William Hill, Plaintiff, in an Action of Trespass, and John Grange, Defendant
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1816 |
| Date | 01 January 1816 |
| Court | Court of Common Pleas |
English Reports Citation: 75 E.R. 253
COURT OF COMMON PLEAS
See Thomas v. Owen, 1887, 20 Q. B. D. 232; Roe v Giddons, 1888, 22 Q. B. D. 237
Averment not necessary in avowry, S. P. 3 M. 1. Bro. Averment, 61. B. N. C. 468. Co. Litt. 303. a. 8 Co. 161. a. Hardr. 79. Briclgm. 21. Doc. Pla. 49, 50. 1 Finch 175. 2 Pinch 359. Heath's Max. 35. 4 Bac. Abr. 373. Vin. Abr. tit. Averment, B. pi. 24. 26. post. 342. See Statute 4 & 5 Ann. cap. 16. And note, he and also Brown, Justice, said, that the avowry was not good, because the avowant had not averred his plea. But afterwards the prothonotaries searched their precedents, and told the justices that the common usage in such avowry was to make the avowry ut supra, without averment, with which the justices were satisfied. And afterwards Brook said to Justice Saunders, (as I was informed by Saunders himself) that he was content that judgment should be given for the plaintiff', and accordingly the same term judgment was given for the plaintiff' by awurd of the Court, as hereafter appears by the rest of the record. At which day here came as well the aforesaid John Throckmerton, as the aforesaid Richard Tracy and William Nicholson, by their attornies aforesaid ; whereupon the premisses being seen, and by the justices here more fully understood, it seems to the same justices that the aforesaid plea of the aforesaid John Throckmerton, upon the aforesaid writing indented to the avowry of the aforesaid Richard, and to the cognizance of the aforesaid William, in manner and form aforesaid, above in bar pleaded, is sufficient in law to maintain the action of the aforesaid John Throckmerton, for the taking the cattle aforesaid against the aforesaid Richard Tracy and William, and to preclude the said Richard Tracy and William from their avowry and cognizance aforesaid, against the aforesaid John Throckmerton, as the aforesaid John hath above alledged, Therefore it is considered that the aforesaid John do recover against the aforesaid Richard and William his damages, by reason of the taking and unjust detention of the cattle aforesaid. But because it is unknown what damages the same John has sustained by reason of the taking and unjust detention of the cattle aforesaid, it is commanded to the sheriff, that by the oaths of good and lawful men of the county aforesaid, he diligently enquire what damages the aforesaid John has sustained, as well by reason of the taking and unjust detention of the said cattle, as for his costs and charges by him about his suit in thia behalf laid out; and the inquisition which, &c. the sheriff should make appear here from the day of the Holy Trinity, in fifteen days, under his seal and the seals, &c. At which day here came the aforesaid John Throckmerton, by his attorney aforesaid. And the sheriff, viz. Walter Dennis, Knight, now returned a certain inquisition, taken before him at Winchoomb, in the county aforesaid, the seventh day of June last past, by the oaths of twelve, &c. by which it is found, that the aforesaid John has sustained damages by reason of the premisses, besides his costs and charges by him about his suit in this behalf laid out, to the amount of £30, and for his costs and charges £8. Whereupon it seems to the justices here that the aforesaid John shall mitigate the damages aforesaid for costs, &c. in a reasonable manner, to be released before they give judgment thereon, wherefore it is ordered to the said John that he do so. And thereupon the same John remits here in Court, to the aforesaid Eichard Tracy, 60s. of the said damages, and prays judgment of the residue of the damages aforesaid to be rendered to him ; whereupon the said 60s. being deducted and taken off, it is considered that the aforesaid John do recover against the aforesaid Richard and William, the residue of his damages aforesaid, to the amount of £35, by the inquisition aforesaid above found. And the aforesaid Richard in mercy, &c. 1 PLOWDBN. 1H. THE PLEADINGS! HILL V. GRANGE 253 [164] Note, That fifteen Days after St. Michael, in the second and third Years of the Reign of King Philip and Queen Mary, seven new Serjeants were made, viz. out of the Inner-Temple, John Prideaux, who was of the County of Devon ; out of the Middle-Temple, Francis Morgan, who was of the County of Northampton, Robert Catline, who was born at Thrapston, in the County of Northampton, and dwells in the County of Bedford, and Anthony Brown, who was of the County of Esses ; out of Lincalu's-Irm, William Rastal, who was born at the City of Coventry, but for the most part dwells in London and Kent, and W. Bendloe, of the County of Essex ; and out of Gray's-Inn, John Walpole, of the County of Norfolk. And they argued their Case, called the Serjeant's Case, in Easter and Trinity Terms, in the second and third Years of the Reign of the same King and Queen. And the Justices argued the said Case in the Term of St. Michael, then next following, viz. in the third and fourth Years of the Reign of the said King and Queen. And the Case was depending in the Common Bench, between william hill, Plaintiff, in an Action of Trespass, and john grange, Defendant, a brief Report whereof here follows. And the Record was read thus. [See Thomas v. Owen, 1887, 20 Q. B. D. 232; Roe \. Guidons, 1888, 22 Q. B. D. 237.] Hill. Term, 2 & 3 P. & M. Rot. 412. Essex. ty/(: *c - Declaration. - Same Precedent. Hast. Entr. 657. b. pi. 8. - John Grange, late of Great Eston, in the county aforesaid, yeoman, was attached to answer William Hill of a plea, wherefore with force and arms the closes and house of the said William, at Great-Dunmow, he broke, and his grass to the value of £10 there lately growing, with certain cattle eat up, trod down and consumed, and other wrongs to him did, to the great damage of the said William, and against the peace of the lord the King and lady the Queen now, &c. And whereupon the same William, by John Bill his attorney, complains that the aforesaid John, the tenth day of November, in the second and third years of the reign of the lord the King and lady the Queen now, with force and arms the closes and house of the said William, at Great-Dunmow, broke, and his grass to the value, &c. there lately growing, with certain cattle, viz. horses, oxen, cows, hogs, and sheep, eat up, trod down, and consumed, and other wrongs, &c. to the great damage, &c. and against the peace, &c. wherefore he says that he is damnified, and has damage to the value of £20, and thereupon he brings suit, &c. Bar as to part. - And the aforesaid John, by Robert Bedingfield his attorney, comes and defends the force and injury when, &c. and as to the coming with force and arms says, that he is not guilty thereof, and of this he puts himself upon the country ; and the aforesaid William likewise. And as to the rest of the trespass aforesaid, above supposed to be done, the same John says that the closes and house aforesaid, and also the places in which the trespass aforesaid is supposed to done, are, and at the time aforesaid when the trespass aforesaid is supposed to be done were, one messuage, 100 acres of land to the same messuage appertaining from time beyond the memory of man, and 100 acres of meadow, with the appurtenances, in Great-Dunmow aforesaid. And as to any trespass in the aforesaid messuage and 100 acres of land, with the appurtenances, of the tenements aforesaid, the same John says, that the aforesaid William his action aforesaid thereof against him ought not to have,: because he says that before the aforesaid time, when the trespass aforesaid is supposed to done, one Henry Pate was seized of the same messuage and 100 acres of land, in his demesne as of fee, and being so seized thereof before the aforesaid time when, &c. viz. the sixth day of August, in the second and third years of the reign of the lord the King and lady the Queen now, at Great-Dunmow aforesaid, by a certain indenture made between the aforesaid Henry of the one part, and the aforesaid John of the other part, (one part whereof sealed with the seal of the said Henry, the same John here brings into Court, the date whereof is the same day and year) demised the aforesaid messuage, with all the lands to the same messuage appertaining to the aforesaid John, to have to him and his assigns, from the same sixth day of August, until 254 THE PLEADINGS: HILL V. GRANGE 1PLOWDEN, 168. the end and term of 20 years from thence next following and fully to be compleat, yielding therefore yearly to the aforesaid Henry and his heirs forty shillings, at two terms of the year, that is to say, at the Feasts of the Annunciation of the Blessed Virgin Mary, and of St. Michael the Archangel, to be paid by equal portions, by virtue of which demise the same John was and yet is possessed of the same messuage and 100 acres of land. And the aforesaid William, claiming the aforesaid messuage and 100 acres of land by colour of a certain deed of demise thereof made to him for term of his life by the aforesaid Henry Pate, long before the demise aforesaid made to the said John (where nothing of the said messuage and 100 acres of land ever passed into the possession of the aforesaid William by that deed) into the same messuage and 100 acres of land before the aforesaid time when, (fee. entered, upon the possession of which said William thereof, the same John afterwards, viz. the same time when, &c. claiming his term aforesaid, into the said messuage and 100 acres of land re-entered, and the grass in the same 100 acres of land then growing, with the cattle aforesaid eat up, trod down, and consumed, as it was lawful for him to do; and this he is ready to verify, wherefore he prays judgment, if the aforesaid William his action aforesaid thereof against him ought to have, &c. And as to any trespass in the aforesaid 100 acres of meadow, the residue of the tenements aforesaid, with the appurtenances, the same John says...
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