Thomas Wimbish and Elizabeth his wife, plaintiffs, and Elizabeth Tailbois, Defendant
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1816 |
| Date | 01 January 1816 |
| Court | High Court |
English Reports Citation: 75 E.R. 63
IN THE COMMON BENCH
1FLOWBEN.39. THE PLEADINGS: WIMBISH V. TAILBOIS 63 A Report of a Case argued in the Common Bench before all the Justices of the same Bench, in Michaelmas Term, in the Fourth Year of the Reign of King Edward the Sixth, between thomas wimbish and elizabeth his Wife, Plaintiffs, and elizabeth tailbois, Defendant, in a Writ of Trespass brought by the said Plaintiffs against the Defendant. And the Record was as follows : Trin. Term, 1. Ed. 6. Rot. 444. Lincoln. Declaration.-Elizabeth Tailbois, late of Golthough, in the county aforesaid, widow, was attached to answer Thomas Wimbish, Esquire, and Elizabeth his wife, of a plea, wherefore with force and arms the close of them the said Thomas and Elizabeth she broke, and their grass to the value of £40 there lately growing with certain cattle eat up, tread down, and destroyed, and other wrongs to them did, to the great damage of the said Thomas and Elizabeth, and against the peace of the Lord Henry the Eighth, late King of England, father of the lord the King now,J and against the peace of the lord the King now, &c. And whereupon the same Thomas and Elizabeth, by Roland Durant their attorney, complain, that the aforesaid Elizabeth Tailbois, widow, the third day of August, in the thirty-sixth year of the reign of the said Lord Henry the Eighth, late King of England, father of the lord the King now, with force and arms the close of them the said Thomas and Elizabeth at Golthough broke, and their grass to the value, &c. there lately growing, with certain cattle, viz. horses, oxen, cows, hogs, and sheep, eat up, tread down, and destroyed, the trespass aforesaid, as to the eating up, treading down, and destroying the grass aforesaid, from the aforesaid third day of August, in the thirty-sixth year aforesaid, until the day of obtaining the writ original of them the said Thomas and Elizabeth, viz. the fourth day of April, in the first year of the reign of the lord the King now, at divers days and times continuing. And other wrongs, &c. to the great damage, &c. and against the peace, &c. Wherefore they say that they are injured, and have damage to the value of 100 marks. And therefore they bring suit, &c. Bar.-And the aforesaid Elizabeth Tailbois, by John Poley her attorney, comes and defends the force and injury when, &c. And as to the coming with force and arms, says that ahe is not guilty thereof. And of this she puts herself upon the country ; and the aforesaid Thomas Wimbish and Elizabeth his wife do the like. And as to the residue of the trespass aforesaid above supposed to be clone, the same Elizabeth Tailbois says, that the aforesaid Thomas and Elizabeth his wife their action aforesaid against her ought not to have, because she says, that the close aforesaid, and also the places in which the trespass aforesaid is supposed to be done are, and at the aforesaid time of the trespass aforesaid above supposed to be done were, 40 acres of meadow, and 206 acres of pasture, with the appurtenances in Golthough aforesaid, which said 40 acres of mea-[39]-dow, and 206 acres of pasture are, and at the aforesaid time of the trespass aforesaid above supposed to be done, and also from time whereof the memory of man is not to the contrary were, parcel of the manor of Golthough with the appurtenances in the county aforesaid. Of which said manor with the appurtenances whereof, &c. long before the aforesaid time when, &c. one Georgo Tailbois, knight, grandfather of the aforesaid Elizabeth, the wife of the aforesaid Thomas Wimbish, whose heir the same Elizabeth is, was seized in his demesne as of fee. And the same George being so seized of the manor aforesaid with the appurtenances whereof, &c. by the name of George Tailbois, Knight, Lord of Kince, by his certain deed indented, sealed with the seal of the aforesaid George, and inrolled of record in the Court of Chancery of the said late King (which the aforesaid Elizabeth Tailbois here brings into Court, the date whereof is the eighteenth day of January in the fourth year of the reign of the said late lord the King) at Golthough aforesaid, gave, granted, and by his same deed confirmed to one Richard, by the grace of God then Bishop of Winchester, William, by the same grace then Bishop of Lincoln, J Note here tile trespass alledged to be against the peace of both Kings, when he counts of part done in a former King's time, and part in the present King's time. Hale on F. N. B. 86. i. 1 Rol. R. 259. Cuddingtm v. Wilkins adjudged. Notes oh 1 Finch, 307. 64 the pleadings: wimbish v. tailbois iplowden,39. Thomas Wolsey, then Dean of Lincoln, William Tirwhit, Robert Dimock, Robert Constable, Knights, John Constable, then Archdeacon of Huntingdon, Edward Derby, then Archdeacon of Stowe, Thomas Burgh, junior, Robert Tirwhit, Numan Marken-field, Esquires, Henry Gascoign and John Ridley, clerks, the aforesaid manor, of Golthough, with the appurtenances, amongst other things, whereof, &c. to have and to hold the same manor with the appurtenances whereof, &c. amongst other things, to the aforesaid Richard Bishop of Winchester, William Bishop of Lincoln, Thomas Wolsey, William Tirwhit, Robert Dimock, Robert Constable, and John Constable, Edward Derby, Thomas Burgh, Robert Tirwhit, Numan Markenfield, Henry Gascoign, and John Ridley, their heirs and assigns, to the use of the aforesaid George Tailbois and the aforesaid Elizabeth Tailbois then his wife, and the heirs of their bodies between them lawfully begotten, and for default of such issue of the bodies of the same George and Elizabeth lawfully begotten, then to the use and behoof of the aforesaid George Tailbois, and the heirs of the body of the same George lawfully begotten : and for default of such issue of the body of the same George, to the use and behoof of the right heirs of the aforesaid George for ever. By virtue of which feoffment, they the same Bishop of Winchester, Bishop of Lincoln, Thomas Wolsey, William, Robert Dimock, Robert Constable, John Constable, Edward, Thomas Burgh, Robert Tirwhit, Numan, Henry, and John Ridley, were seized of the aforesaid manor with the appurtenances whereof, &c. in their demesne as of fee, to the use and behoof aforesaid. And the same Bishop of Winchester, Bishop of Lincoln, Thomas Wolsey, William, Robert Dimock, Robert Constable, John Constable, Edward, Thomas Burgh, Robert Tirwhit, Numan, Henry, and John Ridley, being so seized of the manor aforesaid with the appurtenances whereof, &c. to the same uses, the aforesaid Bishop of Winchester, Bishop of Lincoln, Thomas Wolsey, William Tirwhit, Robert Dimock, Robert Constable, John Constable, Edward Derby, and John Ridley died. And the aforesaid Thomas Burgh, Robert Tirwhit, Numan Markenfield, and Henry Gascoign, survived them, and held themselves in the same manor with the appurtenances, whereof, &c. and were seized thereof in their demesne as of fee to the same uses by right of survivorship, &c. at and until the fourth day of February in the twenty-seventh year of the reign of the said late lord the King; on which day, by statute, &c. the aforesaid George Tailbois and Elizabeth his wife were seized of the same manor with the appurtenances whereof, &c. in their demesne as of fee tail, to wit, to them and to the heirs of their bodies between them lawfully begotten ; and the said George and Elizabeth being so seized thereof, the same George afterwards, and before the aforesaid time when, &c. at Golthough aforesaid, of such estate of and in the manor aforesaid with the appurtenances whereof, &c. died seized. And the aforesaid Elizabeth Tailbois survived the said George, and held herself in the same manor, with the appurtenances whereof, &c. and was thereof sole seized in her demesne as of fee tail in manner and form aforesaid by right of survivorship, &c. And the aforesaid Thomas Wimbish and Elizabeth his wife claiming the manor aforesaid with the appurtenances whereof, &c. by colour of a certain deed of demise thereof made to them for term of their lives by the aforesaid George, long before the aforesaid feoffment by the same George to the aforesaid Bishop of Winchester, Bishop of Lincoln, Thomas Wolsey, William, Robert Dimock, Robert Constable, John Constable, Edward, Thomas Burgh, Robert Tirwhit, Numan, Henry, and John Ridley, of the manor aforesaid, with the appurtenances whereof, &c. in form aforesaid made, where nothing of the said manor with the appurtenances whereof, &c. ever passed by that deed into the possession of the said Thomas Wimbish and Elizabeth his wife, entered into the manor aforesaid with the appurtenances whereof, &o. before the aforesaid time when, &c. upon which possession thereof of the said Thomas Wimbish and Elizabeth his wife, the same Elizabeth Tailbois afterwards, to wit, the same time when, &c. into the manor aforesaid, with the appurtenances whereof, &c. re-entered, and the close aforesaid broke, and the grass aforesaid in the aforesaid 40 acres of meadow, and 20G acres of pasture then growing, with the cattle aforesaid eat up, tread down, and destroyed, as it was lawful for her to do. And this she is ready to verify, wherefore she prays judgment if the aforesaid Thomas Wimbish and Elizabeth his wife their action aforesaid against her ought to have, &c. Explication.-And the aforesaid Thomas Wimbish and Elizabeth his wife say, that for any thing before alledged, they ought not to be precluded from having their action iplowben,. the pleadings: wimbish v. tailbois 65 aforesaid, because they say that well and true it is, that the aforesaid George Tailbois, grandfather of the aforesaid Elizabeth, now wife of the said Thomas Wimbish, was seized of the manor aforesaid with the appurtenances whereof, &c. in his demesne as of fee. And being so seized thereof, he the aforesaid 18th day of January, in the fourth year of the reign of the said late...
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