Reports of that reverend and learned judge, Sir Humphry Winch Knight sometimes one of the judges of the Court of Common Pleas : containing many choice cases, and excellent matters touching declarations, pleadings, demurrers, judgements, and resolutions in points of law, in the foure last years of the raign of King James, faithfully translated out of an exact french copie, with two alphabetical, and necessary table, the one of the names of the cases, the other of the principal matters contained in this book.

Johnson against Norway.

IOhnson brought an action of Trespass against Norway of Trespass made in a piece of ground, and the Defendant pleaded, that 14. H. 7. Roger Le Strange and Anne his wife, were seised of the Mannor of D. and one Giles She∣rington Abbot of C. was seised of an acre of land in fee, and held this of the said Roger Le-Strange as of the Mannor of D. aforesaid, and that the 22. H. 7. the Abbot, and all the Monks died, by which the said land escheated to Roger &c. and the Mannor discended to his son and heire after his death; who conveyed the Mannor of which the acre is parcel after the escheat by mean conveyance to Ho∣bert in fee, and that Hobert 12. Eliz. infeoffed one Wright of the Mannor, of which the said acre is parcel, and so justified by a conveyance from Wright to the Defendant: the Plantiff replied by protestation that the Abbot was not eligible, and for plea he said, that the aforesaid Hobert 10. Eliz. infeoffed I. S. of the said acre of land absque hoc that he infeoffed Wright of the sad Mannor of which the said acre is parcel; and upon this the Defendant demurred generally. And Ser∣jeant Attoe argued for the Plantiff, that the Plea of the Defendant is evil, and then though the replication of the Plantiff is not good, yet the Plantiff shall have judgement, and he cited Turners case; Hobert it is true,* 1.1 if the replication be meerly void, then it is as you had said, but if the replication be the title of the Plan∣tiff, and that be insufficient, there the Plantiff shall not have judgement, though the plea in barre was evil. Attoe agreed, that if it appear by the Plantiffs own shewing, that he had no cause of action, and that he had no title, he shall not have judgement, but here he had made a good title by the lease of the said acre of land, and though our traverse is evil, and sounds in doubleness, yet the Defendant had demurred generally, and so he had lost the advantage of the doubleness, or of the negative pregnant, for if a ma•• plead double matter, this is only matter of form, and not of substance, and therefore after verdict it is good as hath been adjudged: but he proceeded in his argument, and he said that the barre of the Defendant is

not good, for by his own shewing this acre of land is not parcel of the Mannor, for by the dissolution of the Monastery by the death of all the Monks, the land shall go to the founders and donors, and not to escheat to the Lord of which that is hol∣den, as appears 2. H. 6. 7. and 5. H. 7. if an annuity or rent be granted to an Abbot in fee, and the Abbot and all his Monks do die, the annuity or the rent is extinct, and shall not escheat: see the Deane of Norwiches case Coo. 3. agreed, that by the death of the Abbot and his Covent the corporation is dissolved, and then the possession shall go to the founders, and shall not escheat to the Lord of the Mannor of which the Land was holden, and he said that this point is proved cleerly by the Statute, of the 27. H. 8. and 31. H. 8. of Monasteries, in which Statutes there is an express saving to all persons, except to the donors and to their heires; and no mention is made of the saving of the right of those of whom the land was holden; and that proves cleerly, that if the makers of the Statute had thought that the land had escheated to the Lords, they would have excepted them in the saving of the act, as they had excepted the Donors and Founders, for if otherwise the lands, and possessions shall escheat to the Lords of which the land was holden, they are within the saving of the Statute: and then it will follow that after the death of all the Monks, as at this day, that the Lords shall have the land by escheat, which the Sages of the Law never dreamt of who made that Statute, that any thing may accrew to the Lord, and therefore they provided only for the title of the Do∣nors and Founders, which is an argument that they thought, that upon the disso∣lution of the Monesteries, that the lands shall go to the Founders, and the same he thought concerning a corporation at this day, as of Suttons Hospital &c. and so he concluded that, because in the barre of the Defendant he claimed to hold from the Lord, to whom he supposed the land to escheat, and did not claim &c. by his own shewing the barre is not good: and though our replication, and traverse is not good, yet the Plantiff shall have judgement.

But admitting that the barre is good, yet the replication and traverse is good, and then judgement shall be given for the Plantiff: and the case is, the Defendant pleaded a feofment of the Man. 12. Eliz. to Wright after that he had shewed the escheat of an acre, the Plantiff replied that the 10th. Eliz. the Feofor infeoffed C. of the acre of land, absque hoc that he was infeoffed of the Mannor of which the acre is parcel, and Attoe argued, that the traverse is good, and he alleadged 38. H. 6. 49. the same traverse, and here when the Defendant had pleaded that the acre escheated, and had alleadged a Feofment of the Mannor, and had not expresly alleadged a Feofment of the acre, the Plantiff may traverse that which is not ex∣presly alleadged, because this destroyes the very title of the Defendant; and he cited for that 34. H. 6. 15. a writ of priviledge in trespass, as a Servant to an auditor of the exchequer, the Plantiff replied that he was servant to him in hus∣bandry, absque hoc that he was his servant to waite and attend upon him in his office, and it was holden a good traverse, and yet that was not expresly alleadged by the Defendant.

Hobert chief Iustice said, that the traverse is not good, for by the Feofment which was made the 12th. Eliz. he had confessed and avoyded the Feofment which was made 10th. Eliz. and so there needed no traverse, and therefore he said, the great doubt of the case will be upon the barre of the Defendant, whether by the death of the Abbot and the Monks, the land escheat to the Lords of whom that was holden, or whether that shall go to the Donors, and to the Founders, and he thought that the land shall escheat, to which Winch seemed to agree; and Hobert said, that the writ of contra formam donationis was given to the Founder or Do∣nor by the Statute, and not by the Common Law; but in the principal case, the judges said they would advise of that, and gave day over to argue that again.

Notes

• * 1.1

  Cook 8.