The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CCXXXI. Lawson and Hare's Case. Mich. 29 Eliz. In the Common Pleas.

* 1.1IN a Replevin by Lawson against Hare of the Temple, who Avowed, because he himself was seised of a Hundred; And that he himself, and all those whose Estate he hath in the said Hundred, have used to hold a Leet within the said Hundred at such a place every year; And that at every time such Leet should be holden, The Inhabitants within the said Precinct have used to pay to the Lord of the Leet, 16 d. for the Leet-Fee; and that they have used to distrain for the same: And shewed, That at a Leet there holden 5 July, 26 Eliz. &c. The Plaintiff replyed, abs{que} hoc, that they used to distrain; And it was found for the Defendant. And it was moved in arrest of Iudgment, Because the Defendant in making his Title to the Leet by Prescription, Conveys the Hundred to him by a Que Estate, without shewing a Deed of it. See 11 H. 4. 242. Quod fuit concessum per Anderson & Windham. Periam and Rhodes, contrary; But if the Hundred it self had been in Question, then the Exception had been material, but here the Defendant intitles himself to a thing by reason of the Hundred, and then it is sufficient for him to say, That he is seised of the Hundred, be it by right, or by wrong. Admit, That by this not shewing, the Avow∣ry be vitious and defective, It is to be considered, if it be not helped by the Statute of Jeofail's,* 1.2 18 Eliz. And therefore it is to be con∣sidered, If an Avowry be within the meaning of the said Statute.

Anderson, Although that the Avowant be quasi an Actor to have a Retorn of the Cattel, if the Distress be adjudged lawful; yet in truth he is Defendant, and not Plaintiff; And if the Defen∣dant will justifie the taking, and not avow, he is meerly Defen∣dant: And although that he avow to have a Retorn, yet he cannot be said Plaintiff, no more than the Tenant who voucheth over ano∣ther to recover in value, may be said Plaintiff. And therefore an Avowry cannot be said a Count, or Declaration, but a Answer to the Count, or Declaration.

Windham and Periam conceived, That an Avowry is within the Statute; For it comprehends title: And an Answer to an Avowry, is said a Bar to an Avowry; and an Avowry is in the place of a Declaration. Admitting, That an Avowry is within the Statute; If the not shewing of the Deed be such a defect which may be helped by the Statute.

Anderson conceived, That it was: But the Plaintiff might

have demurred upon the Avowry, for not shewing of the Deed, and have had iudgment. But when he hath traversed the Prescription as to the point of the distress, and the same is found against him, Now it shall be intended that the Avowant hath a Deed, although he hath not shewed it.

Windham, The Title of the Avowant to the Hundred, is the Foundation and ground of the Suit; for if the Avowant hath not a Deed to make him a sufficient title to the Hundred, he cannot have the Leet: and if no Leet, then no Leet-Fee; and then the Avowant hath no cause to distrain.

Another Exception was taken to the Avowry, because the Avow∣ant hath not shewed any Seisin of the Leet-Fee.

And by Periam, Such a seisin ought to be shewed in some person certain. For although it needs not always to lay a Seisin, in shew∣ing by whose hands the seisin was had, (for the Inhabitants are charged, and no person certain) yet the seisin ought to be laid in a person in such sort as it may be laid: and therefore in this Case, forasmuch as the seisin cannot be shewed by the hands of the Inha∣bitants, it ought to be layed in the Lord. See 4 H. 6. 29. Br. Avowry, 71. In a Recordare the Defendant avowed, because the King is seised of the Castle of C. in jure Ducatus sui Cornub. to which he had 20 s. Rent out of the Town of D. Solvend. annuatim at Mi∣chaelmas, of which Rent, the King and all the Dukes of Cornwal aforesaid had been seised time out of memory, &c. by the hands of the Inhabitants of the same Town, &c. and the same was holden a good Avowry. For although that seisin ought to be laid in some person certain by his hands; yet in that case it is good enough; For the seisin by one of the Inhabitants, is the seisin of them all.

And in the principal Case by Periam and Walmesley, It was agreed, That the seisin here was well enough confessed; For when the Plaintiff hath taken Issue, That they have used to distrain, all other matters are holden confessed, because that the Plaintiff hath not saved them to him by protestation. Which Rhodes granted.

Another Exception was taken to the Avowry, because that the Leet by it is supposed to be holden in July; therefore void: which see, Magna Charta, 35.

But it was holden by Anderson, Windham, and Rhodes, That by reason of this Prescription, the Court is well holden in July, notwithstanding the said Statute of Magna Charta, and it might be holden at what day he pleased; For his Liberty and Election is not restrained by the said Statute, and such is the common expe∣rience. And note the words of the same Statute, Ita quod quilibet habeat Libertates suas quas habuit, vel habere consuevit, tempore Regis H. avi nostri, &c. vel quod postea perquisivit, &c.

And Rhodes conceived, That the said Statute is to be intended of Turns only, and not of Leets. Which see, 24 H. 8. Br. Leet, 23. in the end of the Case.

But by Periam, A Leet cannot be holden but according to the

said Statute, for to that purpose was the said Statute made: But if a Leet hath been time out of mind, &c. holden at any other day than that which is limited by the Statute, it is a good prescription, and it is saved by the Statute. The Prescription is, That he and all. &c. have used to hold a Leet once in a year, and hath not shewed when the said year begins; for it may be, that a Leet hath been holden there in this year before July, and then this is a void Leet, and so no Leet-Fee due; and of that Opinion was Periam, viz. That the Avowant ought to have shewed the beginning and end of the year, viz. That he held the said Leet pro uno anno finito, such a day: for it may be he hath holden two Leets in one year: But it was said by the other Iustices, That that shall come on the o∣ther side; for prima facie it shall be intended that it hath been but once holden in the same year, until the contrary be shewed.

And Note, by Anderson and Rhodes, If the King grants to one a Leet to hold semel quolibet anno, without saying, At the Liberty of the Grantee, the Grant is good, and the Grantee may hold it at what day he pleaseth.

Notes

• * 1.1

  2 Len. 74.
• * 1.2

  1 Cro. 217.245.