Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	acre_n	meadow_n	message_n	2,884	5	10.3961	5	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A80192	The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.	Colquitt, Anthony.; Washington, Joseph, d. 1694.; Great Britain. Court of Exchequer.; England and Wales. Court of Common Pleas.; England and Wales. Court of Chancery.; England and Wales. Court of King's Bench.	1698 (1698)	Wing C5416; ESTC R171454	291,993	354

that he was seised of a Mesuage and several Lands in the Parish of Dale and that he and all those whose Estate he hath have used to have right of Common for all Commonable Cattle Levant and Couchant upon the Premisses in a certain Meadow there called Darpmore Meadow and in a certain place called Cannock Wood. That the Defendant praemissorum non ignarus had enclosed the said places in which the Plaintiff had right of Common and likewise put in his Cattle as Horses Cows Hoggs Geese c. so that he could not in tam amplo beneficiali modo enjoy the same The Defendant as to the Inclosure and putting in of his Hoggs and Geese pleaded Not Guilty And as to the residue That the Lord Paget was seised of a Mesuage 300 Acres of Land 40 Acres of Meadow and 100 Acres of Pasture and likewise of Darpmore Meadow and Cannock Wood and being so seised did by Deed of Bargain and Sale enrolled in consideration of 2000 l. convey the said Mesuage 300 Acres of Land 40 Acres of Meadow and 100 Acres of Pasture to the Defendant and his Heirs and by the same Deed did Grant unto him all Waies Commons and Emoluments whatsoever to the said Mesuage and Premisses belonging or therewithal used occupied or enjoyed or taken as part parcel or member thereof virtute cujus the Defendant became seised of the Premisses and that the same were leased and demised for years by the said Lord Paget and all those whose Estate he had a tempore cujus contrarii memoria hominum non existit and that the Tenants or Occupiers thereof a tempore cujus c. used to have Common in Darpmore Meadow and Cannock Wood for all commonable Cattle Levant and Couchant upon the Premisses and used to put in their Cattle into the said places in which c. virtute cujus the Defendant having Right did put in his said Cattle into the said Places to take Common there and averred That there was Common sufficient both for the Plaintiff and himself To this Plea the Plaintiff Demurred This Case was argued by Serjeant Pemberton for the Plaintiff and by Serjeant Weston for the Defendant Ex parte Quer. and for the Plaintiff it was said That it was no good Plea but rather a design to introduce a new way of Common The Reasons offered why the Plea was not good were 1. Cro. Car. 419. That the Defendant could not prescribe because of the Vnity of Possession for the Lord Paget had the Premisses in and to which c. and therefore he hath prescribed by a collateral matter Viz. by alledging that the Land was usually let to Tenants for years but doth not say whether they were Tenants by Copy of Court Roll or not neither doth he make out any Title in them In some Cases where a Man is not privy to the Title he may say generally that the Owners and Occupiers used to do such a thing c. and this way of Pleading may be good but here the Defendant claiming under them ought to set forth their Title or else he can have no Right to the Common 2. By this Plea he intended that the Lord Paget had made a New Grant of this Common for he sets forth That he granted the Premisses and all Commons used with the same and so would intitle himself to a Right of Common in those two places as if Common had been expressly granted to him there which if it should 't is but argumentative and no direct affirmance of a Grant upon which the Plaintiff might have replied non concessit for no Issue can be joyned upon it 3. He ought to have set forth That the Tenants lawfully enjoyed the Common there but he lays only an usage to have Common which may be tortious 4. He doth not say That there is sufficient Common for all the Commoners but only for the Plaintiff and himself 'T is true the Owner of the Soil may feed with his Tenant who hath a Right of Common but he cannot derogate from the first by streightning the Common by a second Grant and so leave not sufficint for the Tenant 5. This Plea amounts to the General Issue Cro. Car. 157. and the Plaintiff hath specially assigned that for a Cause of Demurrer for he saith That the Defendant without any Title put in his Cattle by which the Plaintiff had not sufficient Common and the Defendant pleads he put in his Cattle rightfully and the Plaintiff had Common enough which if it signifie any thing must amount to Not Guilty Ex parte Def. But on the other side the last Objection was endeavoured to be answered first because if that hold yet if the Plea be never so good in Substance the Plaintiff would have Iudgment It was agreed that this Plea doth amount to a General Issue and no more but that every Plea that doth so is not therefore bad for if it otherwise contain reasonable matter of Law which is put upon the Court for their Iudgment rather than referred to the Iury there is is no cause of Demurrer for it is the same thing to have the doubt or question in Law before the Iudges in Pleading as to have it before them upon a Special Verdict In 2 R. 2. 18. A Retainer was pleaded specially by an Administrator which is no more than Plene Administravit yet no Demurrer but the Book saith that the Court ought to be moved 2. The Plea is good as to the matter of it for the Defendant claims the same Common by his Grant which had been used time immemorial and alledges it to be of all Common used with the Premisses and this was a Common so used In Trespass the Defendant justified that Godfrey was seised in Fee of a House and of 20 Acres of Land and that he and all those c. had Common in the place where c. to the said Messuage belonging and that he made a Feoffment to Bradshaw of the same who made a Lease thereof to the Defendant with all Profits and Commodities thereunto belonging vel occupat vel usitat cum praedicto Mesuagio It was adjudged that though the Common was gone and extinct in the Hands of the Feoffor by the unity of the Possession yet those Words were a good Grant of a New Common for the time granted in the Lease and that it was quasi a Common in the Hands of Godfrey the Feoffor Cro. Eliz. 570. Godfrey versus Eyre And though it hath been objected That this Plea is not formally pleaded because it ought to have been direct in alledging a Grant whereas it was only argumentative and brought in by a side Wind he said That as bad as it was 't was drawn by that Serjeant who argued against him and who did very well know that the Averment of sufficiency of Common was needless Curia The Court were all of Opinion That though the Plea did amount to the general Issue yet for that

the space of 14 days after complaint made then the Sub-Commissioners of the Excise are to determine the same from whom no Appeal doth lye to the Justices of the Peace at their next Sessions which Commissioners of Excise Justices of the Peace and Sub-Commissioners amongst other things are inabled by the said Act to Issue out Warrants under their Hands c. to levie the Forfeitures and so justified the Entry under a Warrant from the Sub-Commissioners three Iustices having refused to hear and determine this Offence To this Plea the Plaintiffs demurred and had Iudgment in the Court of Kings-Bench and a Writ of Inquiry of Damages was Executed and 750 l. Damages given and it was alledged that the Defendant could not move to set aside the Iudgment in that Term it was given because the Writ of Inquiry was executed the last day of the Term and the Court did immediatly rise and that he could not move the next Term because the Iudgment was given the Term before the Writ of Error was brought The Attorny General therefore said that this was a hard Case and desired a Note of the Exceptions to the Plea which he would endeavour to maintain which Mr. Pollexfen gave him and then he desired time to answer them The Exception to the Plea upon which the Iudgment was given was this Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences and so to issue out Warrants for the Forfeitures but where the Iustices or any two of them refuse And though it was said by the Defendant that three refused yet it was not said that two did refuse for there is a great difference between the allegation of a thing in the Affirmative and in the Negative for if I affirm that A. B. C. did such a thing that affirmation goes to all of them but negatively it will not hold for if I say A. B. C. did not such a thing there I must add nec eorum aliquis So if an Action be brought against several Men and a Nolle prosequi is entred as to one and a Writ of Enquiry awarded against the rest which recites That the Plaintiff did by Bill implead naming those only against whom the Inquiry was awarded and leaves out him who got the Nolle prosequi this is a variance for it should have been brought against them all 'T is true where a Iudgment is recited 't is enough to mention those only against whom it is had but the Declaration must be against all so in a Writ of Error if one is dead he must be named and so the Iustices ought all to be named in this Case viz. that the three next Iustices did not hear and determine this Offence nec eorum aliquis Wells versus Wright In Communi Banco DEBT upon Bond conditioned Bond with an insensible Condition good that if the Obligée shall pay 20 l. in manner and form following that is to say 5 l. upon four several days therein named but if default shall be made in any of the Payments then the said Obligation shall be void or otherwise to stand in full force and vertue The Defendant pleads that tali die c. non solvit 5 l. c. and upon this the Plaintiff demurred Barrel Serjeant The first part of the Condition is good which is to pay the Mony and the other is surplusage void and insensible but if it be not void it may be good by transsposing thus viz. If he do pay then the Obligation shall be void if default shall be made in Payment then it shall be good and for Authority in the Point the Case of Vernon and Alsop was cited Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill 14 Car. 2. Rot. 1786. in B. R. Where the Condition was that if the Obligée pay 2 s. per Week until the Sum of 7 l. 10 s. be paid viz. on every Saturday and if he fail in Payment at any one day that the Bond shall be void and upon the like Plea and Demurrer as here it was adjudged that the Obligation was single and the Condition repugnant The Court were all of Opinion that Iudgment should be given for the Plaintiff and the Chief Iustice said that he doubted whether the Case of 39 H. 6. 9 10. was Law Brittam versus Charnock Where the the Heir takes by the Will with a Charge he is a Purchaser and the Lands shall not be Assets DEBT upon Bond against the Defendant as Heir Vpon Riens per discent pleaded the Iury found a Special Verdict in which the Case was viz. The Father was seized of a Messuage and thrée Acres of Land in Fee and devised the same to his eldest Son the Defendant and his Heirs within four years after his decease provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts and then he deviseth his other Lands to be sold for payment of Debts c. The Father dies the Son pays the 20 l. and if this Messuage c. was Assets in the Hands of the Defendant was the Question Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271. That it was not Assets it was said because the Heir shall not take by descent but by Purchase for the Word Paying is no Condition if it should the Heir is to enter for the breach and that is the Defendant himself and for that reason it shall be a Limitation Southcot and Stowel Antea 'T is true where there is no alteration of the Estate the Heir must take by descent but in this Case there is an alteration of the Estate from what is directed by the Law viz. the manner how he shall come by the Estate for no Fee passeth to him during the four years But this was denyed by Serjeant Pemberton for he said if a Devise be of Land to one and his Heirs within four years it is a present Devise and if such be made to the Heir 't is a descent in the mean time and those Words within four years are void so that the Question will be whether the Word Paying will make the Heir a Purchaser and he held it would not He agreed that it was usual to make that a Word of Limitation and not a Condition when the Devise is to the Heir and therefore in a Devise to the Heir at Law in Fée he shall take by descent Styles Rep. 148. But if this be neither a Condition or Limitation 't is a Charge upon the Land and such a Charge as the Heir cannot avoid in Equity North Chief Iustice and Atkins Where the Heir takes by a Will with a Charge as in this Case he doth not take by Descent but by Purchase and therfore this is no Assets Moor versus Pit SPecial Verdict in Ejectment The Case was this Surrender of a Copyhold to a Disseisor whether good to extinguish the Right viz. A Copyholder for Life the Remainder for Life he in

of Record the Proceedings may be denied and tryed by Iury. But the Court inclined that it was pleaded well enough and that it was the safest way to prevent mistakes but if the Plaintiff had replied de injuria sua propria absque tali causa that had traversed all the Proceedings Quaere whether such a Replication had been good because the Plaintiff must answer particularly that Authority which the Defendant pretended to have from the Court but no Iudgment was given Sherrard versus Smith TRespass Quare clausum fregit and for taking away his Goods the Defendant justifies the taking by the command of the Lord of the Mannor of which the Plaintiff held by Fealty and Rent and for non-payment thereof the Goods were taken nomine Districtionis The Plaintiff replies that the locus in quo est extra Hors de son Fee when to be pleaded absque hoc quod est infra feodum The Defendant demurrs specially because the Plaintiff pleading hors de son fee should have taken the Tenancy upon him 9 Co. Bucknal's Case 22 H. 6. 2 3. Keilway 73. 14 Ass pl. 13. 1 Inst 1. b. where this is given as a Rule by my Lord Cook Serjeant Pemberton on the other side agreed Ex parte Quer. 13 Assize 28. 28 Assise 41. that in all cases of Assize hors de son fee is no Plea without taking the Tenancy upon him 2 Ass placito 1. And in 5 E. 4. 2. 't is said that in Replevin the Party cannot plead this Plea because he may disclaim but Brook placito 15. tit hors de son fee saith this is not Law and so is 2 H. 6. 1. and many Cases afterwards were against that Book of Ed. 4. and that a Man might plead hors de son fee as if there be a Lord and Tenant holding by Fealty and Rent and he makes a Lease for years and the Lord distrains the Cattel of the Lessee though the Tenant hath paid the Rent and done Fealty there if the Lessee alledge that his Lessor was seised of the Tenancy in his demesn as of fee and held it of the Lord by Services c. of which Services the Lord was seised by the hands of his Lessor as by his true Tenant who hath leased the Lands to the Plaintiff and the Lord to charge him hath unjustly avowed upon him who hath nothing in the Tenancy 't is well enough 9 Co. Case of Avowries and the reason given in 5 Edw. 4. about disclaimer will not hold now for that course is quite altered and is taken away by the Statute of the 21 H. 8. cap. 19. which Enacts That Avowries shall be made by the Lord upon the Land without naming his Tenant But in case of Trespass there was never any such thing objected as here for what Tenancy can the Plaintiff take upon him in this case He cannot say tenen ' liberi tenementi for this is a bare Action of Trespass in which though the pleading is not so formal yet it will do no hourt for if it had been only extra feodum without the Traverse it had been good enough and of that Opinion was the Court in Hillary-Term following when Iudgment was given for the Plaintiff absente Scroggs And the Chief Iustice said That the Rule laid down by my Lord Coke in 1 Inst 1. b. that there is no pleading hors de son fee without taking the tenancy upon him is to be intended in cases of Assize and so are all the Cases he there cites for proof of that Opinion and therefore so he is to be understood but this is an Action of Trespas brought upon the Possession and not upon the Title In the Case of Avowry a Stranger may plead generally hors de son fee and so may Tenant for years and this being in the Case of a Trespass is much stronger and if the Plaintiff destroys the Defendants justification 't is well enough Sir William Hickman versus Thorne alios Prescription against another Prescription not good without a Traverse IN a Replevin The Defendant justifies the taking for that the locus in quo was his Freehold and that he took the Cattel there damage fesant The Plaintiff in bar to the Avowry replies that the locus in quo c. is parcel of such a Common Field and prescribes to have right of Common there as appendant to two Acres which he hath in another place The Defendant rejoyns that there is a Custom that every Free-holder who hath Lands lying together in the said Common Field may enclose against him who hath right of Common there and that he had Lands there and did enclose The Plaintiff demurs and Serjeant Newdigate took Exceptions to the Rejoynder Ex parte Quer. 1. For that he did not averr that the Lands which he enclosed did lye together and therefore had not brought his case within the Custom alledged Sed non allocatur because he could not enclose if the Lands had not laid together 2. He gives no answer to the Plaintiffs right of Common but by argument which he should have confessed with a bene verum est and then should have avoided it by alledging the Custom of Enclosure like the Case of * 2 Leon. 209. Russel and Broker where in Trespass for cutting Oaks the Defendant pleads that he was seised of a Messuage in Fee and prescribes to have rationabile estoverium ad libitum capiend ' in boscis the Plaintiff replies that the locus in quo was within the Forest and that the Defendant and all those c. habere consueverunt rationabile estoverium c. per liberationem Forestarii and upon a Demurrer the Replication was held naught because the Plaintiff ought to have pleaded the Law of the Forest viz. Lex Forestae talis est or to have traversed the Defendants Prescription and not to have set forth another Prescription in his Replication without a Traverse 3. The Defendant should have pleaded the Custom and then have traversed the Prescription of the Right of Common for he cannot plead a Custom against a Custom 9 Co. 58. Aldred's Case where one prescribes to have a Light the other cannot prescribe to stop it up Serjeant Pemberton contra Ex parte Def. He said that which he took to be the only Question in the Case was admitted viz. That such a Custom as this to enclose was good and so it has béen adjudged in Sir Miles Corbet's Case 7 Co. But as to the Objections which have been made the Defendant admits the Prescription for Right of Common but saith he may enclose against the Commoners by reason of a Custom which is a Barr to his very Right of Common and therefore need not confess it with a bene verum est neither could he traverse the Prescription because he hath admitted it 'T is true where one prescribes to have Lights in his House and another prescribes to stop them up this is not good because

one Prescription is directly contrary to the other and for that reason one must be traversed but here the Defendant hath confessed that the Plaintiff hath a Right of Common but t is not an absolute but a qualified Right against which the Defendant may Enclose and here being two Prescriptions pleaded and one of them not being confessed it must from thence necessarily follow that the other is the Issue to be tryed which in this Case is whether the Defendant can enclose or not The Chief Iustice and the whole Court were of Opinion Curia that where there are several Free-holders who have Right of Common in a Common Field that such a Custom as this of enclosing is good because the remedy is reciprocal for as one may enclose so may another But Iustice Atkyns doubted much of the Case at Bar because the Defendant had pleaded this Custom to Enclose in barr to a Freeholder who had no Land in the Common Field where he claimed Right of Common but prescribed to have such Right there as appendant to two Acres of Land he had alibi for which reason he prayed to amend upon payment of Costs Attorny General versus Sir Edward Turner in Scaccario Exposition of the Kings Grant INformation The Case was Viz. The King by Letters Patents granted several Lands in Lincolnshire by express words and then this Clause is added upon which the Question did arise Nec non totum illud fundum solum terras suas contigue adjacen ' to the Premisses quae sunt aqua cooperta vel quae in posterum de aqua possunt recuperari and afterwards a great quantity of Land was gained from the Sea and whether the King or the Patentee was intituled to those Lands was the Question Devise of a possibility good by a common person 2 Cro. 509. pl. 21. 1 Bulst 194. Sawyer for the King argued that he had a good Title because the Grant was void he having only a bare possibility in the thing granted at the time But Levins on the other side insisted that the Grant of those Lands was good because the King may Grant what he hath not in possession but only a possibility to have it But admitting that he could not make such a Grant yet in this Case there is such a certainty as the thing it self is capable to have and in which the King hath an Interest and it is hard to say that he hath an Interest in a thing and yet cannot by any means dispose of it If it should be objected that nothing is to pass but what is contigue adjacen ' to the Premisses granted and therefore an Inch or some such small matter must pass and no more certainly that was not the intention of the King whose Grants are to be construed favourably and very bountifully for his Honour and not to be taken by Inches Postea Company of Ironmongers and Naylor If there are two Marshes adjoyning which are the Kings and he grants one of them by a particular name and description and then he grants the other contigue adjacen ' ex parte australi certainly the whole Marsh will pass and 't is very usual in pleading to say a Man is seised of a House or Close and of another House c. contigue adjacen ' that is to be intended of the whole House In this Case the King intended to pass something when he granted totum fundum c. but if such construction should be made as insisted on then those words would be of no signification 'T is true the word illud is a Relative and restrains the general words and implies that which may be shewn as it were with a Finger and therefore in Doddington's Case 2 Co. 32. a Grant of omnia illa Mesuagia scituate in Wells and the Houses were not in Wells but elsewhere the Grant in that Case was held void because it was restrained to a certain Village and the Pronoun illa hath reference to the Town but in this Case there could be no such certainty because the Land at the time of the Grant made was under Water But if the Patent is not good by the very words of the Grant the non obstante makes it good which in this Case is so particular that it seems to be designed on purpose to answer those Objections of any mistake or incertainty in the value quantity or quality of the thing granted which also supplies the defects for want of right instruction given the King in all cases where he may lawfully make a Grant at the Common Law 4 Co. 34. Moor pl. 571. Bozuns Case And there is another very general Clause in the Patent viz. Damus praemissa adeo plene as they are or could be in the Kings hands by his Prerogative or otherwise * Ante Adeo plene are operative words Whistlers Case 10 Co. And there is also this Clause omnes terras nostras infra fluxum refluxum maris 'T is true Sid. 149. these words praemissis praed ' spectan ' do follow from whence it may be objected that they neither did or could belong to the Premisses and admitting it to be so yet the Law will reject those words rather than avoid the Grant in that part In the Case of the Abbot of * 9 Co. 27. b. Strata Marcella the King granted a Mannor Et bona catalla felonum dicto Manerio spectan ' now though such things could not be appendant to a Mannor yet it was there adjudged that they did pass Such things as these the King hath by his Prerogative and some things the Subject may have by Custom or Prescription as Wrecks c. and in this very Case 't is said that there is a Custom in Lincolnshire that the Lords of Mannors shall have derelict Lands and 't is a reasonable Custom for if the Sea wash away the Lands of the Subject he can have no recompence unless he should be entituled to what he gains from the Sea and for this there are some Authorities as Sir Henry Constable's Case 2 Roll. 168. 5 Co. Land between High-Water and Low-Water Mark may belong to a Mannor But no Iudgment was given Morris versus Philpot in B. R. Release by an Executor before Probate THE Plaintiff as Executor to T. brings an Action of Debt against the Defendant as Administrator to S. for a Debt due from the said intestate to the Plaintiffs Testator The Defendant pleads that the Plaintiff released to him all Brewing Vessels c. and all other the Estate of S. lately deceased this Release was before probate of the Will to which Plea the Plaintiff demurred and whether this Release was a good Barr to the Plaintiffs Action was the Question Ex parte Quer. It was said for the Plaintiff that it was not for if a Conusee release to the Cognisor all his right and title to the Lands of the Cognisor and afterwards sues out

Profit it was answered That the Act took care that Men should not stop up their Chimnies when once made and that this Duty was paid for many Chimnies which were never used and what Profit can a Man have of a Chimny he never useth If there had been an Act that so much should be paid for every Window 't is all one whether it had been for profit or pleasure or whether the Window had been used or not and there is as much reason that a Man should pay for Houses never Inhabited as for such as have been Inhabited and are afterwards without Tenants This Act ought therefore to receive a favourable Construction the Preamble whereof mentions that it was for the encreasing of the Kings Revenue which is pro bono publico and which is for the Peace and Prosperity of the Nation and the protection of every single person therein and though a particular Inconvenience may follow the Party ought to submit When a Man builds a House he proposes a Profit and 't is not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant Object As to the other Objection that was much relied on viz. where the Act speaks of an Accompt to be given it mentions both Owner and Occupier but where it directs the Payment of the Duty the Occupier only is named by which it was inferred that he alone was chargeable Answ In 16 Car. 2. cap. 3. Owner Proprietor and Occupier are used promiscuously wherein it is provided that they shall not be charged unless within two years after the Duty accrued now if the Owner was not chargeable why is he mentioned there As to the second Point they conceived that the Duty being payeable to the King he had a remedy by distress before the Accompt was certified into the Exchequer for the Return was to inform the King what advantage he maketh of his Revenue and no Process issued upon it besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain The King hath no benefit by returning of the Account that being only intended to prevent his being cheated so that 't is not to entitle but to inform him 't is only to return a just and true account not but that it may be levied and the King entitled before and 't is no inconvenience to the Subject if there be no such Account returned for if the Officer distrain for more Hearths than in truth there are the Subject has a proper remedy against him The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity and because he is lyable to be defrauded in the managing of his Duty is it reasonable that he should lose all As to what was said of the Kings taking by matter of Record 't is true if he divest an Inheritance as in case of Attainder it must be by Record but here the very Duty is given to him by the Act it self which makes it a different Case If the King should be seised in Fee of a great Wast which happens to be improved by his Tenants and thereby Tythes become due it may be as well said that he shall have no Tythes without Record as to say he shall have no Hearth-Mony for Houses newly erected whereby his Revenue is increased For which Reasons Iudgment was prayed for the Defendant and upon the second Argument Iudgment was given accordingly for him Curia That empty Houses are subject and lyable to this Duty Astry versus Ballard IN an Action of Trover and Conversion for the taking of Coals upon Not-Guilty pleaded Grants must be taken according to common intendment Jones 71. the Iury found a special Verdict The Case was thus Viz. That one J. R. was seised in Fee of the Manor of Westerly and being so seised did demise all the Mesuages Lands Tenements and Hereditaments that he had in the said Manor for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor Mesuages Lands Tenements Commons and Mines but in the Lease it self to R. the Word Mines was left out Afterwards the Reversion was sold to the Plaintiff Astry and his Heirs by Deed enrolled and at the time of this demise there were certain Mines of Coals open and others which were not then open and the Coals for which this Action of Trover was brought were digged by the Lessee in those Mines which were not open at the time of the Lease and whether he had power so to do was the Question It was said That when a Man is seised of Lands wherein there are Mines open and others not open and a Lease is made of these Lands in which the Mines are mentioned Antea 'T is no new Doctrine to say that the close Mines shall not pass Mens Grants must be taken according to usual and common intendment and when Words may be satisfied they shall not be strained farther than they are generally used for no violent Construction shall be made to prejudice a Mans Inheritance contrary to the plain meaning of the Words A Mine is not properly so called 'till it is opened 't is but a Vein of Coals before and this was the Opinion of my Lord Coke in point in his first Inst 54. b. Where he tells us 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines some being opened and others not the Lessee may use the Mines opened but hath no power to dig the unopened Mines and of this Opinion was the whole Court and Iustice Twisden said That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student Ipsley versus Turk IN a Writ of Error upon a Iudgment in an Inferiour Court What is admitted in pleading shall not be assigned for Error Jones 81. the Error assigned was That the Mayor who was Iudge of the Court did not receive the Sacrament at any Parish Church nor file any Certificate so that he was not Mayor and Iudgment being given against the Defendant before him it was therefore Coram non Judice like the Case of Hatch and Nichols Roll. Abr. 1 part tit Error 761. Where upon a Writ of Error brought upon a Iudgment in an Inferiour Court the Error assigned was that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo who was not Steward and that was held to be an Error in fact But on the other side it was insisted that this was not Error because the Acts of the Mayor should not be void as to Strangers The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants disables the Party who is not qualified according to the Act to hold an Office and if he execute the same afterwards

Tenant to the Praecipe the Statute shall be so construed that the intent of the Parties shall stand 5. The Lands in the Parishes pass 1 Anders 83. because the Deed and Common Recovery make but one Conveyance and Assurance in the Law and therefore as a Construction is not to be made upon part but upon the whole Deed so not upon the Deed or Recovery alone but upon both together 2 Co. 75. Lord Cromwel's Case 6. Antea 'T is the Agreement of the Parties which governs Fines and Recoveries and Lands shall pass by such Names as are agreed between them though such Names are not proper and therefore a Fine of a lieu conus is good though neither Vill or Parish is named therein Poph. 22. 1 Cro. 270 276 693. 2 Cro. 574. So if a Fine be levied of a Common of Pasture in Dale Cro. Car. 308. Winch 122. Sid. 190 191. Antea 't is good though Dale be neither Vill or Hamlet or lieu conus out of a Vill 2 Roll. Abr. f. 19. So in Sir George Symonds his Case Lands as parcel of a Mannor were adjudged to pass though in truth they were used with the Manor but two years and the reason of all these Cases is because it was the Agreement of the Parties that they should pass Object If it be objected That all these Authorities are in Cases of Fines but the Case at Bar is in a Common Recovery which makes a great difference Answ The proceedings in both are amicable and not adversary and therefore as to this purpose there is no difference between them and for an Authority in the point the Case of Lever and Hosier was cited which was adjudged in this Court Trin. 27 Car. 2 Where the Question was Antea whether upon a Common Recovery suffered of Lands in the Town of Sale or the Liberty thereof Lands lying in Dale being a distinct Vill in the Parish of Sale should pass or not and after divers Arguments it was allowed to be well enough being in the Case of a Common Recovery And so was the Case Pasch 16 Car. 2. in B. R. In a special Verdict the Case was That Sir Thomas Thinn being seised of the Mannor of Buckland in Tail and of twenty Acres of Land called and known by a particular name which twenty Acres of Land were in Ed. the 6th's time reputed parcel of the said Mannor and always used with it Sid. 190. sold the said Mannor and all the Lands reputed parcel thereof with the Appurtenances of which he did suffer a Common Recovery and it was adjudged upon great consideration that though the Recovery did not mention the twenty Acres particularly yet it did dock the Entail thereof because the Indenture which leads the Vses of the Recovery was of the Lands reputed parcel thereof or enjoyed with it and that the shortness in the Recovery was well supplied by the Deed in which Case the Court were guided by the resolution in Sir George Symond's Case Vide 6 Co. Sir Moyle Finch's Case The Authorities against this Opinion are two Antea Lever and Hosie● 1. That of Stock versus Fox Cro. Jac. 120. There were two Vills Walton and Street in the Parish of Street and a Fine was levied of Lands in Street it was adjudged that the Lands in Walton did not pass by this Fine But there is another Report of this very Case by my Lord Chief Iustice Roll in his Abr. tit Grants 54. where 't is said if there be in the County of Somerset the Vill of Street and the Vill of Waltham within the Parish of Street and a Man being seised of Lands in the Vill of Street and of other Lands in the Vill of Waltham all within the Parish of Street and he Bargains and Sells all his Lands in Street and having Covenanted to levie a Fine doth accordingly levie it of Lands in Street and doth not mention either in the Indenture or in the Fine any Lands in Waltham the Lands lying there shall not pass from which Report there may be a fair Inference made That it was the Lord Rolls his Opinion that if Waltham had been named in the Indenture though not in the Fine the Lands would have passed and in this Case the Parishes are named in the Indenture of Bargain and Sale but besides in that Case the Party had Lands both in Street and Waltham and so the Conveyances were not in vain as they must be here if the Lands in the Parishes do not pass Antea 2. The other Case is that of Baker and Johnson in Hutton 106. But this Case is quite different from that because there was neither Vill or Parish named in the Indenture but here the Indenture was right for the Lands are mentioned therein to lie in the Parishes c. And for these Reasons Iudgment was prayed for the Defendant This Case was afterwards argued in Michaelmas-Term following by Serjeant Pemberton and Maynard for the Plaintiff who said Ex parte Quer. That the Government of this Nation was Ecclesiastical and Civil the Ecclesiastical runs by Parishes and the Civil by Vills That a Parish is constituted by the Ecclesiastical Power and may be altered by the King and Ordinary of the place that the Parson was superintendent of the Parish and the Constable of the Vill which was also constituted by the Civil Magistrate and from hence it is that in real Actions which are adversary Lands ought not to be demanded as lying in a Parish but within a Vill that being the place known to the Civil Iurisdiction and if a Trespass which is local be laid at Dale generally there being both the Parish and Vill of Dale the proof of the Trespass done in the Parish is not good for it must be at the Vil. They agreed that in conveying of Lands a Fine or Common Recovery of Lands in a Parish or Lieu conus was good 2 Cro. 574. But if there be both a Vill and a Parish of the same Name and severally bounded if the Vill be only named without the Parish nothing doth pass but what is in the Vill because where a place is alledged in Pleading it must be of a Vill Moor 710. 1 Inst 125. b. 2 Cro. 121. And this was the ancient way of demanding Lands in a Praecipe quod reddat because of the Notoriety of Vills from whence Visnes do arise and because the Vill is more particular and of more certainty than a Parish and therefore 't is requisite that the Demandant should be very particular in his Demand that the Tenant may know how to make his defence and the Sheriff of what to deliver possession Besides a Vill is more ancient than a Parish and Lands have been demanded within them time out of mind so that the Demand when 't is doubtful of what 't is made shall be supposed of that which is most ancient and such Construction is most conformable to the like Cases