Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	enter_v	lord_n	villain_n	1,438	5	12.5490	5	false

Text snippets containing the quad

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

and takes notice that this Writ is not returnable into that Court from Wales and therefore orders that the Significavit shall be sent by Mittimus out of the Chancery to the Chief Iustice there and gives them power to make Process to inferior Officers returnable before them at their Sessions for the due Execution of this Writ all which had beén in vain if the Capias might go into Wales before the making this Act. Answ But that is an original Writ and so comes not up to this Case Wyndham Iustice agreed in omnibus and said that the Statute of 1 Ed. 6. was very needful for if a Man should be outlawed if the Process should be sent to the Sheriff of the next adjoining County in England he could not have any notice that he was outlawed and so could not tell when oulawed or at whose Suit Vaughan late Lord Chief Iustice held strongly Vaugh. 395. 2 Saund. 194. that no Execucution would go into Wales when this Case was argued before him and of the same Opinion was Iustice Twisden Williamson versus Hancock Collateral Warranty Mod. Rep. 192. A Special Verdict was found in an Ejectment where the Case was Richard Lock the Father was Tenant for Life with Remainder in Tail to Richard his Son Remainder to the right Heirs of the Father who levies a Fine with Warranty to the use of Susan and Hannah Prinn in Feé they by Bargain and Sale convey their Estate to the Defendant The Son in his Fathers life time before the Warranty attached comes of full age the Father dies The Question was whether the Sons Entry was barred by this collateral Warranty thus discended And the thrée Iustices absente North Chief Iustice were clear of Opinion that the collateral Waranty was a barr to the Son and so Iudgment was given for the Defendant Ellis Iustice held that his Entry is taken away for in every Warranty two things are implied a Voucher and Rebutter he that comes in by Voucher calleth the person into Court who is bound in the Warranty to defend his Right or yield him other Land in recompence and must come in by Privity but if a Man have the Estate though he comes in the Post he may rebut that is he may repel the Action of the Heir by the Warranty of his Ancestor without shewing how the Estate came to him Fitzh Nat. Br. 135. In a Formedon in the Discender to say the Ancestor enfeoffed J.S. with Warranty without shewing how J. S. came by his Estate is good Object It was objected by Serjeant Maynard that no person can take advantage of a Warranty who comes in by way of use as in this Case Answ But 't is expresly resolved otherwise in Lincoln Colledge Case 3 Co. 62. b. and the Prinns in this Case came in by Limitation and Act of the Party and the Defendant who hath the Reversion likewise by Limitation of Vse though he be in the Post shall take benefit of the Warranty as Assignee within the Statute of 32 H. 8. Mod. Rep. 181. c. 34. and so it was resolved in Fowl and Dobles Case in this Court that he who comes in by way of use may rebut and Iustice Jones in his Report fol. 199. affirms the fourth resolution in Lincoln Colledge Case to be Law It was formerly objected by the Lord Chief Iustice Vaughan that this Warranty goes only to the Heirs not to the Assigns and here the Estate was conveyed by the two Prinns before the Warranty attached Answ But when the Estate passeth the Warranty and Covenant followeth and the Assignée shall have the benefit thereof though not named and so is the Authority of 38 E. 3. 26. if a Warranty be made to a Man and his Heirs the Assigneé though not named shall Rebutt but he cannot Vouch. So if A. enfeoff B. with Warranty and B. enfeoff C. without Déed C. shall vouch A. as Assigneé of the Land of B. for the Warranty cannot be assigned In this Case though the Warranty did not attach before the Estate in the Land was transferred yet if it attach afterwards 't is well enough and he who hath the Possession shall Rebutt the Demandant without shewing how he came by the Possession If a Warranty be to one and his Heirs without the word Assigns the Assignée indeéd cannot Vouch but he may * 1 Inst 265. a 384. Rebutt for Rebutter is so incident to a Warranty that a Condition not to Rebutt is void in Law But 't is otherwise of a Condition not to Vouch for in such case you may Rebutt 'T is true it hath béen an Opinion that he who claimeth above the Warranty if it be not attached cannot take benefit of it by way of Voucher or Rebbutter as if Tenant in Dower maketh a Feoffment to a Villain with Warranty and the Lord entreth upon him before the descent of the Warranty the Villain can never take advantage of this Warranty by way of Rebutter because the Lords Title is paramount the Warranty and he cometh not under his Estate to whom the Warranty was made If Land be given to two Brothers in Feé with Warranty to the eldest and his Heirs the eldest dies without Issue the Survivor shall not take benefit by this Warranty for the reason aforesaid But in the Case at Barr the Warranty being collateral and annexed to the Land goeth with the Estate and whilst that continues the Party may Vouch or Rebutt so here the Defendant though he be only Tenant at Will for the Estate is in the Bargainors and their Heirs there being no Execucution of it either by Livery or Enrolment yet he may Rebutt Iustice Atkins was of the same Opinion that by this collateral Warranty the Entry of the Lessor of the Plaintiff was taken away for 't is the nature of a collateral Warranty to be a Barr a * Jones Rep. 199 200. 1 Inst 366 385. 25 H. 6. 63. Bro. Gar. 4. Right is bound by it it extinguishes a Right 't is annexed to the Land and runs with it If then a collateral Warranty be of this nature 't is against all reason that he who is thus bound should make any Title to the Land but 't is very reasonable that he who comes in quasi by that Estate should defend his Title The Opinions of Iustice Jones and Iustice Crook in the Case of * Cro. Car. 368. Spirt and Bence has occasioned this doubt The Case was shortly thus Cann being seised in Fée had thrée Sons Thomas Francis and Henry and devised Lands to the two eldest in Tail and to Henry the Meadow called Warhay which was the Land in question but doth not limit what Estate he should have in it then he adds these Words viz. Also I will that he shall enjoy all Bargains I had of Webb to him and his Heirs and for want of Heirs of his * Notwithstanding the word Body he had but an Estate for Life in Warhay for that

praedicto loco c. but doth not say tempore quo c. for a Herriot tempore quo c. being left out and so doth not say a Herriot was due at the time of the taking of the Goods But he answered That that was usual and common and of that Opinion were all the Iustices and so it was held good It was farther objected That here is a variance between the Avowry and the finding in the Special Verdict The Avowant says that the Rent was 12 s. and 4 d. and the Iury find that it was but 3 s. and 1 d. He also saith that the Herriot was due upon every Alienation without notice and they find it due with or without notice But to that he said the Iury have doubted only of the last Point for the Avowry was not for Rent but for the Herriot so the substance is whether he had good cause to distrein for the Herriot or not Postea And as to that the Substance is sufficiently found like the Case in Dyer 115. Debt upon Bond for performance of Covenants and not to do waste the Breach assigned was that the Defendant felled twenty Oakes who pleads Non succidit viginti quercus praed ' nec earum aliquam the Iury find he cut down ten yet the Plaintiff recovered for though the intire Allegation of the Breach was not found because ten did not prove the issue of twenty literally yet the Substance is found which is sufficient to make the Bond forfeited So in Trespas where the Plaintiff makes a Title under a Lease which commenced on Lady-day Habendum à Festo c. and the Issue was non demisit modo forma the Iury found the Lease to be made upon Lady-day Habendum à confectione and so it commenced upon Lady-day and not à Festo c. which must be the day after the Feast yet 't was adjudged for the Plaintiff because the * Moor 868. Yelv. 148. Substance was whether or no the Plaintiff had a Lease to intitle himself to commence an Action Hob. 27. But in Ejectment or Replevin such a Declaration had been naught because therein you are to recover the Term and therefore the Title must be truly set out and in Replevin you are to have a Retorn̄ habend ' but in Trespas 't is only by way of excuse Sed quaere A second Reason is because both Plaintiff and Defendant in pleading have agréed the matter in this particular for both say the Rent was 12 s. and 4 d. 'T is a Rule in Law That what the Parties have agreed in pleading shall be admitted though the Iury find otherwise 2 Ass pl. 17. 18 E. 3. 13. b. 2 Co. 4. Goddard's Case Iurors are not bound by Estoppel ad dicend ' veritatem for they are sworn so to do unless the Estoppel be within the same Record but here that which is confessed cannot be matter of Issue not being Lis contestata It has beén objected that in 33 H. 6. 4. b. the Plaintiff brought Debt for 20 l. the Iury found the Defendant only owed 10 l. and the Plaintiff could never recover But that must be intended of a Debt due upon Contract and there the least variance will be fatal 38 H. 6. 1. As to the second variance 't is not material for 't is not true as the Avowant hath said for if the matter in issue be found the finding over is but surplusage both the Verdict and the Avowry agree that the Defendant may take a Distress in case of Alienation without notice And so he prayed Iudgment for the Defendant Judgment for the Defendant The Court were all of Opinion that Iudgment should be given for the Defendant for what is agréed in pleading though the Iury find contrary the Court is not to regard and here the substance of the Issue as to the second Point is well found for the Defendant Iudge Atkins told Serjeant Wilmot who argued for the Plaintiff that he had cited many Cases which came not up to the matter and so did magno conatu nugas agere for which reason I have not reported his Argument Smith versus Feverel Case for surcharging a Common THE Plaintiff brought an Action on the Case against the Defendant setting forth that he had right of Common in A. and that the Defendant put in his Cattel viz. Horses Cows Hogs c. ita quod Communiam in tam amplo modo habere non potuit The Defendant pleads a Licence from the Lord of the Soil to put in Averia sua which was agreéd to comprehend Hogs as well as other Cattle in the most general sense The Defendant demurs and after Argument the Court were all of opinion that Iudgment should be given for the Plaintiff because the Defendant in his Plea hath not alledged that there was sufficient Common left for the Commoners for the Lord cannot let out to pasture so much as not to leave sufficient for the Commoners And though it was objected that the Plaintiff might have replyed specially and shewn there was not enough yet it was agreed by the Court that in this Case he need not because his Declaration to that purpose was full enough and that being the very Gist of the Action the Defendant should have pleaded it It was held indéed that in an Action upon the Case by the Commoner against the Lord he must particularly shew the Surcharge but if the Action be brought against a Stranger such a shewing as is here is sufficient North Chief Iustice said and it was admitted that the Licence being general ad ponend ' averia it should be intended only of Commonable Cattel and not of Hogs Sed contra if the Licence had been for a particular time Anonymus A Man devises Land to A. his Heir at Law Devise and devises other Lands to B. in Fee and saith If A. molest B. by Suit or otherwise he shall lose what is devised to him and it shall go to B. The Devisor dies A. enters into the Lands devised to B. and claims it the Court were of Opinion that this Entry and Claim is a sufficient breach to entitle B. to the Land of A. It was also agreed that these words If A. molest B. by Suit c. make a Limitation and not a Condition Pl. Com. 420. the Devise being to the Heir at Law for if it were a Condition it descends to him and so 't is void because he cannot enter for the breach 3 Co. 22. Cro. Eliz. 204. Wellock and Hamonds Case Paying in the case of the eldest Son makes a Limitation Owen 112. So in the Case of Williams and Fry in an Ejectione firmae in B. R. lately for Newport-House A. deviseth to his Grand-daughter Provided and upon Condition that she marry with the consent of the Earl of Manchester and her Grandmother 't is a Limitation 2dly It was agreed That an Entry and Claim in this Case was a sufficient molestation for when the

any other thing which lies in Grant and the Deed is lost or cancelled the Office or the thing granted falls to the ground for the Deed is the foundation and a Case was cited in the Lord Dyer If there be two Iointenants and one cancels the Deed it hath destroyed the Right of the other Quaere of these things But it was agreed that if two Men who have one Office for their Lives and the survivor of them if one surrenders to the other and then a new Grant is made to this other and a Stranger he hath debarred himself of the Survivorship and he and the Stranger are jointly seised Crossman versus Sir John Churchil IN a Quare Impedit the Plaintiffs Title was set forth in his Declaration which was also found in a Special Verdict Where an Agreement for a Presentation by turns is good that Sir George Rodney was seised of the Advowson in Fée and died seised leaving two Sisters who were his Coheirs that Sir John Rodney being also one of the same Family and pretending a Right to the Estate for preventing Suits that might happen they all enter into an Agréement by Indentures mutually executed by which it was agreed that Sir John Rodney shall hold some Lands in severalty and the Co-heirs shall hold other Lands in the like manner and as for this Advowson a temporary provision was made thereof that each of them should Present by turns and this was to continue till partition could be made then comes an Act of Parliament and confirms the Indenture and Enacts That every Agreement therein contained shall stand and that all the rest of the Lands not particularly named and otherwise disposed by the said Indenture should be held by these three in common one of the three who by Agréement was next to Present grants the next Avoidance the Church being then full to the Plaintiff and the Question was whether these threé persons were not Tenants in Common of the Advowson and if so then the Grant of the next Avoidance cannot be good by one alone because he hath not the whole Advowson but only a Right to the third part It was said that if Tenants in Common had made such an Agreément it would not have beén any division of their interest for there must be a partition to sever the Inheritance The Court were all of Opinion Curia that Iudgment should be given for the Plaintiff for there was an Agréement that there shall be a Presentation by turns and therefore for one turn each hath a Right to the whole Advowson by reason of the Act of Parliament by which that Agreement is confirmed and thereby an Interest is setled in each of them till Partition made but this Agreement would have vested no Interest in either of them without an Act of Parliament to corroborate it therefore there had been no remedy upon it but by an Action of Covenant This Case was argued four times and not one Authority cited The Earl of Shaftsbury versus Lord Digby In Banco Regis For Words upon the Statute of 2 R. 2. c. 5. Jones 49. SCandalum Magnatum The Plaintiff declares upon the Statute of 2 R. 2. cap. 5. for these Words viz. You are not for the King but for Sedition and for a Common-wealth and by God we will have your Head the next Sessions of Parliament After Verdict for the Plaintiff and 1000 l. damages given it was moved in Arrest of Iudgment and several Exceptions taken 1. As to the Recital of the Statute the Words of which are That no Man shall devise any Lies c. and the Plaintiff for the Word devise had used the Latin Word contrafacio in his Declaration which was very improper that being to counterfeit and not to devise for it should have béen machino or fingo those are more expressive Words of Devise 2. 'T is alledged that the Defendant dixit mendacia of the Plaintiff viz. haec Anglicana verba sequen̄ and doth not alledge that he spoke the Words 3. The most material Objection was a mistake in the Recital of the Statute the Words of which are That none shall speak any scandalous Words of any Dukes Earls c. the Justices of either Bench nor of any other great Officer of the Kingdom but the Plaintiff in his Declaration recites it thus viz. None shall speak any scandalous Words of any Dukes Earls c. Justices of either Bench great Officers of the Kingdom and leaves out the Words neque al so that it must be construed thus None to speak of any Dukes Earls c. being great Officers of the Kingdom and then 't is not enough that the Plaintiff is Comes but he also ought to be a great Officer of the Kingdom which is not set out in this Case But upon great Debate and Deliberation these Exceptions were overruled and the whole Court gave Iudgment for the Plaintiff As to the first Exception they said contrafacio is a legal Word and apt enough in this sense and so are all the Presidents and thus it was pleaded in the Lord Cromwel's Case As to the second Exception it was said the Mendacia which were told were the English Words which were spoken and the viz. haec Anglicana verba sequen̄ being in the Accusative Case are governed by the same Verb which governs the Words precedent viz. horribilia mendacia Besides for the supporting of an Action the viz. may be transposed and then it will be well enough viz. the Defendant spoke haec Anglicana verba viz. Lies of the Plaintiff As to the third Exception it was answered that the Plaintiff neéd not recite the Statute it being a * Sid. 348. general Law and admitting there was no necessity yet if he will undertake to recite it and mistake in a material Point 't is incurable but if he recites so much as will serve to maintain his own Action truly and mistakes the rest this will not vitiate his Declaration and so he hath done here by reciting so much of the Statute which Enacts That no Man shall speak any scandalous Words of an Earl which is enough he being an Earl to entitle him to an Action and he concludes prout per eundem Actum plenius liquet and the Court grounded themselves principally upon a Iudgment given in this Court which was thus viz. There was a Robbery committed and the Party brought an Action upon the Statute of Huy and Cry in which he recited incendia domorum 13 E. 1. cap. 1. the said Statute beginning Forasmuch as from day to day Robberies Murders burning of Houses c. and the Presidents are all so But the Parliament Roll is Incendia generally without domorum and it was strongly urged that it was a misrecital which was fatal But the Court were all of Opinion that the Plaintiffs Case being only concerning a Robbery for which the Statute was well recited and not about burning which was mistaken it was for that reason good

Seck after demand is a disseisin Pl. Com. 92. b. much more in personal Actions where the substance is found 't is well enough 1 Inst 282. a. But the Court said That notwithstanding this Authority they would not intend a Conversion unless the Iury had found it especially in this Case because they ought to have found it to make the Servant lyable for if the conversion was to the use of his Master there is no colour for this Action to be brought against the Defendant but it ought to be brought against the Master Whereupon a Ve. fa. de novo was prayed to help the Insufficiency of the Verdict the conversion not being found but the Court said it was to no purpose to grant a new Tryal unless the Plaintiff had a new Case and so Iudgment was given for the Defendant Bill versus Nicholl Variance between the Record pleaded and the Record it self IN an Action brought in the Court of Exchequer the Defendant pleaded another Action depending against him for the same matter in the Common Pleas and upon nul tiel Record replied by the Paintiff a Day was given to bring in the Record and when it was brought in it appeared that there was a variance between the Record in the Common Pleas as mentioned in the Defendants Plea and the Record it self for the Defendant in his Plea had alledged one Gerrard to be Attorny instead of Gardiner who was Attorny upon Record and whether this was a failure or not of the Record was the question It was said on the Defendants side that it was such a variance that it made it quite another Action and on the Plaintiffs side it was said that an immaterial variance will not prejudice where the substance is found 7 H. 4. 1. Bro. Failure pl. 2. 15. Curia advisare vult Forest qui tam c. versus Wire Action lyes in the Courts at Westminster upon the Statute of 5 Eliz. but not an Information 3 Cro. 316. DEBT upon the Statute of 5 Eliz. cap. 4. for using the Trade of a Silk Weaver in London not having been an Apprentice seven years the Action was brought in this Court and laid in London and tried by Nisi prius and a Verdict for the Defendant and now the Plaintiff to prevent the payment of Costs moved by Mr. Ward against his own Action and said that it will not lye upon this Statute in any of the Courts of Westminster for 't is not only to be laid as here in the proper County but 't is to be brought before the Iustices in their Sessions and this is by force of the Statute made 31 Eliz. cap. 4. and 21 Jac. cap. 4. Which Enacts That all Informations upon Penal Statutes must be brought before the Justices of the Peace in the County where the Fact was committed But the Court were clear of 2 Cro. 178. Stiles 383. By the Opinion of Rolls Cro. Car. 112. Opinion That the Action may be brought in any of the Courts of Westminster who have a concurring Iurisdiction with the Iustices and so they said it hath been often resolved Attorny General versus Alston AN Inquisition upon an Accompt stated went out to inquire what Lands one Havers had in the twentieth year of this King or at any time since Where the Kings Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be liable by the Statute of the 13th Eliz. he being the Receiver General in the Counties of Norfolk and Huntingdon The Iury found that he was seised of such Lands c. whereupon an Extent goes out to seise them into the Kings Hands for payment of 1100 l. which he owed to the King Alston the Ter-tenant pleads that Havers was indebted to him and that he was seised of those Lands in 20 Car. 1. which was before the Debt contracted with him and that he became a Bankrupt likewise before he was indebted to the King and thereupon these Lands were conveyed to the Defendant by assignment from the Commissioners of Bankrupcy for the Debt due to him from Havers absque hoc that he was seised of these Lands at the time he became indebted to the King The Attorny General replies That he was seised of these Lands before the Commisson of Bankrupcy issued and before he became a Bankrupt and that at the time of his Seisin he was Receiver and accountable for the receipt to the King and being so seised in the 20the year of this present King he was found in Arrear 1100 l. for the payment whereof he was chargeable by the Statute of the 13 Eliz. cap. 4. Which subjects all the Lands of a Receiver which he hath or shall have in him during the time he remains accomptable and so prays that the Kings Hands may not be amoved To this the Defendant demurred And Sawyer for him held that the Replication was ill both in form and Substance 1. It doth not appear that the Defendant continued Receiver from the time he was first made as it ought to be or else that he was Receiver during his Life for if a Man is Receiver to the King and is not indebted but is clear and sells his Land and ceases to be Receiver and afterwards is appointed to be Receiver again and then a Debt is contracted with the King the former Sale is good 2. The Replication is a departure from the Inquisition which is the Kings Title for the Lands of which Inquiry was to be made were such which Havers had 20 Car. 2. And the Defendant shews that Havers was not then seised thereof but makes a good Title to himself by Indenture of Bargain and Sale made to him by the Commissioners of Bankrupcy and so the Attorny General cannot come again to set up a Title precedent to the Defendant for that is a departure 't is enough for the Defendant that he hath avoided the Kings Title as alledged and though Mr. Attorny is not bound to take Issue upon the Traverse yet he cannot avoid waveing both the Title of the Defendant and the King by insisting upon a new matter It was agreed That the King had two Titles and might either have brought his Inquisition grounded upon the Debt stated or upon the Statute of the 13th of Eliz. upon Havers his becoming Receiver but when he hath determined his Election by grounding it upon the Debt stated he cannot afterwards have recourse to the other matter and bring him to be liable from the time of his being Receiver as if an Inquisition goes to inquire what Lands the Debtor of the King had such a day when he entred into a Bond if there be an answer given to that Mr. Attorny cannot afterwards set up a precedent Bond because 't is a departure and the Statute it self vests no Estate in the King but makes the Receivers Lands lyable as if he had entred intred into a Statute Staple The Inquisition therefore should have been grounded

Heirs and Assigns that he and they from time to time during the said Lease should have liberty and full power to Fell the said Trees and root them up repairing the Hedges where they did grow That the said Martin granted some of the Trees to the Defendant by virtue whereof he and the rest of his Servants did cut them down which is the same breaking of the Close of which the Plaintiff complains To which Plea Mr. Pollexfen did demurr for the Insufficiency because the Defendant did not shew that upon cutting down the Trees he did repair the Hedges as by the Agreement ought to have been done for this being a limited and qualified power ought to be set forth at large and that it was a power only annexed to the Reversion and not assignable to any one else and so the Defendant hath wholly failed in his Plea he might have justified under Martin but not in any of their own Rights But the Court were of Opinion That an Action doth lie in this Case both against the Lessor and his Assignee acting under his Power and they agreed that a bare power was not assignable but where 't is coupled with an Interest it may be assigned and here was an Interest annexed to the power for the Lessor might sever the Trees from the Reversion Whereupon Iudgment was given for the Defendant Scoble versus Skelton Presciption must be alledged with a Seisin in Fee THE Plaintiff declared That he was seised of a Tenement called East and the Defendant of another Tenement called West Travallock and that he and all those whose Estate he had did use to fetch Pot Water from the Defendants Close c. Issue was taken upon this Prescription and a Verdict for the Plaintiff and Mr. Pollexfen moved in Arrest of Iudgment That the Declaration did set forth generally that he was seised and it did not appear it was in Fee for if it be for Life only then the Action doth not lie because a Prescription cannot be annexed to an Estate for Life Tremain insisted that the Declaration was sufficient and certain enough for when the Plaintiff doth alledge that he was seised generally it shall be intended a seisin in Fee especially after Verdict But the Court held the Declaration to be defective in Substance because a Prescription cannot be annexed to any thing but an Estate in Fee and therefore 't is not helped after Verdict The Iudgment was reversed Putt versus Roster A Recovery in Trespass good Plea in bar to an Action of Trover TRespass for taking of his Cattle The Defendant justifies for a Herriot and upon a Demurrer had Iudgment The Plaintiff did afterwards bring an Action of Trover and Conversion for the same Cattle and the Defendant pleaded the former Iudgment in Trespass in barr to this Action of Trover and the Plaintiff demurred Serjeant Maynard argued That the Plea was not good because Trespass and Trover are distinct Actions and one may be where the other is not as if an Infant give Goods to one an Action of Trover doth lie to recover them but Trespass will not So if Goods be delivered to another and he refuse to deliver them upon demand Trover but not Trespass will lie and therefore these being different Actions a Recovery in one shall be no barr to the other A Formedon brought in the Descender and Iudgment thereon is not pleadable in barr to a Formedon in Remainder There is a great difference between a barr to the Action 5 Co. 33.6 Co. 37. a. Cro. El. 667. Eo Entr. 38. b. 2 Cro. 15. pl. 20. Antea and to the Right as where an Administrator sues not knowing that he was made Executor and Iudgment against him and he afterwards proved the Will and brought an Action as Executor the former Iudgment had against him as Administrator shall not be a barr to this new Action because 't is not a barr to the Right for by misconceiving his Action the former abated But Mr. Holt argued That these were Actions of the same nature and therfore a Iudgment in one was a good Plea in barr to the other Trespass or Trover lies for taking or carrying away the Goods of another and when he hath made his Election which to bring a Recovery there shall be a perpetual barr to the other In an Appeal of Mayhem 4 Co. 39. the Defendant pleaded a former Recovery in an Action of Assault and Battery and held good though one is of a higher nature than the other But the Court were of Opinion Curia Rose and Standen Antea That an Action of Trover doth lie where a Trespass doth not and if the Plaintiff hath mistaken his Action that shall be no barr to him As to the Case put of the Mayhem Rozal and Lampen Antea that doth not agree with this because there can be no Mayhem without an Assault but there may by a Trover without a Trespass and though the Appeal of Mayhem be of a higher nature than the Assault because it doth suppose quod felonice Mayhemiavit yet the Plaintiff can only recover damages in both If a Man bring Trespass for the taking of a Horse and is barred in that Action yet if he can get the Horse in his possession the Defendant in the Trespass can have no Remedy because notwithstanding such Recovery the Property is still in the Plaintiff The Defendant in this Case hath justified the taking of the Cattle for a Herriot and by the Demurrer the justification is confessed to be true in fact now by the taking for a Herriot the property of the Goods was altered and wherever the Property is determined in Trespass an Action of Trover will never lie for the same but 't is a good Plea in barr and so it was adjudged here James versus Trollop Prescription for a Modus good ERror of a Iudgment in the Common-Pleas on an Action upon a Prohibition where the Plaintiff did suggest That William late Prior of Norbury in Staffordshire was seised of the said Mannor and of the Tythes thereof simul semel as of a portion of Tythes c. That the said Prior 25 H. 1. granted the said Mannor and Tythes to William Fitzherbert and his Heirs rendring Rent That the said Fitzherbert did Enter and was seised and held it discharged of Tythes that his Heirs afterwards granted two Hides of Land part of the said Mannor to S. with the Tythes at 5 s. Rent and so draws down a Title by Descent for 300 years to F. who being seised devised the same to Dorothy James under whom the Plaintiff in the Prohibition claimed and then concludes That Fitzherbert and all those whose Estate c. did pay the said Rent to the said Prior which since the Dissolution was paid to the King and his Assigns in discharge of all Tythes c. The Defendant having craved Oyer of the Deed demurred to the Suggestion and Iudgment was given for the Plaintiff