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(1) A plea of a prescriptive right of common for one hundred sheep, is maintained by proof of such right for one hundred sheep and six cows. Cro. Eliz. 722. Bushwood v. Pond. A declaration stating a prescriptive right of the plaintiff to have a reasonable toll of all corn brought into their market to be sold, and sold there, excepting corn sold there by or to a freeman of the borough, is maintained though it appear that corn sold to a freeman is not exempted from toll. 1 Taunt. 142, Tewkesbury v. Bricknell. So if the jury find the prescriptive right claimed, and further find a distinct usage to pay something for it, it is sufficient, for this is collateral to the prescription, and the prescription is perfect without it. Cro. Eiz. 405, Wilcox v. Watson. But if the jury find the prescription prout, &c. 'paying for it every year 1d.' the prescription as pleaded fails; for the prescription is entire, and the payment of the penny is parcel of it. Cro. Eliz. 563, Lovelace v. Reignolds. Bul. N.

P. 59.

[64 b]

WEBB.

If a plaintiff surmise that he is bailiff to the sheriff, and thereupon pray process to the coroners which is granted; whether process may afterwards be awarded to the sheriff, and if it is, whether it is such a misawarding of process as is helped by the statute of jeofailes, quære.

or sheriff
cross. Yel.
15. Cr. El. 894.

Co. L. 1584.
Mo. 422, 356.
And Cr. El. 574.

ACTION was brought by A. B. against Webb, and issue Award process joined, and then the plaintiff made surmise, that he was to the coroner bailiff and servant unto Grimstone, the sheriff of Essex, and therefore prayed process, &c. to the coroners, which being confessed, the entry was et ei conceditur. yet afterwards the ven. fac. went to the sheriff, and the jury past for the plaintiff. And this was moved in arrest of judgment by serjeant Towse, and the question was whether this grant to the coroners being merely in favor of the plaintiff, to avoid his delay by challenge, may not as well be left after it is granted, as before, have been required at the first.

Next, whether this be not a misawarding of process Yel. 15. remedied by the statute of jeofailes.

[65]

Norfolk.
Goldsborough.

Devise of land

purchase as

and then may

Cr. Jac. 599.

GREEN US. ARMSTEED.

Devise to A. for life, reversion to his son B. except A. do purchase another house with so much land of equal value for B. and then the said A. may sell the house and land devised as his own, is a devise of a fee simple to B. after the death of A.

An express devise shall not be altered by subsequent general or doubtful words.

IN trespass by Robert Green against William Armsteed to A. except B. for lands in Clay, the case was thus, that Ralph Green much for him, had issue William, and William had issue Robert the sell the other. plaintiff, and Thomas his younger son, and being seised of these lands in Clay, and of certain lands in Stukey, did make his will concerning the same as followeth. Item, I will that William Green my son shall have my house and land in Clay for the term of his natural life, and then to remain to Thomas Green his son, except the said William Green do purchase another house with so much land, and so good in value as the said house and land in Clay, for the said Thomas his son, and then the said William shall sell the said house and lands in Clay as his own. And the said Thomas Green shall pay or cause to be paid to his sisters, 10 pounds of good English money in form following, that is to say, to each of them 20 shillings by the year, until the said sum of 10 pounds be fully contented and paid to the sisters.

Cr. Car. 158.

2 Cro. 416. Roll. 1 Abr.

834. Co. L. 189. a.

Item, I give my land and house in Stukey and elsewhere to Richard Manset for term of his life, and then to remain to Robert Green and the heirs males of his body, and for default of such issue to Thomas, and he to pay 40 pounds to the children of Robert. The only question was, whether Thomas, under whom the defendant claims, took a fee simple in the lands of Clay, or but for term of his life; for William purchased no other lands for him, and both William and Thomas are dead. And it was adjudged without difficulty that he took a fee simple after the death of William; for though the first words taken by themselves would have given him but an estate for life, yet the word purchase in the second clause imports in common speech an absolute purchase in fee, though a purchase may be also for life; as fee imports fee simple,

and the feast of S. Michael the most notorious and eminent feast, except it be otherwise specified. And therefore if a man appoint his executors to purchase 100 pounds land for a younger son, no doubt it will import a fee simple. Also he says that if William purchase, then he shall sell the land in Clay as his own, that is, he shall have power to sell them then, and not before. Whereas if Thomas took an estate but for life, he might have sold them before as his own.

[65 a]

L. 9. b. 1 Cr.

527, 591, 599,

Again, he was appointed to purchase other house and land of as good value (not yearly value) as the house and land in Clay. Now the value of the land is according to the value of the whole estate. And so it is apparent that the meaning was, that he should have the one land of as good value and estate as the other; and that appeared 6 Co. 16. a. Co. also in that he was to pay the 10 pounds howsoever; and 158. 2 Cr. 416, it was urged, that the payment of 10 pounds did also en- 3 Co. 21. 3 Cr. force a fee simple, which were clear, if the will be under- 205, 378. stood, that he should pay his 20 shillings a year, from the death of the testator before his estate fell in possession. But because I rather take the meaning otherwise, the paying of 20 shillings yearly could be no peril unto him, because if his estate should cease, he would cease his payment; otherwise it had been to pay his 10 pounds at once, but yet it would have made the legacies of 20 shillings a year unto the daughters uncertain, which the testators made certain, for otherwise he would have said, that he should have paid it by 20 shillings a year, if the estate came to him, and they live so long. And for the other clause it was holden clearly, although it spake of the lands in Stukey, or elsewhere, that elsewhere can never extend to the lands in Clay upon all the parts of the will, as before, though he have no lands but in Clay and Stukey. But the word elsewhere shall be rather surplusage and void, than by such a loose word to alter a large, plain and words. 2 Cr. particular devise before. (1)

(1) See ante Widlake v. Harding, and the note thereto, p. 2.

Ro. 2 Ab. 253.
Vent. 351.

3 Lev. 438. 2

Devise express

shall not be al

tered by
doubtful

599.

[66]

COCKE VS. JENNOR.

Lit. Sect. 376.

Ro. 2. Ab. 412.

Release to one

trespasser dischargeth all

3 Cro. 31. 3

Leo. 122. Co.

L. 232.

A release to one of several joint trespassers discharges the whole, and is as good a satisfaction in law, as a satisfaction in deed.

If joint trespassers be sued in one action and sever in pleading, yet one jury shall assess damages for all; and if they are sued in several actions, though the plaintiff may elect the best damages, yet he can have but one satisfaction, and if he require two an audita querela will lie.

THOMAS COCKE brought an action of trespass against 10 H. 6. 41. b. Kenelme Jennor for breaking his house at Dunmow, and beating him the last day of October, in the tenth year of the king. the king. The defendant pleads, that he together with one Robert Milborne, in the time of the trespass supposed, did jointly break the plaintiff's house, and beat him, and that afterwards on the thirteenth day of June, 11 Jac. R. the plaintiff did release unto the said Milborne by his writing, which the defendant shows in court, all actions real and personal, &c. and avers, that the trespass whereof the plaintiff complains, and which he and Milborne releases all his did jointly, est una et eadem, et non alia neque diversa. them, it being Whereupon the plaintiff demurred, and it was adjudged a joint disseisin for the defendant; for though a trespass be joint, and several to this purpose, that he may sue either one or all, yet when two join in a trespass, they so make one trespasser, as either of them is as well answerable for his fel243. N. B. 107. low's fact as for himself. And therefore a release to one e. 1 Cr. 55. 2

If there be two disseisors of lands, and the disseisee

right to one of

and trespass,
the releasee
shall hold his

companion out.
10 Co. 119. a.
3 Leo. 53.

Ante 59. 1 Cr.

Cr. 349, 385. dischargeth the whole trespass; and also a release is as Co. 7. a. 5. b. good a satisfaction in law, as a satisfaction in deed; (1)

27 E. 3. 83. 10

1 Cr. 58, 192.

Post. 70. 11
Rep. S. J.
Heydon 180,
164. 2 Cro. 118.

3 Leo. 122. 10
Co. 119. a. 3
Cro. 860. Cr.
Jac. 351, 349.
39 E. 3. 17.
Yelv. 68. ac-
cord.

(1) A release to a person as a joint trespasser, who is, in fact, not liable as such to the plaintiff, will not destroy the plaintiff's right of action against those who are liable. 3 Johns. 175, Wilson v. Reed.

In an action by tenants in common for a trespass committed on land of which they are coheirs, a release by one of the plaintiffs is a bar to the action. 13 Johns. 236, Austin v. Hall.

In trover against two defendants, one pleaded not guilty and a verdict against him, the other pleaded a release of all actions and had a verdict for him, and it was held that the plaintiff was not entitled to judgment against either; because, the trover being joint, the release discharged both. 4 Mod. 379, Kiffin v. Willis.

But a release must be construed according to the particular purpose for which it was made. Therefore where a release was given to one of two partners, with a proviso that it should not prejudice any claims against the other partner, and that in order to enforce the claims against the other it should be lawful for the releasor to sue either the other or both the partners separately or jointly, it was held that this was no bar to an

and therefore if an executor release, the debt released is judged assets in his hand. Now against joint trespassers, there can be but one satisfaction, and therefore if they be sued in one action, though they may sever in pleas and issues, yet one jury shall assess damages for all; and as to the damages, he that is no party to the issue, shall have an attaint as well as his fellows; and if they be sued in several actions, though the plaintiff make choice of the best damage, yet, when he hath taken one satisfaction, he can take no more, and if he require two, an audita querela will lie.

action brought against both to recover of the other, payment of money due from both. 2 Brod. & Bing. 38, Solly v. Forbes.

[66 a]

LEDSHAM US. RowE & MUDGE.

Where there are divers issues joined, a ven. fac. awarded ad triandum exitum istum, is sufficient.

Venire fac.

triandum exi

there are di

vers others.

2 Ro. 667.

Post. 64.

THOMAS LEDSHAM brought an action of trespass against Co. B. John Rowe and Christopher Mudge, for imprisoning of Trespass. him five days; John pleaded not guilty to four days, awarded ad whereupon issue, and to the other day justification, and tum, where thereupon another issue; and then Christopher did divide his pleas in like manner, into two, whereof the latter was a justification, and thereupon issue taken, and then follows the award of the ven. fac. in these words, ideo quoad triandum tam exitum quam prædictum alium exitum inter prædict. Thomam et præfatum Johan. Rowe superius mentionat. præceptum est vic. &c. And it was excepted, that this award was insufficient, as being uncertain, and could not be applied to all, though the jury had given verdict for all; but it was ruled good, because exitus may respectively serve for all, reddendo singula singulis.

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