Sir Henry North v Cole
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1823 |
| Date | 01 January 1823 |
| Court | Court of Common Pleas |
English Reports Citation: 124 E.R. 915
COURT OF COMMON PLEAS
sir henry north versus cole. Trespass. Trespass for breaking his close, treading his grass, &c. 1 Jan. 17 Car. 2, the places assigned upon the new assignment are West-Delph and West-Hill. As to West-Hill, the defendant saith the plaintiff ought not to have his action, because it is part of a manor, and the defendant was seised of certain messuages in the said manor, and was a freeholder, and had fee, &o. and time out of mind there have been in that manor divers free tenants, and that there are and have been divers customary tenements, parcal of the manor, grantable by copy of court-roll, and all the free-tenants of the manor, and customary-tenants habent & habere consueverunt solam & seperalem pasturam pro omnibus averiis suis (dogs, sheep, and steers excepted) quolibet anno at certain times in the year, &c. As for the other land, they lay a like prescription for feeding all the year long. Upon this they demur. Earl Serjeant pro querente. This cause is the first in president or practise that ever I heard of. Exceptions to this plea. 1. The defendant hath laid a prescription and a custom together to make one joynt title. A prescription for all the freeholders tenants, and a custom for divers copyhold tenants, and they are laid together as one joynt title ad solam & seperalem pasturam. They that will claim solam & seperalem pasturam must claim by one title. Two men cannot claim so, unless under one joynt title ; for if one had aolam & separalem pasturam to him, and another to him, it were void: if they had moieties, then it would not be sola & separalis pastura. He puts custom and prescription together; things opposite in nature. If there were two prescriptions, or a prescription and a custom to two several men, they cannot be tried in one issue; it's against a rule in law. Yelv. p. 217, Divrant and Child's case. Therefore a man cannot plend a prescription against a prescription, without traversing a former prescription. Croke Car. p. 432, Spooner and Day's case. [200] Windham Serjeant to this. By law and by authorities it appears, titles may be made by prescription or custom to a sole feeding. My brother said the profits are the land; I say profit apprender out ol another land is not the land. 3 Ed. 3, fo. 29. 46 Ed. 3, fo. 23. Usage is as good against the lord as another. Fitzh. tit. Prescription, 55, Coke, Coment. sur Litt. 122. A man cannot claim by prescription...
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Barns v Freeman
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