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.

LXIII. The Lord Cromwells Case. Mich. 15 Eliz.

* 1.1JEffery recited, That a Replevin was brought by Franklin; The Defendants made Conusans as Bailiffs of the Lord Crom∣well; because, that the said Lord was seised of the Mannor of North-Elmes; and that the Custom of the said Mannor is, That the Homagers have used to make By-Laws (when necessity shall be) within the same Mannor, and upon a pain and forfeiture, and that the Lord of the Mannor for the time being, might distrain in the Land of any for the Forfeiture. And further saith, That in Anno 6 of Ed. the 6th, the Homage then (whereof Franklin the Plaintiff was one) made By-Law, That none should put his Sheep to feed in the Pasture or Lands of the Lord upon a pain, &c. And that the said Franklin, in the 13th year of the Reign of the Lady

the Queen that now is, had put his Sheep into the Pasture and Lands of the Lord to feed; and for that they avow the taking in the right of the Lord Cromwell, for not payment of the said For∣feiture: And Jefferies of Council with the Plaintiff, said, That the Avowry, nor the Conusans were not good; For the Custom is, as they themselves have shewed, That the By-Law shall be made when necessity requireth (and without necessity a By-Law cannot be:) And it is not alledged here, That there was a necessity at the time of this By-Law made; and then if there be no necessity, they can∣not make the By-Law. Also, it is not alledged, that there were any Sheep there; And when a Custom is pleaded, it shall be pleaded stricti juris. And at the Common Law, you may see divers Cases, That when a Man is to have one thing for the cause of ano∣ther, that he must alledge the thing for which he must have it: As in 9 H. 6. Where an Abbot had granted to one, That he should have Common, wheresoever the Cattel of the Abbot should go; there if the Commoner will justifie or make Avowry for his Common, he must aver that the Beasts of the Abbot went then in such a place, Field, or Pasture; for if they did not go there at the time that he justi∣fieth or avoweth, his Iustification or Avowry shall not be good: And there it was said by Babbington, Chief Iustice, That if a Man grants Common whensoever his Cattel shall go in such a Pa∣sture, If the Grantor doth never put his Cattel into the Pasture, the Grantee shall not have Common there: and therefore he must say, That he put his Beasts into the Pasture. And in 15 H. 7. in the Case of an Annuity granted until he be promoted to a Be∣nefice, in a Writ of Annuity brought, he must say, That he is not promoted, &c. And if an Obligation be made to you, to you my Lord, for Mony, when J.S. shall return from Rome; you shall not have an Action upon the Bond for not payment of the Mony, with∣out alledging, that J.S. is retorned. See 33 H. 6. Hillary's Case; And before the Statute of Quia Emptores terrarum, If a Man had made a Feoffment to hold by Fealty, and the Guarding of his Castle, In an Avowry for the Castle Guard, that there was then War, and so cause of necessity; for in time of Peace he shall not be bound to Guard it. And so it appeareth, 34 H. 8. Where a Feoff∣ment was made before the Statute, to hold by Fealty, and every year to marry a poor Maiden within the Mannor, if he doth avow for not marriage, he ought to alledge, that there was a poor Maid that year within the Mannor. So, if the Tenure be to repair a Bridge that is for the Common wealth, and he and all others are to have advan∣tage of it, yet the Lord shall not avow for not repairing of it, with∣out alledging, that the Bridge was in decay. And so when the Tenure is to Cover his Hall, he shall not Avow, without alledging, that his Hall needed Reparations. And so in the principal Case, here he ought to alledge, that there was a present necessity for making of the By-Law; for it may be, that there was not any Sheep within the Mannor when the By-Law was made, and then there was no

cause that it should be made. And in the like manner as it hath been said of the Common Law, That certainty ought to be shewed, so shall it be by the Statute Laws. As if Tenant for life makes de∣fault, if one prayeth to be received for the default of the Tenant for life, he ought to shew that he hath the Reversion, and that he bringeth his Action by reason thereof: And as it hath been said of the Com∣mon Law, and Statute Law, so it shall be said of Custom; As in 44 E. 3 where the Parishioners prescribe to make By-Laws, and that they made such an Ordinance, That for every Acre of Land, or for every Beast, every one should pay for the Reparations of the Church, &c. there it may be said in Avowry, that the Church wanted Repara∣tion. And so where a Tax and Levy is to make a Wall against the See; there if the party will justifie the levying of the Tax or Le∣vy, he must say, That there was need of it, otherwise the same can∣not be levied: But as to the ability of a person, he shall be enabled by Intendment. As if an Obligation be made by a Man or a Wo∣man, in an Action brought upon the Bond, he shall not be compel∣led to say, That the Man was of full age, or that the Woman was a single Woman, for that shall be intended, until the contrary be shewed: But by Statute Law, if a Man pleads a Grant, it shall be otherwise. As upon the Statute of 1 R. 3. If he plead a Feoff∣ment or a Grant of Cestuy que Use, he must plead, That he was of full age, out of prison, of sound memory, and within the 4 Seas. And so where a Pardon was made in the time of King Ed. the 14th, to all, but to those who were with Queen Margaret; there, if he will take advantage of the Pardon, he must plead, That he was not with the said Queen. And if a Man plead a Feoffment of J.S. at the Common Law, it shall be good; and if he were within age, it shall be shewed on the other side: But if a Man pleadeth a Feoff∣ment by Custom; and the other saith, that the Feoffor was with∣in, age, and the Plaintiff replyeth, That an Enfant by the Custom may make a Feoffment; the same is not good, but a Departure: for he ought to have shewed that at the beginning in his Declara∣tion. And in 37 H. 6. Where a Man pleaded a Devise, and it was shewed, that the Devisor was within age; there the Plain∣tiff need not say, that the Custom is, That an Enfant may de∣vise; for that is a Departure. Another matter of the Custom which they have alledged, is, That they may make By-Laws for the better Ordering; and they have not taken averment, that this Ordinance was either better or worse: and if it be not better, then they have no cause to make the By-Law. If a Feoffment be made causa Matrimonii praeloquuti, it shall not be intended, that the Feoffment was for any other cause than Marriage: And if a Wo∣man brings a Writ of Dower, and the Defendant pleads a Lease for life made by the Husband, it shall not be intended that that Lease was in allowance of her Dower according to the Statute, if it be not expresly shewed. And so, If Cestuy que Use in tail makes a Lease for life, it shall not be intended that Cestuy que Vie

is alive, unless a special Averment be taken, That he is yet alive: And so here it doth not appear; that this is the better Order, nor that the Lands are several, or lie in Common, so as by no means or Circumstance it can appear if it be the better or not. Another cause wherefore the pleading is not sufficient, is, Because he saith, Vpon a pain of Forfeiture to the Lord for the time being; and he hath not alledged in fact, that the Lord Cromwell, who was Lord of the Mannor in Anno 6 E. 6. was Lord in the 13th year of the Reign of the Queen that now is; and, without shewing, that shall not be intended. As in 7 H. 7. A Man pleads a Feoffment, and that J.S. was seised, and did enfeoffe him, that is not good; but he ought to plead, that he being so seised, made the Feoffment; for it shall not be intended, that his seisin continued until the time of the Feoffment, without shewing of it. And so where a Man pleads, That J.S. was seised of a Reversion, granted it; he ought to plead, And that he being so seised, granted it: And so where an Attornment is pleaded; for if he was not seised at the time of the Attornment, the Attornment was not good. And so where a Man will plead a Surrender, he shall shew, that he who Surrendreth, and he to whom a Surrender is made, were seised. Quaere, If the one or the other were not seised, one of the Term, and the other of the Reversion, whether the Surrender be not good. And 31 H. 6. If a Man will plead a Lease by Feoffees to use, he shall say, And that so seised, they made the Lease. And see 6, 7, 10, 11 H. 7. Where Cestuy que Use makes a Feoffment, averment shall be taken, that at the time of the Lease that the Feoffees were seised to the use of the Lessor. And because that here it is not shewed, nor alledged, that the Lord Cromwell is now Lord of the Mannor, it shall not be so intended: Also, for divers other causes, I conceive, that the Avowry is insufficient: For he hath shewed, that a By-Law was made, but doth not shew when it was made, nor for what time it was to continue; And it is not shewed, Whether the same were made for the better ordering of the Lands which the Lord held joyntly, or in common with others, or which he held in his own Right alone: And as to the Prescription, I conceive that the same is not good; because it is against reason, and not ex rationabili causa: For if one Man keeps the Law, and another Man breaks the Law, yet according as they have alledged this Custom to be, he may be distrained who hath not offended, and his Cattel taken for the Offence done by the Cattel of another Man; and it is against reason, that any one should be punished for the default or offence of another: But the Custom of Borough English is good; and so is the Custom of Gavelkind, because that every Son is as good a Gentleman as the eldest; and therefore those Customs stand with Reason. And so in 5 H. 7. Where a Man prescribes, That for the Pasture which the Beasts of the Tenant have taken in his Lands in the day-time; that he have the Foldage of them upon his said Lands in the Night to manure his Lands, is a good prescription,

because the party hath for it Quid pro Quo. And so where a Man prescribes to have a Farthing of every one who passeth over his Land, the same is called Toll traverse, and is good. And so in 7 H. 4. Where a Man prescribes in Common by reason of Vici∣nage, it is good; for though it cannot be of Common Right, yet because each hath Quid pro Quo, it is good. And so is the Cu∣stom for Fishermen to dry their Nets upon the Banks of the Lands of other Men lying upon the Sea Coasts, because it is for the Common wealth; and every Man hath an advantage by it, but if a Man should prescribe to Fowle there upon the Lands of another, that were not good. Meade, contrary, That case is, as it hath been put; and divers Cases of the Common Law, Custom, and Statute Laws, have been shewed: And by common Intendment, it is intended, that need doth require the making of the By-Law; for otherwise, they would not have made it; and there needs not any averment, that there was need of it, for that shall be taken by intendment: As 19 E. 4. A Man counts of the Grant of the next Avoydance, and the Count is good, without shewing, that that was the next Avoydance, but yet it would have been better, if it had been expressed. And 21 H. 7. In Trespass, the first day of May, the Defendant pleads the Licence of the Plaintiff; without shewing, that it was for the same Trespass: and yet it shall be intended, when he pleads a Licence for the same day, that it was for the same Trespass. And as to the Case put upon the Statute of 1 R. 3. it hath been ruled otherwise; for it shall be shewed on the other side, that he was within age, as it appeareth by 10 & 13 H. 7. Also he said, that the Court here shall intend, that there was a necessity sufficient, without expressing of it; and if there was not, then it ought to be alledged on the other side: As 15 H. 7. An Annuity is granted until he was advanced to a Be∣nefice, the Plaintiff shall not need to shew it, but that shall come on the Defendants part; And the Statute which is, That no Cattel of the Plough shall be distrained where the party hath other Cattel of which a Distress may be taken, there the party needs not to alledge, that he had other Cattel, or other Goods. And as to that which hath been said, That it was the better Order, that needs not, for the Defendant himself was one of the makers of the Order; and when By-Laws are made, they shall not extend but to the Tenants within the Mannor where they are made, and to such only as have Lands there, and not to the Lands of others which are out of the Mannor: and the Defendant in this case shall not be received to say, but that this is a good Custom and Or∣der, because he is a party to it, and was the maker of it, and that there was then a necessity for the making of it, for the better order∣ing of the Lands; and that especially when as the Defendant him∣self was a party to it: And as to that which is said, That Seisin is alledged in the Lord Cromwell in 6 E. 6. and it is not alledged, that the Seisin did continue in him until 13th of this Queen; It

shall be intended, that he continued seised until the contrary be shewed. As in 11 H. 7. A Man prescribed to have Common by reason of the House, &c. The Avowant doth not say, that he was seised of the House at the time, &c. of the disseisin of the Common, because he once alledged Seisin of the House, and that Seisin shall be intended to continue unto the time of the disseisin. And so 10 H. 7. A Prior Domus & Ecclesiae de C. brought Waste, and sup∣posed, that it was to the disenheresin of the House, and did not say, praedict. Domus; and yet it was good, and shall be referred to the said Priory: And so here, when he saith, that he was Lord, and that the By-Law was made as before, and a penalty imposed, and a Distress taken by the Bailiff of the Lord Cromwell, for not ob∣serving the By-Law, and payment of the sum assessed, all being put together, makes a sufficient certainty, and that the Lord Crom∣well continued his Seisin of the Mannor and Land: And as to that which hath been said, That the By-Law made, and the Cu∣stom alledged to distrain in the Lands of any Man for the Offence of another, is not reasonable; and against the Law: To that he said, That the Tenants here had authority to make By-Laws, and by their consents have bounden themselves to the observing and performance of them, and therefore shall not now be received to say, That the By-Law made by themselves was against the Law. And he said, That the Customs in some places are, Where there are Waste Lands, that they may make By-Laws, That if any Tenant or person dig Turfs in the same Waste, that the Lord may distrain for such offence within any place of the Mannor, and the Cattel of any person. Quaere of it. The Principal Case was Adjourned.

Notes

• * 1.1

  Dyer 321, 322. 2 Roll. 560, 561.