Certain select cases in law reported by Sir Edward Coke, Knight, late Lord Chief Justice of England ... ; translated out of a manuscript written with his own hand, never before published ; with two exact tables, the one of the cases, and the other of the principal matters therein contained.

XXXIII. Easter Term, anno 8 Jacobi: In the Common-Pleas.

Heydon and Smiths Case.

RIchard Heydon brought an Action of Trespass against Michael Smith and others, of breaking of his Close called the Moor in Ugley in the County of Essex the 25 day of June in the fifth year of the King, & quendam arborem suum ad valentiam 40 s. ibidem nuper cres∣cen. succiderunt: The Defendants said, that the Close is, and at the time of the Trespass was the Freehold of Sir John Leventhrop Knight, &c. and that the said Oak was a Timber Tree of the growth of thirty years and more, and justifies the cutting down of the Tree by his com∣mandment: The Plaintiff replyeth and saith, That the said Close, and a House, and 28 Acres of Land in Ugley, are Copyhold, and par∣cel of the said Mannor of Ugley, &c. of which Mannor Edward Le∣venthrop Esquire. Father of the said Sir John Leventhrop, was seised 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, according to the custom of the said Mannor: and that within the said Mannor there is such a custom, Quod quilibet tenens Customar. ejus∣dem Manerii sibi, & haeredibus suis, ad voluntatem Domini, &c. a toto tempore supradicto usus fuit, & consuevit ad ejus libitum amputare ramos omnimodum arborum, called Pollingers, or Husbords, super terris & tenem. suis Customar. crescen. pro ligno combustibili, ad like libitum suum applicand. & in praedicto Messuagio comburend. and also to cut down and take at their pleasure all manner of Trees called Pollengers or Husbords, and all other Timber trees, super ejusdem Custumariis suis crescen. for the reparation of their Houses built upon the said Lands and customary Tenements; and also for Ploughbote and Cartbote: and that all Trees called Pollengers or Husbords, and all other trees at the time of the Trespass aforesaid, or hitherto growing upon the aforesaid Lands and Tenements customary of the said Richard Heydon, were not sufficient, nor did serve for the necessary uses aforesaid: And that the said Richard Heydon, from the time of the said Grant made un∣to him, had maintained and preserved all trees, &c. growing upon the said Lands and Tenements to him granted: And that after the death of the said Edward Leventhrop, the said Mannor descended to the said Sir John Leventhorp: and that at the time of the Trespass the afore∣said Messuage of the said Richard Heydon was in decay, & egebat ne∣cessariis reparationibus in Maremio ejusdem. Vpon which the Defen∣dant did demur in Law.

And this Case was oftentimes argued at the Bar: and now this Term it was argued at the Bench by the Iustices: And in this case these points were resolved.

1. That the first part of the Custom was absurd and repugnant, scil. Quod quilibet tenens Customarii ejusdem Manerii habens & tenens aliqua

terras seu tenementa Custom. &c. usus fuit amputare ramos omnimodum arborum, vocat. Pollingers, &c. pro ligno combustabili, &c. in praedicto Messuagio comburend. (which ought to be in the Messuage of the Plain∣tiff, for no other Messuage is mentioned before) which is absurd and re∣pugnant, That every customary Tenant should burn his Fuel in the Plaintiffs house: But that Branch of the Custom doth not extend un∣to this case: for the last part of the custom, which concerneth the cut∣ing down of the Trees, concerns the point in question; and so the first part of the custom is not material.

It was objected, That the pleading, that the Messuage of the Plain∣tiff was in decay, & egebat necessariis reparationibus in maremio ejus∣dem, was too general: for the Plaintiff ought to have shewed in parti∣cular, in what the Messuage was in decay: as the Book is in 10 E. 4. 3. He who justifieth for Housebote, &c. ought to shew that the House hath cause to be repaired, &c.

To which it was answered by Coke chief Iustice, That the said Book proved the pleading in the case at Bar was certain enough, scil. Quod Messuagium praed. egebat necessariis reparationibus in maremio, without shewing the precise certainty: and therewith agrees 7 H. 6. 38. and 34 H. 6. 17.

2. It was also answered and resolved, That in this case without question it needs not to alledg more certainty, for here the Copyholder according to the custom doth not take it, but the Lord of the Mannor doth cut down the Tree, and carryeth it away where the rest was not sufficient, and so preventeth the Copyholder of his benefit, and there∣fore he needeth not to shew any decay at all, but onely for increasing of the damages; for the Lord doth the wrong when he cutteth down the Tree which should serve for reparations when need should be.

3. It was resolved, That of common Right, as a thing incident to the Grant, the Copyholder may take Housebote, Hedgbote, and Plow∣bote upon his Copyhold: Quia concesso uno conceduntur omnia sine quibus id consistere non potest: Et quando aliquis aliquid concedit, con∣cedere videtur & id sine quo res ipsa esse non potest: and therewith a∣greeth 9 H. 4. Waste 59. But the same may be restrained by custom, scil. That the Copyholder shall not take it unless by assignment of the Lord or his Bayliff, &c.

4. It was resolved, That the Lord cannot take all the Timber Trees, but he ought to leave sufficient for the Reparation of the Custo∣mary houses, and for Ploughbote, &c. for otherwise great Depopulation will follow; scil. Ruine of the Houses, and decay of Tillage and Husbandry. And it is to be understood, That Bote being an ancient Saxon word, hath two significations; the one compensatio criminis, as Frithbote, which is as much as to say, to be discharged from giving amends for the breach of the peace; Manbote, to be discharged of a∣mends for the death of man: And secondly, in the latter signification, (scil.) for Reparation, as was Bridgbote, Burghbote, Castlebote, Parkbote, &c. scil. Reparation of a Bridg, of a Borough, of a Castle, of a Park, &c. And it is to be known, that Bote and Estovers are all one: Estovers are derived of this French word, Estouer, i. e. fovere; i. e. to keep warm, to cherish, to sustain, to defend: And there are four kinds of Estovers, (scil.) ardendi, arandi, construendi, & claudendi: (scil.) Firebote, Housebote, Ploughbote, and Hedgbote.

5. It was resolved, That the Copyholder shall have a general Action of Trespass against the Lord, Quare clausum fregit, & arborem

suam, &c. succidit; for Custom hath fixed it to his Estate against the Lord: and the Copyholder in this case hath as great an interest in the Timber Trees, as he hath in his Messuage which he holdeth by Copy: and if the Lord breaketh or destroyeth the House, without que∣stion 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 annexed to the Land, and which he may take for the Reparation of his Copyhold Messuage, and without which the Messuage cannot stand. Trinit. 40 Eliz. Rot. 37. in the Kings-Bench, between Stebbing and Grosener, The custom of the Mannor of Netherhall in the County of Suffolk was, that every Copyholder might lop the Pol∣lengers upon his Copyhold pro ligno combustibili, &c. And the Lord of the Mannor cut down the Pollingers, being upon the Plaintiffs Copy∣hold, upon which he brought his Action upon the case, because that the lops of the Trees in such case did belong to the Copyholder, and they were taken by the Lord. See Taylors case in the fourth part of my Reports 30 and 31. and see 5 H. 4 2. Guardian in Knight-service, who hath Custodiam terrae, shall have an Action of Trespass for cut∣ing down the Trees against the Heir who hath the inheritance: Vide 2 H. 4. 12. A Copyholder brought an Action of Trespass, Quare clau∣sum fregit, & arbores succidit: and see 2 E. 4. 15. A Servant who is commanded to carry goods to such a place, shall have an Action of Tres∣pass or Appeal: 1 H. 6. 4. 7 H. 4. 15. 19 H. 6. 34. 11 H. 4. 28. It after taking the goods, the owner hath his goods again, yet he shall have a general Action of Trespass, and upon the evidence the damages shall be mitigated: so is the better Opinion in 11 H. 4. 23. That he who hath a special property of the goods at a certain time, shall have a general Action of Trespass against him who hath the general pro∣perty, and upon the evidence damages shall be mitigated; but clear∣ly, the Baylee, or he who hath a special property, shall have a general Action of Trespass against stranger, and shall recover all in damages, because that he is chargeable over. See 21 H. 7. 14. b. acc. And it is holden in 4 H. 7. 3. That Tenant at sufferance shall have an Action of Trespass in respect of the possession, and if the Defendant plead Not-guilty, but he cannot make title, 30 H. 6. Trespass 10. 15 H. 7. 2. The King, who hath profits of the Land by Out-lawry, shall have an Action of Trespass, or take goods damage-feasants: 35 H. 6. 24. 30 H. 6. Tresp. 10. &c. Tenant at will shall have an Action of Tres∣pass: 21 H. 7. 15. and 11 H. 4. 23. If a man Bayl goods which are taken out of his possession, if the Baylee recover in Trespass, the same shall be a good Bar to the Baylee: 5 H. 4. 2. In a Writ of Waste brought against Tenant for life, and assigned the Waste in cutting down of Trees: the Defendant pleaded in Bar, that the Plaintiff himself cut them: and Culpeper, the Serjeant of the Plaintiff, ob∣jected against it, that it should be no Plea, because the Defendant had not any thing in the Freehold, no more then a meer stranger; and if a stranger had cut down the same Trees, he should be chargeable in Waste.

Also in this case, we should be at a mischief if we should not recover against him; for if at another time he bringeth an Action of Trespass against us, he shall recover damages against us for the cutting, id est, for the value of the Trees: and yet it was holden by the Court, that the same was a good Bar: And it was said by the Court that the Plaintiff was not at any mischief in this case: for in as much as the Defendant

shall have advantage now to discharge himself of Waste against the Plaintiff, upon this matter he shall be barred for ever of his Action of Trespass, scil. to recover the value of the Trees, which was the mis∣chief objected by Culpeper: But without question he shall have an Action of Trespass, Quare clausum fregit, for the Entry of the Lessor, and for the cutting of the Trees, but he shall not recover the value of the Trees, because he is not chargeable over, but for the special loss which he hath, scil. for the loss of the Pawnage and of the shadow of the Trees, &c. See Fitz. Trespass ultimo, in the Abridgment: And afterwards, the same Term, Iudgment was given on the principal case for the Plaintiff.