The resolutions of the judges upon the several statutes of bankrupts as also, the like resolutions upon 13 Eliz. and 27 Eliz. touching fraudulent conveyances / by T.B., Esq.

Hill. 7 Jac. Regis. In the Common-Pleas,

Morse and Webb's Case.

In a Replevin brought by John Morse, against Robert Webb, of the taking of two Oxen the last day of Novemb. 3 Jac. regis nunc, in a place called the Downfield in Lud∣dington, in the County of Worcester; The Defendant, as Bayliff to William Sherington Gent. made Conuzance, be∣cause the place where, is an Acre of Land, which is the Freehold of the said William Sherrington, and for Da∣mage feasants, &c. In Bar of which Avowry, the Plain∣tiff said, That the said Acre of Land is parcel of Down∣field, and that he himself, at the time and before the ta∣king &c. was, and is yet seized of two Yard-Land, with the Appurtenances, in Luddington; and that he, and all those whose Estate he hath in the said 2 Yard-Land, time out of mind, &c. have used to have Common of Pasture, per totam contentam, of the said Place called the Downfield; whereof &c. for 4 Beasts called Rother-Beasts, and two Be••sts called Horse-Beasts, and for 60 Sheep, at certain times in the Year, &c. And that he put in the said two Oxen to use his Common, &c. And the Defendant main∣tained his Avowry, and traversed the Prescription, upon which the Parties were at Issue, and the Jury found a special Verdict: That before the taking one Richard Morse, Father of the said John Morse now Plaintiff, whose Heir he is, was seized of the said two Yard-Land, and had Common of Pasture, &c. as is before alleadged, and so seized the said Richard Morse, 20 Eliz. demised to William Thomas, and John Fisher, divers parcels of the said

two Yard-Land; to which &c. viz. the four Butts of Arable, with the Common and Inter-Common to the same belonging, for 400 years: By force whereof, the said William Thomas, and John Fisher, entred &c. so seized dyed: whereby the Possession and Reversion of the said two Yard-Land descended to John Morse now Plaintiff. And if upon the whole Matter John Morse now hath, and at the time of the taking, &c. had Common of Pasture, &c. for &c. as to the said two Acres of Land, with the Appurtenances, in Law or not, the Jury pray the Advice of the Court.

Note, This Plea began Trin. 5 Jac. Rot. 1405. and up∣on Argument at the Bar and Bench,

1. It was Resolved, by the whole Court, That it ought to be found against the Defendant, who had tra∣versed the Prescription: For though all the two Yard-Lands had been demised for years, yet the Prescription made by the Plaintiff is true: But if he would take ad∣vantage of the matter in Law, he ought (confessing the Common) to have pleaded the said Lease; but when he traverseth the Prescription, he cannot give the same in Evidence.

2. Resolved, That if the said Lease had been plead∣ed, that the Common, during the Lease for years, is not suspended or discharged; for each of them sh••ll have Common rateable, and in such manner, that the Land in which &c. shall not be surcharged.

3. Resolved, That Common appendant to Land, is as much as to say for Cattel leuant and couchant upon the Land, in which &c.

4. There is no difference, when the Prescription is for Cattel leuant and couchant, and for a certain numb••r of Cattel leuant and couchant: But when the Prescrip∣tion is for Common appurtenant to Land, there a certain number of the Cattel ought to be expressed, which are intended by the Law to be leuant and couchant.