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.

Mich. 21. Jac. C. P.

M. 21. Iac. in C. P. Pleadal against Gosmore.

PLeadal, an Attorney of the Common pleas, brought an action of trespas against Gosmore, and he declared of the taking of a Mare Colt in May, and of the retainer till the first of Iuly, and that the Defendant held him in Compedibus, An∣glice in fetters, diversis vicibus & temporibus, by which she Colt was much the worse: and the Defendant pleaded, that the Countess of Hartford was Te∣nant for life, of the Mannor of Sherstone, within which the taking of the Colt is supposed to be, and that the Lords of the Mannor time before memory &c. had used to have estrayes, and used to seise them by their Bailiffs, and to proclaim them according to the Law of the land; and that the said Mare Colt came with∣in the Mannor such a day, and the Defendant as Bailiff to the said Countess seised that as an astray, and made proclamation according to the Law: and when the Mare Colt was so fierce and wild, that he could not came that, nor keep that out of the lands of his neighbours, he Fettered her, as to him bene licuit, and he detained her till the first of Iuly, at which day the Plantiff came to him and told him, that this was his Mare Colt, upon which the Defendant delivered her, which is the same Trespas &c. and upon that the Plantiff demurred: and Attoe argued, that the plea was not good for matter of Law, for a man may not Fetter an estray Colt, as appears in the like case 27. Assises: and the reason is, because satisfaction shall be given for his damages which he made to the Defendant: and he cited a case, adjudged in that point 8. Iac. Trin. between Harvey and Blacklock in this Court, where the Defendant pleaded such plea in all points, as here as to the Fettering, for the Defendant fettered the horse of the Plantiff; because he was so fierce and so wild to one of his own horses, and so continued till he deli∣vered him to the Plantiff: and because the horse died within the year the Plantiff brought his action, and upon this plea pleaded by the Defendant, it was demur∣red

in law; and judgement was given for him, for Cook who was then chief Iustice said, that a horse may be of 40. or 100. l. price, and it shall be intollerable to allow such Nusance; and secondly, he had not made proclamation, and so tres∣pass lies against, and so in our case. Harris Serjeant to the contrary; for when the Lord of a Mannor takes an estate, he had some kinde of property before the year is expired: and for that reason he may detain the estray against the owner, till amends is made to him 44. E. 3. 14. 29. E. 3. 6. by Knevet 20. H. 7. by Va∣vasor, and Frewick: and if he had property against the owner himself, he may use that with moderation to make some benefit of that; especially in case of necessi∣ty, as 22. Assise 5. 6. a man may justifie the beating another if he be in a rage, and 6. E. 4. 8. one may justifie the felling of a tree in the ground of another in case of necessity; and here is no other way to restrain this Savage Colt, and so the justification is good, but in this case it was resolved by Hobert, Winch and Hut∣ton, Iones being in the Chancery. First, when a beast comes within the Mannor of another Lord, this is a trespas, but after the seisure for an estray, it is a possessi∣on of the estray in the Lord, and the beginning of property; as Hutton used the term, so that he may have an action of trespass against any stranger, which takes that out of his possession: and if he estray into the land of another, he may him re∣take.

Secondly, it was resolved, that if the Lord make not proclamation in conve∣nient time, that this possession became tortious, for the law necessarily imposeth it, upon the Lord of the Mannor, that he make Proclamation, because that other∣wise the owner may not come to the knowledge of him. Thirdly, that the estray within the year is, as a pledge in the Custody of the law, till amends be made to the Lord: and for that reason the Lord may not work him no more, then he can work a distress. Fourthly, it was resolved that if the estray goe into the Mannor of another Lord, and the last Lord claims that as an estray, the first Lord had lost that, but not before claim. Fifthly, Hutton and Winch agree, that he might Fetter the Colt being so fierce, and wild, for he is answerable for the trespas and wrong which he makes in the land of his neighbours; and also to the owner if he lose him, and therefore it is unreasonable, that he may not keep him safe for his indempnity: and that is not like to the case 27. Assise, which was urged of the other side, also they said, fettering is the usual way in the Country to restrain wild horses: and therefore if it be in an ordinary manner, as he Fetters his own, there is not any remedy against the Defendant. Hobert chief Iustice, was against that last point, for the Lord may not hold him in arcta custodia as a prisoner; be∣cause he had rather the keeping of an estray, the the property, and for that if the estray go into the land of another Lord, the first may not take him again, if the o∣ther claims him as an estray, for the possession was, rather in regard of his Man∣nor, then in regard of himself, and therefore he shall not answer for the wrong, which he doth in the lands of others, for the possession is in regard of his Mannor: and his Fettering is an abuse, and he may not neither use nor abuse an estray, and he said over, that the Defendant had not well pleaded for another reason, because he had not shewed, that he proclaimed him in the next market Town within con∣venient time, which convenient time ought to be adjudged by the Court: and he said, the Lord may not keep him else where within the year then within the Man∣nor: Winch Iustice said, the Defendant ought to proclaim an estray, ut supra, if the year be past, for by that he gains an absolute propertie; but here where no property is devested, he needs not to proclaim him within the year: and Hobert commanded this case to be moved again: see the last case but one in the book.

Ruled that after imparlance in debt upon an obligation, the Defendant shall be admitted to plead alwayes ready, though the 13. Eliz. in Dyer was urged to the contrary.