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.

Pasch. 8 Jac. Regis. In Communi Banco;

Heydon and Smith's Case.

Richard Heydon brought an Action of Trespass against Michael Smith, and others, of breaking his Close called the Moor in Ugley, in the County of Essex, the 25 day of June, 5 Jac. Et quandam arborem suam ad valentiam 40 s. nuper crescen. succiderunt: The Defendants said, that the Close, and at the time of the Trespass, was the Free∣hold of Si•• John Leventhrop Knight, &c. and that the said Oak was a Timber-Tree of 30 years growth and more, and justifies the cutting down of the Tree by his Com∣mand: The Plaintiff replyes, and saith, That the said Close, and a House, and 28 Acres of Land in ugley, are

Copy-hold, and parcel of the Mannor of Ugley, &c. Of which Mannor, Edward Leventhrop Esq; Father of Sir John Leventhrop, was seized in Fee, and granted the said House, Lands, and Close, to the said Richard▪ Heydon, and his Heirs, by the Rod, at the Will of the Lord, accord∣ing to the Custome of the said Mannor; and that within the Mannor there is such a Custome, Quod quilibet te∣neres Customar, ejusdem Manerii sibi & haeredibus suis ad voluntat. Dom. &c. a toto tempore supradicto usus fuit ad ejus libitum amputare ramos ••mnimodum arborum, called Pollingers, or Husbords, super terris & tenement, suis Cu∣stomar. crescen. pro ligno combustibili, &c. and also, to cut down and take all manner of Trees called Pollingers and Husbords, and all other Timber Trees, &c. for reparati∣on of their Houses, and also for Plough-boot and Cart∣boot; and that all the Trees, &c. hitherto growing up∣on, &c. were not sufficient for the necessary uses afore∣said; And that the said Richard Heydon, from the time of the said Grant, had preserved, &c. all Treas, &c. grow∣i••g upon the said Lands to him granted: and that after the said Edward Leventhrops death, the Mannor descended to the said Sir John; and that at the time of the Tres∣pass, the aforesaid Messuage of the said Richard Heydon, was in decay, &c. upon which the Defendant demurred in Law.

The Case was often argued at Bar; and now this Term it was argued at the Bench by the Justices, and therein these Points were resolved.

1. That the first part of the Custom was absurd and repugnant, but it extends not to the Case; for the last part of the Custom, which concerns the cutting down of the Trees, concerns the Point in question; and so the first part of the Custom is not material. And when it was objected, that the pleading that the Messuage of the Plaintiff was in decay, was too general, as appears by the

Book, 10 Ed. 4. 3. To that it was answered by Cook Chief ••ustice, That the said Book proved the pleading in the Case at Bar was certain enough; and therewith agrees 7 H. 6. 38. 34 H. 6. 17.

2. It was Resolved, That in this Case, without que∣stion, there needs not to alleadge more certainty; for the Copyholder doth not here take it according to the Cu∣stom; but the Lord of the Mannor cuts it down, and preventeth the Copyholder of his benefit; and therefore he needeth not to shew any decay at all, but onely for in∣creasing of Damages: for the Lord does the wrong, when he cuts down the Tree which should serve for Re∣parations.

3. It was Resolved, That of Common-Right, as a thing incident to the Grant, the Copyholder may take House-bote, Hedge-bote, and Plough-bote, upon his Co∣py-hold, Quia concesso uno, conceduntur omnia sine quibus id consistere non potest: And with this agrees, 9 H. 4. Wast 59. But the same may be restrained by Cu∣stome.

4. It was Resolved, That the Lord cannot take all the Timber-Trees, but he ought to have sufficient for Reparation of the Customary Houses, and for Plough-bote, &c. for otherwise great Depopulation will follow. And it is to be understood, that Bote being on old Saxon Word, hath two significations.

First, compensatio criminis, as Frithbote signifies to be discharged, for giving amends for breach ••f the Peace; Manhote, to be discharged of amends for the death of a man.

And secondly, for Reparation; as Bridgebote, Burgh∣bote, Castlebote, Parkbote, &c. And it is to be known, that Bote and Estovers are all one. And Estover is de∣rived of the French Word, Estover, i. e. fovere, i. e. to keep warm, cherish, &c. And there are four kinds of Estovers, viz.

First, Arandi. Secondly, Ardendi. Thirdly, Con∣struendi. And fourthly, Claudendi, viz. Ploughbote, Fire∣bote, Housebote, and Hedgebote.

5. It was Resolved, That the Copyholder shall have a general Action of Trespass against his Lord, Quare clau∣sum fregit & arborem suam succidit: For Custome hath fixed it to his Estate against his Lord. And the Copy∣holder, in this Case, hath as great an Interest in the Timber Trees, as he hath in his Messuage which he holds by Copy. And if the Lord break or destroy the House, without question the Copyholder shall have an Action of Trespass against his Lord, Quare domum fregit; and by the same Reason for the Timber-Trees which are an∣nexed to the Land, and which he may, for Reparati∣on of his Messuage, or else it cannot stand. See Trin. 40 Eliz. Rot. 37. in B. R. between Stebbing and Grose∣nor. See Taylor's Case, in the Fourth Part of my Re∣ports; and see 5 H. 4. 2. 2 H. 4. 12. 2 E. 4. 15. 1 H. 6. 4. 7 H. 4. 15. 19 H. 6. 34. 11 H. 4. 28. 11 H. 4. 23. 21 H. 7. 14. b. acc. 35 H. 6. 24. 30 H. 6. Tresp. 10. &c. 21 H. 7. 15. 11 H. 4. 23. See Fitz. Trespass. ultimo in the Abridgement. And af∣terwards, the same Term, Judgment was given on the principal Case for the Plaintiff.