And it seemeth to me that there is nothing in the Defendants plea to hinder the Plaintiff from having Iudgment . And the better to argue upon this matter I will first endeavour to shew what interest a Commoner hath in the Soile , and what things he may do upon the Soile , for preservation of the said Common .

2. Whether this be a good usage and custome to enable the Defendant to hunt and kill Conies in the Plaintiffs free Warren .

And as to the first , I conceive that he that hath Common in anothers land , hath nothing at all to do with the Land any more then a meer stranger , but only to put therein his Cattel , and to let them feed there with their mouths , and it is not his own Common until his Cattel have fed there . 14 H. 8. 10. The Owner of a Common cannot grant the Common to anothers use ? Et 27 H. 8. 12. A Praecipe does not lye of a Common , for it is not my Common untill my Cattell have eaten of it , and therefore that which another hath is not mine , therefore I cannot have a Praecipe against him who hath not that which I demand : and in the 22. Assise 48. and 12. H. 8. 2. If a man hath Common in another mans Soile , and a stranger puts in his Cattell , there the Commoner shall not have an Action of Trespasse , for although he hath Common , yet the Herbage doth not belong to him , neither can a Commoner do any thing upon the Soile which tends to the melioration or improving of the Common , as to cut Bushes , Ferne , or such things which do much impaire the Common , neither can he make a Fence or Ditch to let out the water which spoiles the Common : But if he be utterly disturbed of his Common , he may have an Assise , or a Quod permittat ; and if any damage or annoyance be made upon the Land whereby he loseth his Common , he may have an Assise .

And as the Commoner may not meddle with the Soile , so cannot he meddle with any thing arising out of the Land , or that doth grow , or is nourished by the same , otherwise then to have his Cattell to feed there , and therefore it is adjudged Mich. 5. Jac. that a Commoner cannot kill Conies there , but may bring his Action on the Case .

But I agree that a Commoner may distrain Cattell Damage feasant , because their being there is a damage not onely to the Owner , but also to the Commoner , and a Commoner may abate a Hedge or a Gate that hinders him from comming to his Common : wherefore I conclude this first matter that the plea , as to that , is utterly insufficient by the Law , if there were not a speciall custome alledged by the Defendant . And therefore it is to be considered , whether this prescription alledged by the Defendant to hunt and kill Conies there for preservation of his Common , be good or no.

And I conceive it is unreasonable and not good , because it is to the prejudice of the Owner of the Soile without any consideration .

And it is unreasonable for two causes , first , because it is too generall , for the Defendant may hunt and kill as many Conies as he will , for he doth not claim to kill a certain number that do surcharge the Common , but generally ( the Conies there . ) Secondly , as this plea is , the Defendant makes himself his own Iudge to kill the Conies as often and when he pleases .

Also it is against Law , for it is to the destruction of the Inheritance of another , which no person can justifie by custome or prescription , unlesse for the benefit of the Common-weal 13 H. 8. 16. It is Law to pull down a House if the next house to it be on fire , and so the Suburbs of a Town may be pulled down in time of War , and if Enemies be on the Coast , it is good Law to come upon another mans Land , and make Bulwarks there ; for the publick good is preferred before any mans private benefit .

But when it is only for the private benefit of a man it is otherwise , 43. Ed. 3. a. The Abbot said , that he was Lord of the Town of A. and did prescribe that when the Tenant ceased for two yeares , that he might enter untill he be satisfied his arreares . And it was held by the Court to be an ill custome to put a man out of his Inheritance , yet is that more reasonable then this case , for the time when the Lord shall enter is certaine , and the time that he shall hold the Land is also certaine : and 19. Elizab. Dyer 357. A custome that all Tythes let or granted for more then six yeares of Land in such a Towne , was held void by the Court , because it is contrary to reason and to the liberty of the estate of him that hath a Fee . And 9 H. 6. 44. B. Custome in a Leet , that if the petit Iury do make a false Presentment , and this found by the grand Inquest , they shall be amended : and it was held by the Court to be no good custome , and against common right , but if the custome were , that if the petit Iury concealed any thing , they ought to present them to be amerced , this may be a custome .

And to prove that Conies are part of the Inheritance , see Coke Rep. 7. in the case of Swans . But it may be objected that this usage may have a legall beginning , viz. That it was so agreed at the time of the grant , or creation of the Common .

I answer , That then it ought to have been specially pleaded , for else it shall not be so intended as it is proved in the 35 H. 6. 28. Simon Eyres case , where a Custome was pleaded in London , that if the goods of any man be pawned to a Citizen for a debt due to him , that he may detain them untill he be payed his debt ; and it was urged because that it may be good to bind the Debtor , because it may be intended it began by his own grant , but it was ruled that it shall not be so intended , unlesse it be specially alledged .

And that a man shall not be Iudge in his own case , is proved by 22. Edw. 5. 13. B. The Defendant pleaded that at another time he accounted to the Plaintiff in the presence of A. B. & was found in arrear , wherefore he was committed to prison , & there it was adjudged that the party himself could not commit him to Prison , and that an Action of false Imprisonment did lie against the Plaintiff . And Cook R. 8. Dr. Bonhams Case . And in the 5 H. 7. 9. B. If one prescribes , that if any Cattel be taken upon his Land damage feasant , that he may distreyn them , and put them into the Pownd , until amends be made according to his own will : this was held not good , because then he should be his own Iudg , which is against reason . And in the 19 Edw. 2. gard . 127. A Custom was alledged in Ipswich , that when an Infant could count and measure , that he should be out of Ward , and holden to be voyd . 13 Edw. the 3. where a Custom was alledged , that when one could count 12 d. and measure a yard of cloth , he may alien his Land : and did aver , that the Demandant was of such age ; but because he did not alledg the age in certain , it was adjudged against the Demandant . And Dyer 91. a. One grants to another all his Trees which may be reasonably spared , agreed that this was a voyd Grant for the incertainty . And in the 20 H. 7 , 8. B. If Cestuy que use of a Mannor does bargain and sell 10 l. Land , parcel of the Mannor , no use is changed , for the incertainty .