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.

CCLXXXIX. Russell and Broker's Case. Mich. 30 Eliz. In the Common Pleas.

* 1.1IN Trespass, for cutting down of 4 Oaks; The Defendant pleaded, That the place where, &c. And that he is seised of a Messuage in D. and that he, and all those whose Estate he hath, &c. habere Consueverant rationabile estoverium suum for fuel, ad Libitum suum Capiendum in boscis, subboscis & arboribus ibidem crescentibus, and that in Quolibet tempore anni, un∣less in Fawning time. The Plaintiff by Replication said, That the place where is in the Forrest of D. &c. And that the Defendant, and all those whose Estate, &c. habere Consueverunt rationabile estoverium suum de Boscis, &c. per Liberationem Fo∣restarii, aut ejus Deputati, prout Boscus pati potuit, & non ad exi∣gentiam petentis, And upon that Replication, the Defendant de∣murred in Law. And it was the clear Opinion of the Court, That Iudgment should be given against the Plaintiff: For if he would have ousted the Defendant of his Prescription by the Law of the Forrest, he ought to have shewed the Law of the Forrest in such Case: Lex forestae talis est; For the Law of the Forrest, is not the Common Law of the Land; and we are not bounden to take notice of it, but it ought to be pleaded; Or else the Plaintiff ought to have traversed the Prescription of the Defendant; For here are two Prescriptions, one pleaded by the Defendant by way of Bar; The other set forth by the Plaintiff in his Replication, without any traverse of that which is set forth in the Bar, which cannot be good. But if the Plaintiff had shewed in his Replication, Lex forestae talis est, then the Prescription of the Defendant had been answered without any more; for none can prescribe against a Statute.

Exception was taken to the Bar, because the Defendant hath justified the cutting down of Oaks, without alledging, That there was not any Vnderwoods: But that Exception was not allowed, for he hath his Choice, ad libitum suum.

Another Exception was taken to the Bar, because he hath not shewed, that at that time of the cutting, it was not Fawning time;* 1.2 for at the Fawning time his prescription doth not extend to it, and that was holden to be a material Exception: but because that the Plaintiff had replyed, and upon his Replication, the De∣fendant had demurred; the Court would not resort to the Bar, but gave Iudgment upon the Replication, and therefore Nihil Capiat per breve.

Notes

• * 1.1

  2 Len. 209.
• * 1.2

  Poph. 158. 2 Cro. 637, 679.