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Grown Matters happening at Salop Eng. Rep. 152 (1378-1865)

handle is hein.slavery/ssactsengr0911 and id is 1 raw text is: 152 MATTERS .OF. THE CROWN HAPPENING AT SALOP 1PLOWDEN,97. the plaintiff said that the place where the taking was, is out of his fee, and there it was said to be no plea, because he avowed the taking as for his own beast. (b) For he may avow the taking of his own beast wherever he can find it, as well out of his fee, as in it : wherefore the plaintiff relinquished his plea, and traversed the seizin of the heriot; prist, &Cc. And upon this issue was joined. And this they apprehended was a proof that the lord might well enough seize the best beast, for there the abbot justified the taking of the beast, and did not avow at all, which he could not have done, if he had not a propriety in it; and there out of his fee was no plea, which would have been a good plea if he had avowed, and had not claimed the beast as his own. And Bromley and Portman, Justices, took the said case as a good proof, that the lord might seize heriot-service, And Portman said, It appears also by (c) 16 Ed. 3. that the law is so.-And the counsel for the plaintiff said, that the common opinion amongst men learned in the law, is, that he may not seize heriot-service, but heriot- custom he may, and for heriot-service distrain. And this diversity is held good law in (d) 8 H. 7. and in other books and years of Henry 7. Bromley said, This diversity that you put is moved by the way in the years of Henry 7. but there is no principal case adjudged upon it. Then the counsel for the plaintiff said, If there be lord and tenant, and the tenant holds by a capon, or an egg, or 12d. rent, it is not lawful for the lord to come to the land, and take the capon or the egg, or the 12d. being in arrear, although he find it there, but his remedy is Qnly to distrain for it. And then what difference is there between a capon parcel of the tenure, and an ox parcel of the tenure ? To which it was said, there is a great difference between the cases put, and the principal case. (e) For in the cases put, if the tenant has 20 capons, or 20 eggs, or 20s. of money, he may give what capon, what egg, or what 12d. he pleases: so that the election is given to the tenant who shall pay the thing, and the lord shall not have which he pleases. (f) But in the case of a heriot, the tenant shall not have any election, nor the lord also, for the lord shall have the best beast, and such is the tenure, so that the thing is certain, in which case it. is reasonable that the lord should seize the thing. Therefore in the one case there is an election given to the tenant, and in the other not, and in the one case the lord knows the certainty, and in the other not ; and so is the diversity. And afterwards Portman recited the evidence to the jury, and said, You jurors, the counsel for both 'parties have prayed us the Judges to tell you what the law is in this point, viz. whether the lord may seize heriot. service or not. And we have advised together, and are agreed, and take the law to be, that the lord may seize (g) heriot-service well enough. And therefore take the law so by rule of the Court. Qiiod nota. And afterwards the jury found for the plaintiff upon other matter given in evidence. [97J A Report of certain Points, which were ruled and holden at the Sessions held at the Town of Salop, on Monday the Ninth Day of July, in the First Year of the Reign of our Sovereign Lady Queen Mary, and continued all that Week before Sir T. Bromley, Knight, Chief Justice of the King's Bench, Sir R. Townsend, Knight, Serjeant at Law, W. Simons, Apprentice, and the Queen's Attorney in the Marches of Wales, and E. Plowden, Utter-Barrister, of the Middle-Temple, and others, being Justices of the Peace, and Justices of Gaol Delivery assigned in the said County of Salop, to which Session was brought the Gaol of divers (b) N. Bendl. 30. pl. 47. Kelw. 82. pl. 2. (c) Fitz. Heriot, 2. (d) H. 8 H. 7. 10.-b. Fitz. Prescription, 23, Bro. Heriot, 7. Distress, 44. (e) Wing. Max. reg. 22. pl. 5. Cro. E. 590. (f) See Hetl. 16. Cro. E. 32. 590. touching the election. (g) Herewith agree Cro. E. 32. Peter v. Knoll, per Wray, C.J. ibid. 590. Odiham v. Smith, adjudged in error. Cro. C. 260. arguendo. Gouldsb. 191. pl. 128. per Gawdy. Lutwy. 1367. per 3 justices. 1 Show. 81. per Holt. C.J. Salk. 356. per G1ur. 3 Bac. Abr. 52. against the opinions in the old books, Temp. H. 8. Bro. Heriot, 6. infine. B. N. C. § 348. Dr. & Stud. lib. 2. cap. 9. Kelw. 82. pl. 2. per Frowick, C.J. 84. b. per idem. N. Bendl. 30. plt 47. 0. Bendl. 18. pl..71.

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