The reports of that reverend and learned judge, Sir Richard Hutton Knight sometimes one of the judges of the common pleas : containing many choice cases, judgments, and resolutions in points of law in the severall raignes of King James and King Charles / being written in French in his owne hand, and now faithfully translated into English according to order.

Hil. 20 Jac. Rot. 1942. Pleydell versus Gosmoore.

Wilts.

EDmond Pleydell brought an action of Trespasse against Richard Gosmoore,* 1.1 and William G. for the taking and chasing of a Colt and fettering of him, with a Continuando as to the fettering.

The Defendant convey the Mannor of Sharston to Francis Earl of Hertford: And that the Earl, and all those whose Estates, &c. had the Estrayes which come within the said Mannor, 〈◊〉〈◊〉 that the Tithing-men for the time being, seised the Estrayes and proclaimed them at the next Market or Fair, &c. and kept them untill they be claimed or for∣feited: And that he was a Tithing-man, and seised this Colt as an Estray; and because this Colt was so feirce, &c. that he could not be kept in Pasture, he fettered him, and kept him in his Pasture within the Mannor, and that for the space of two weeks, and the Plain∣tiff having notice claimed him, and had him delivered, &c. The Plain∣tiff demurred generally.

Attho said, that he had not avorred that he continued feirce, &c. but at the time of taking was so: To this it was answered, That the Count chargeth not the Defendant absolutely with all the time, but Diversis diebus & vicibus: And also he justifie for two weeks, which is the same Trespasse: Then upon the matter the question is, if he which hath Estrayes or Waifes, if he seise an Estray qui est ferox, whether he may fetter such Estray.

It was agreed by the Court, that when an Estray comes within a Mannor and walk there, this is a Trespasse, and the party in whose Land the Estray is Damage-feasant, may chase him out of his ground.

Also it was agreed, that untill the Lord, or his Bayliff, or Tithing-man seise the Estray, that shall not be said an Estray; but when the Lord seise, than he hath the Commencement of a property therby, and he is chargable against all others for the Trespasse which this Estray doth; and if this Estray within the year estray out of the Mannor, the Lord may chase back the Estray, untill he be seised by another Lord which hath Estrays: But if he be seised by another Lord, then the first hath lost all his possibility of gaining the property, and the other Lord ought to proclaim it de novo.

It was moved, that if a Lord of a Mannor which hath Estrayes, and hath seised an Estray, suffer that Estray by negligent keeping to stray away, and never can be found again, the Owner may have an action upon the case of Trover and Conversion against the Lord, Quare vide

44 E: 14. there the Lord seised an Asse for an Estray, he to whom the property did belong came and challenged the Estray, the Lord may de∣tain him untill he tender sufficient recompence for the Pasture, vide purc. 20 H 7. 1. by Vavisor, and 39 E: 3. 3. That the Owner cannot take an Estray untill he tender recompence; likewise the Lord after seisin of the Estray, if he took him not Damage-seasant, may have Re∣plevin, and he ought to make him amends.

The Lord cannot work the Estray, but may keep him in his Sta∣ble: And if the Sheriff upon a Fieri facias fetter the Colt, and after the Defendant redeem him for money, he shall not have trespasse, vide 6 E: 3. 8. it is not alledged that the fettering was to any damage of the Estray, vide 22 Ass. 56.

Notes

• * 1.1

  Trespasse. Where one may fetter an Estray.