Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

Fenner versus Fisher. Mich. 34. and 35. Eliz. Reginae, in the Kings Bench

IN Trespasse brought by Iustice Fenner against An∣drew Fisher, for a Trespasse done in the Parsonage house of Cravfords in the County of Kent, 30. Maij 34. of the Queen, the Defendant pleaded that one 〈…〉〈…〉 was seised of the same Messuage in his Demesne as of see, and being so seised, the 〈…〉〈…〉 day of, in the same year, did demise it to the Defendant for two years, from such a Feast then last past; by virtue of which he entred and was possessed, untill the Plaintiff claiming by colour of a Deed made of the sayd Wrigh•• where nothing passed by the Deed, upon which the Defendant entred, &c. The Plaintiff replies by protestation, that the sayd Wrigh•• was not seised as the Defendant hath alledged: And for Plea saith, that the sayd Wright did not let it to the Defendant, as the Defendant hath alledged; upon which being at Issue, and found for the Plaintif; Ackinson moved, that Iudgment ought not to be given for the plaintiff, because that he hath not made any Ti∣tle by his Replication, for by 9 E. 4. 49. In Trespasse the Defendant pleads in Bar and gives colour to the Plaintiff; it is taken for a Rule that the Plain∣tiff ought to make Title: Cook answered, that he needs not to make Title in this case, but that it sufficeth to traverse the Bar without making a Title, and sayd that in 22 E. 4. Fitzh. Trespass, It is adjudged that in Trespasse the Plain∣tiff may traverse the Bar without making Title in his Replication; and here in as much as it is acknowledged by the Defendant, that Wright did de∣mise it to the Plaintiff, and that this is a Lease ta will at the least not defeated by his own shewing, but by the Lease made to Defendant, this being tra∣versed and found against the Defendant. The Plaintiff by the acknowledg∣ment of the Defendant himself, hath a good Title against him to enter into the Land, and by it the Defendant by his Re-entry is become Trespass•••• to the Plaintiff; and he sayd, that in 2 E. 4. fol. In Trespasse, where the Defendant pleads that he let the Land to the Plaintiff for another mans life, and that he

for whose life it was, was dead, upon which he entred, and it is adjudged that it sufficeth for the Plaintiff to maintain that Cestuy & vie was yet living without making any other Title: And yet these reasons Cleoch and Gawdy held the Re∣plication good, to which Popham sayd, that we as Iustices ought not to adjudge for the Plaintif where a good & formall bar is pleaded as here it is. But wherby the Record it self which is before us, we cannot see that the Plaintiff hath good cause of Action: And therefore I agree that in Trespasse in some cases the Plaintiff may traverse the Bar, or part of it, without making any other Title then that which is acknowledged to the Plaintiff by the Bar, but this alwaies ought to be where a Title is acknowledged to the Plaintiff by the Bar, and by another means destroy by the same Bar, for there it sufficeth the Plaintiff to traverse that part of the Bar which goeth to the destruction of the Title of the Plaintiff comprised in the Bar, without making any other Title, but if hee will traverse any other part of the Bar, he cannot do it without making an es∣peciall Title to himself in his Replication, where by the Bar the first possessi∣on appeareth to be in the Defendant, because that although the Traverse there be found for the Plaintiff, yet notwithstanding by the Record in such a Case the first Possessions will yet appear to be in the Defendant, which sufficeth to maintain his Regresse upon the Plaintiff, and therefore the Court hath no matter before them in such a Case to adjudge for the Plaintiff, unlesse in cases where the Plaintiff shews a speciall Title under the Possession of the Defen∣dant; As for example, In trespasse for breaking of his Close, the Defendant pleads that J. G. was seised of it in his Demesne as of fee, and enfeoffed J. K. by virtue of which he was seised accordingly, and so being seised, enfeoffed the De∣fendant of it, by which he was seised, untill the Plaintiff claiming by calour of a Deed of Feoffment made by the sayd J. G. long before that he enfeoffed J. K. (where nothing passed by the sayd Feoffment) entred, upon which the De∣fendant did re-enter, here the Plaintiff may well traverse the Feoffment sup∣posed to be made by the sayd J. G. to the sayd I. K. without making Title, because that this Feoffment only destroies the Estate at will made by the sayd I. G. to the Plaintiff, which being destroyed he cannot enter upon the De∣fendant, albeit the Defendant cometh to the Land by Disseisin, and not by the Feoffment of the sayd I. K. for the first Possession of the Defendant is a good Title in Trespasse against the Plaintiff, if he cannot shew or maintain a Ti∣tle Paramoun••. But the Feoffment of the sayd I. G. being traversed and found for him, he hath by the acknowledgment of the Defendant himself a good Title against him, by reason of the first Estate at will acknowledged by the Defendant to be to the Plaintiff, and now not defeated: But in the same case he cannot traverse the Feoffment supposed to be made to the sayd I. K. to the Defendant, without an especiall Title made to himself; for albeit that I. K. did not enfeoff the Defendant, but that the Defendant disseised him, or that he cometh to the Land by another means, yet he hath a good Title against the Plaintiff by his first Possession, not destroyed by any Title Paramount, by any matter which appeareth by the Record, upon which the Court is to adjudge; and with this accord the opinion of 31 &. 4. 1. That the materiall matter of the Bar ought alwaies to be traversed, or other wise that which upon the plead∣ing is become to be materiall, and that which the Plaintiff traversed here, to wit, the Lease made by Wright to the Defendant is the materiall point of the Bar which destroyeth the Title Paramount acknowledged to the Plaintiff by the colour given in the Bar which is good without another Title made: So note well the diversity where in pleading in Trespasse the first Possessi∣on is acknowledged in the Plaintiff by the Bar, and where it appeareth by the pleading to be in the Defendant, and where, and by what matter the first Possession acknowledged in the Plaintiff by the Bar is avoided by the same Bar; And upon this, Iudgment was given for the Plaintiff, as appeareth in 34. and 35. Eliz. Rol.