| 1373.067 |
1373 |
Common Pleas |
Trespass for breaking dovecote and killing doves |
Trespas |
| Mich. |
47 |
Edw. 3 |
54a |
22b-23a |
Hasty, Henry de Sjt (for D)
Tauke, William Sjt Tank (for P)
Fyncheden, William de CJCP Finch
Hanmer, David Sjt Ham
Fyncheden, William de CJCP Finch
Tauke, William Sjt Tank
Fyncheden, William de CJCP Finch
Tauke, William Sjt Tank
Fyncheden, William de CJCP FInch
Hasty, Henry de Sjt
Rob (for D)
Fyncheden, William de CJCP Finch
Hasty, Henry de Sjt |
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Smith, T.
Isabel, daughter of T. Smith, defendant's wife
Katherine, daughter of T. Smith |
T., manor of |
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Fitzherbert Trespas 204
Brooke Trespas 63
Brooke Tenants in comon 3
Brooke Accompt 20
Statham Trans 14 |
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| En un briefe de Trespas, quare vi & armis columbar' le plaintife fregit, & ducentas columbas precii xl. s. |
28 |
| In a writ of Trespass, (Latin begins) why with force and arms he broke the plaintiff's dovecote, and killed 200 doves, price 40 shillings, by which he totally lost the birds of the dovecote, and other enormities (Latin ends), the defendant said that the place where the dovecote was assigned was held of the manor of T., which was ancient demesne of the king; judgment if the Court would take cognisance, (Latin begins) and this was not allowed (Latin ends). Then the defendant said that one T. Smith was seised of a house, in which the dovecote was assigned, in his demesne as of fee, and died seised, after whose death this descended to his two daughters. One of them alienated that which belonged to her to the plaintiff, and the husband of the other sister was defendant, and he demanded judgment if against him, who was thus a tenant as undivided (pro indiviso), an action etc. The plaintiff said, judgment, since by his writ he had supposed that the defendant had destroyed all the birds, and he could not have an action of Waste, nor another action, and he prayed that the defendant be attainted, because if two parceners held as undivided (pro indiviso), and sowed the land, and one carried it all off, the other would have an action of Trespass, (Latin begins) and this was granted by Fyncheden CJCP (Latin ends), so in this case when one had a several right etc., but it would be otherwise of joint tenants, (Latin begins) as was said (Latin ends). A serjeant said that if two had an ox in common, and one sold the whole, and retained to himself, he would not have an action of Trespass, but a writ of Account. Fyncheden CJCP said that so he would well have of one animal as of several animals. The plaintiff said that an action of Account had been maintained, and also an action of Wardship, for cutting wood that was held as undivided (pro indiviso). Fyncheden CJCP said that a wardship that was held as undivided (pro indiviso) was a real matter, not severable, so that although one took all the profit, he could not have an action of Trespass, but of Account. But not so here, because here he could have the Assize, and make a plaint for the half, and also two joint tenants, if one disseised the other, the Assize for the half lay etc., and this action lay as well for him as an Assize, not so in the case of wardship. The plaintiff said that he could also name his companion and demand the whole. Fyncheden CJCP said yes, but he would be amerced there, and here judgment would be given to hold in severalty in such case etc., so that etc. he told the defendant to answer, the writ was good enough, and the defendant's plea was to the action for the half etc. The defendant said, as before, that one T. Smith was seised of the same tenements, and died seised, after whose death they descended to Isabel and to Katherine, as to two daughters of J. (should be T.). Katherine had granted all that which belonged to her to the one who was plaintiff, and the other took John Berdwike, the defendant, as husband. The defendant said that the plaintiff (frema) the door of the dovecote, and the defendant (les averom'), and took the young doves etc. And then he said, as before, without this that he had carried off any old doves; ready etc. To which it was rejoined that the freehold belonged solely to the plaintiff; ready. (Latin begins) And the other side said the contrary (Latin ends). |
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