baldwin v smith Essex sacred scripture declaration in replevin scot John smith  gentle be summon to answer to William Baldwin of a plea wherefore he take the  cattle of the say William and they unjust detain against gauge and pledge c a  and whereupon the say William by Isaac Hamond his attorney complain that the  aforesaid John the that day of January in the that year of the reign of the  lady the now queen b at Bocking in a certain place c call the meadow abut upon  the common highway lead from Braintree into Pantfield in the county aforesaid  towards the northeast and upon the land of John mott towards the southwest  take the cattle d that be to say sheep of he e the say William and they unjust  detain against gauge and pledge until c whereupon he say he be injure and have  damage to the value of pound and thereof he bring suit c and the aforesaid  John by Thomas Reynolds his attorney come and defend the force and injury when  c and as bailiff of John ken gentle son of John ken gentle decease well  acknowledge the take of the cattle aforesaid in the place aforesaid in which c  and just c because he say that the same place in which it be suppose the take  of the cattle aforesaid ante p b with regard to the effect of a common  recovery it may be further observe that it bar not only remainder and  reversion and all charge thereon but likewise all collateral condition and  conditional limitation subsequent to the estatetail Fearn ex Dev that edit  Benson v Hodson Mod lev Goodear v clarke I lev keb page v Hayward big Gulliver  v Ashby burr Ambl driver d Edgar v Edgar Cowp Nicholls v shepherd bro c c but  a rend reserve upon a gift in tail be not bar by a recovery though a condition  of reentry be see white v west cro Elizabeth lev Mod Pigot Freem Rep pl vin  Abr recovery common g Cru dig d edit so a common recovery bar all contingent  remainder depend on the estate whereof the recovery be suffer Plunkett v  Holmes lev sir t raym pale yellow use Loddington v kime I ld raym salk lev  Fearn carter v Barnardiston p wms do d brown v holme will Goodright v Dunham  dougl Goodright v Billington id and it operate as a bar to power appendant or  in gross king v mell vent lev Saville v Blackett I p wms and as a  extinguishment of a power relate to the land Cru dig Albany case post I   b  and the note there though not of a collateral power ibidem Sugd pow d edit and  last a recovery suffer after a erroneous fine will bar the issue in tail from  bring a writ of error to reverse the fine Barton v lever cro Elizabeth ED a as  to replevin in general see ante p a n a ED b that the precise day be not  material ante p a n b as to the declaration in general ante p a n b c ED c  that the place where the distress be take must be describe with certainty it  be material and traversable hob will will Wentw sand ante p a n c ED d that  the description and number of the cattle shall be state with certainty ante p  a n d ED e the property must be correct state ante p a n e Com dig pleader  king ED coke report a er p above to be do contain in itself acre of pasture f  with the appurtenance in Bocking aforesaid which four acre of pasture with the  appurtenance be and at the time aforesaid when c be the soil and freehold g of  the say John ken the son and because the cattle aforesaid at the time  aforesaid when c be in the same place in which c then eat the grass and do  damage there the say John smith as bailiff of the aforesaid John ken the son  do well acknowledge the take of the cattle aforesaid in the place aforesaid in  which c and just c there so do damage h c and the aforesaid William Baldwin  say that the say John smith as bailiff of the say coke Report64a John ken the  son for the reason before allege ought not to acknowledge the take of the  cattle aforesaid to be just because be say that long before the say time of  the take aforesaid do one John archer gentle be seize of the aforesaid four  acre of pasture with their appurtenance in which c in his demesne as of fee  and he the say John be thereof so seize before the aforesaid time of the take  aforesaid do that be to say on the that day of January in the that year of the  reign of the lad the now queen aforesaid give licence I unto the say William  to put his cattle aforesaid into the aforesaid place in which c to eat the  grass there grow by virtue of which licence the say William afterward that be  to say on the aforesaid that day of January in the that year aforesaid put his  cattle aforesaid in the place in which c to eat the grass there grow which  cattle be in the say place in which c eat the grass then grow in the same  until the say John smith on the aforesaid that day of January in the that year  of the lady the now queen aforesaid at Bocking aforesaid in the aforesaid  place call the meadow take the cattle aforesaid of he the say William and they  unjust detain against gauge and pledge until c as he above against he complain  without this king that the aforesaid four acre of pasture with the  appurtenance in which c at the time of the take aforesaid do be the soil and  freehold of the say John ken the son as the say William above have allege and  this he be ready to verify l wherefore inasmuch as the say John smith  acknowledge the take of the cattle aforesaid in the aforesaid place in which c  the say William pray judgement and his damage by the occasion of the take and  unjust detain the same cattle to be adjudge to he c and the aforesaid John  smith as before say that the aforesaid four acre of pasture with their  appurtenance in which c at the time aforesaid when c be the soil and freehold  of the say John ken the son as he before have allege and of this he put  himself upon the country and the say William Baldwin likewise and therefore it  be command to the sheriff that be cause to come here from the day of holy  Trinity in three week c by who c and who neither c to recognize c because as  well c and afterward the process be continue between the f that it be not  necessary to state that the place contain a certain number of acre see Lutw I  ld raym sand d ante p b will g ED g in a avowry or cognizance in right of a  freeholder it be sufficient to say his soil and freehold though it be against  the common rule of plead because these word apply as well to a estate in tail  or for life as to a estate ill fee and if the avowant be seize either in tail  or for life he ought regular to show the commencement of it ld raym sand d  however to say that he be seize general without say of what estate be bad on  special demurrer sander v Hussey Lutw Carth ld raym see further as to a avowry  for damage pheasant Chit plead sand d Bos and pull ED h that this conclusion  without a verification be proper sand ED I as to this plea in bar see Com dig  plead king m c as to plead a licence in general Com dig pleader m vin Abr  licence Chit plead ind title licence and that in trespass a licence must be  plead and can be give in evidence under the general issue t r with respect to  plead in bar in replevin in general see Chit plead two ED king as to traverse  in general ante p a will p ED l see ante p b coke report a er p aforesaid  party of the aforesaid plea by the juror between they be respite here until  this day that be to say from easterday in three week in the that year of the  reign of the say lady the now queen and now here at this day come as well the  aforesaid William as the aforesaid John smith by their atorneys aforesaid and  the juror thereof impanel be call likewise come who to say the truth of the  premise be choose try and swear say upon their oath that one Francis coke  Report64b archer be seize of the say four acre of pasture with their  appurtenance in which c in his demesne as of fee and hold the same of one  Thomas Wilson as of his manor of in the county aforesaid in free socage m and  that the say Francis archer have issue one Robert archer which Robert have  then issue the aforesaid John archer the son and his right and next heir  apparent which aforesaid Francis archer so of the aforesaid four acre of  pasture with the appurtenance be seize before the say time when c that be to  say in the that day of November in the year of our Lord make his last will and  testament in write n and by the same his last will will and bequeathe the  tenement aforesaid with the appurtenance among other thing as follow item I  give and bequeathe to Robert archer my first son all that my message or  tenement with the appurtenance call the greyhound with all and singular the  land and ground which and whatsoever I late purchase and buy of one John  palmer as they be set lie and be in Bocking aforesaid to have and to hold the  say message or tenement and other the premise late purchase and buy of the say  John palmer as be aforesaid to the say Robert archer my son from and after the  day of my death forward during his natural life and after the death of Robert  archer my say son I will my say message or tenement call the greyhound  together with all the say land and ground which I late purchase of the say  John palmer shall whole remain to the right and next heir of the same Robert  archer and to the heir of his body lawful beget for ever and afterward the  aforesaid Francis archer die of the aforesaid four acre of pasture with the  appurtenance among other thing in form aforesaid seize and the say juror  further say upon their oath that the aforesaid Francis archer purchase the  aforesaid four acre of pasture with their appurtenance of the aforesaid John  palmer in the aforesaid last will of the aforesaid Francis name and the juror  further say upon their oath that after the death of the say Francis archer the  aforesaid Robert archer be son and heir apparent of the aforesaid Francis into  the aforesaid four acre of pasture with their appurtenance enter oh and be  thereof seize of such estate as the law in this case require and the say  Robert so thereof be seize before the aforesaid time when c that be to say on  the saint day of January in the that year of the reign of the say lady the now  queen by his deed of feoff p coke Report65a with the seal of the say Robert  seal and to the juror aforesaid in evidence show feoff one John ken father of  the say John ken in the conusance aforesaid above name of the aforesaid four  acre of pasture with their appurtenance in which c among other thing by the  name of all that his message or tenement and all house building barn orchard  and garden with the appurtenance sometime call or know by the name of the  greyhound or other m the tenure be state because the statute of will h c and h  c authorize a disposition by will of the whole of socage land though only  twothirds of land hold by knight service can be devise under those statute  until the abolition of military tenor by the Charles c see Inst b two and the  note ib as to socage tenure by which land be now general hold see Bl Com I  Inst a ED n in plead a will it must be show to have be make in write in  pursuance of the statute and Henry c sand a ante p b n t ED oh that in the  case of a devise of a freehold interest no assent of the executor be to be  state Inst a two east east sand ED p it be not usual nor in general necessary  to plead a feoff by deed sand t r but it seem to be proper where the feoff as  in this case contain a warranty of which the party mean to avail himself see  Inst a two g hob ante p b n V ED coke report b er p wise or by what other name  or name the same be call or know situate lie and be in Bocking aforesaid in a  street there call Bocking eand and of all those land meadow and pasture to the  same belong or appertain or with the same at any time then before demise use  or occupy lie and be at Bocking aforesaid to have and to hold to the aforesaid  John ken the father his heir and assign for ever to the proper use and behoof  of the say John his heir and assign for ever and further the say Robert archer  and his heir by the deed aforesaid all and singular the aforesaid message or  tenement house building meadow pasture and other the premise aforesaid with  the appurtenance to the aforesaid John ken the father his heir and assign to  the use in the say deed mention against all man do warrant Q as by the say  charter of feoff to the juror aforesaid give in evidence it more full appear  by virtue of which feoff the aforesaid John ken the father be seize of the  aforesaid four acre of pasture with their appurtenance in which c in his  demesne as of fee and further the juror aforesaid say upon their oath that  after the feoff aforesaid in form aforesaid make the aforesaid John archer son  and right and next heir apparent of the aforesaid Robert archer in the life of  the aforesaid Robert archer and John ken the father into the aforesaid four  acre of pasture with the appurtenance in which c upon the possession of the  aforesaid John ken the father thereupon enter upon the possession of which say  John archer thereof the say John ken the father afterward reenter and be of  the aforesaid four acre of pasture with their appurtenance in which c seize as  the law in this case require and the say John ken the father so thereof be  seize before the aforesaid time when c that be to say on the that day of may  in the that year of the reign of the lady the now queen make his testament and  last will in write p and by the same his last will give and bequeathe to the  aforesaid John his second son and his heir the aforesaid four acre of pasture  with the appurtenance in which c among other thing and afterward and before  the say time when c the aforesaid John ken the father of such estate of the  aforesaid four acre of pasture with the appurtenance in which c die seize  after who death the aforesaid John ken the son into the aforesaid four acre of  pasture with the appurtenance enter S and be thereof seize of such estate as  the law in this case require and coke Report65b afterward and before the  aforesaid time when c the aforesaid Robert archer die after who death the  aforesaid John archer the son and right and next heir of the aforesaid Robert  archer into the aforesaid four acre of pasture with the appurtenance in which  c upon the possession of the say John ken the son thereupon enter and be  thereof seize as the law in this case require and the say John archer so  thereof be seize on the aforesaid that day of November in the that year  aforesaid give licence t to the say William Baldwin to put his cattle  aforesaid into the aforesaid place in which c to feed upon the grass in the  same then grow by virtue of which licence the say William afterward that be to  say on the aforesaid that day of January in the that year abovesaid put his  cattle aforesaid into the aforesaid place in which c to feed upon the grass  then and there grow which cattle be in the same place in which c feed upon the  grass therein until the aforesaid John smith as bailiff of the aforesaid John  ken the son on the aforesaid that day of January in the that year abovesaid  into the aforesaid place call the meadow to the use of the say John the son  enter and take the aforesaid cattle of the aforesaid William and then detain  against gauge and pledge until c as the aforesaid William Baldwin above  against the aforesaid John smith complain and if upon the whole matter  aforesaid by the juror aforesaid in form aforesaid find it shall seem to the  justice and the court here that the aforesaid four acre of pasture with their  appurtenance in which c at the aforesaid time when c be Q see post a n as to  the nature and operation of warranty in general see ante p a n b Inst two a  sheep touch Chap warranty Com dig guaranty ED r ante p b n n S ante p b n t  ante p a n coke report a er p not the soil and freehold of the aforesaid John  ken the son then the say juror say upon their oath that the aforesaid four  acre of pasture with the appurtenance in which c at the aforesaid time when c  be not the soil and freehold of the aforesaid John ken the son as the  aforesaid William Baldwin above have allege and then they assess the damage of  the say William Baldwin by occasion of the take and unjust detain of the  aforesaid cattle beside his cost and charge by he about his suit in this  behalf expend to penny and for his say cost and charge to penny and if upon  the whole matter aforesaid by the juror aforesaid in form aforesaid find it  shall seem to the justice and court here that the aforesaid four acre of  pasture with the appurtenance in which c at the aforesaid time when c be the  soil and freehold of the aforesaid John ken the son as the say John smith  above allege then they assess the damage of he the say John smith by the  occasion of the premise beside his cost and charge by he about his suit in  this behalf expend to penny and for his cost and charge to penny and because  the justice here will advice themselves of and upon the premise before they  give their judgement thereof coke Report66a day be give to the say party here  until the morrow of the holy Trinity to hear their judgement thereof because  the same justice here thereof be not yet c at which day here come as well the  aforesaid William as the aforesaid John by their atorneys aforesaid and  because the justice here will further advice themselves of and upon the  premise before they give their judgement thereof a further day be give to the  say party here until in eight day of saint Michael to bear their judgement  thereof because the same justice here thereof be not yet c at which day here  come as well the aforesaid William as the aforesaid John by their atorneys  aforesaid and because the justice here will further advice themselves of and  upon the premise before they give their judgement thereof day be give to the  say party here until in eight day of saint Hilary to bear their judgement  thereof because the same justice here thereof be not yet c at which day here  come as well the aforesaid William as the aforesaid John by their atorneys  aforesaid and because the justice here will further advice themselves of and  upon the premise before they give their judgement thereof a further day be  give to the party aforesaid here until from easterday in day to hear their  judgement thereof because the same justice here thereof be not yet c at which  day here come as well the aforesaid William as the aforesaid John by their  atorneys aforesaid and because the justice here will further advice themselves  of and upon the premise before they give their judgement thereof a further day  be give to the party aforesaid here until the morrow of the holy Trinity to  hear their judgement thereof because the same justice here thereof be not yet  c at which day here come as well the aforesaid William as the aforesaid John  by their atorneys aforesaid and upon this the premise be see and by the  justice here full understand it be a grant that the say William take nothing  by his writ aforesaid but be in mercy for his false clamour and the aforesaid  John thereof may go without day c and that he have a return of his cattle  aforesaid to hold for ever irreplegiable u c and how c that the sheriff make a  roll Bulstr Syd   a b a a hob latch Noy Poph palm n Benl pl Cr Elizabeth jenk  c ent Cr James roll r Bulstr Cr car Yelv hob stat and car c stat and car c  ante p b n ten u at commonlaw the judgement for the defendant in replevin on  verdict demurrer or confession by the plaintiff be to have a return of the  good irreplevisable but previous to the statute of Westminster Edward c the  return be never irreplevisable after a nonsuit whether before the avowry or  after or before or after issue join because where the defendant have judgement  for a return on a nonsuit though after verdict that judgement be not find upon  the verdict but on the default of the plaintiff in withdraw himself at a  continuance day after the verdict pale yellow Rep by this statute however it  be provide that coke report a er p it appear here in eight day of saint  Michael c it be also grant that the aforesaid John recover against the say  William his damage to penny by the juror aforesaid in form aforesaid assess as  also pound shilling and penny to he in case the plaintiff be nonsuit the  defendant shall have a writ de retorno to have for the return of the good into  his custody to be sell or dispose of as if no replevin have be make and the  plaintiff can have a new replevin but must sue out a writ of second  deliverance pale yellow Rep c S seven and if he be a second time nonsuit the  distress shall remain irreplevisable for ever Inst but in case of a distress  for rend arrear the writ of a second deliverance be in effect take away by  statute car c vent which direct that if the plaintiff be nonsuit before issue  join then upon suggestion make on the record in nature of a avowry or  cognizance or if judgement be give against he on demurrer then without any  such suggestion the defendant may have a writ to inquire into the value of the  distress by a jury and shall recover the amount of it in damage if less than  the arrear of rend or if more then so much as shall be equal to such arrear  with cost or if the nonsuit be after issue join or if a verdict be against the  plaintiff then the jury impanel to try the cause shall assess such arrear for  the defendant and if in any of these case the distress be insufficient to  answer the arrear distrain for the defendant may take a further distress or  distress saint car c Bl Com the judgement at commonlaw be not supersede by  this statute see baker v lade Carth but the remedy give by the Act be attend  with this advantage that the writ of inquiry may be execute notwithstanding  the plaintiff have sue out a writ of second deliverance Cooper v Sherbrook  will whereas the writ of second deliverance if deliver to the sheriff before  return make operate as a supersedeas to the writ of retorno to have issue on  the commonlaw judgement Inst Prat v Rutleis Mod Selw Inst three c that in  replevin there can be no judgement as in case of a nonsuit for not try the  cause because both plaintiff and defendant be consider as actor either may  have bring down the record Eggleton v smart I Bl Rep Jones v concannon t king  Inst three c as to cost in replevin or second deliverance the defendant make  avowry cognizance or justification for rend custom or service or for damage  pheasant be entitle to cost by the h c S and h c S if the avowry cognizance or  justification be find for he or the plaintiff be nonsuit or otherwise bar  which statute extend to avowries c make by a executor roll Rep or for a estray  cro Elizabeth and as it shall seem for a amercement by a court leet cro James  Tidds prac semb contra cro Elizabeth Selw n p frame ten but not to plead of  prisel en auter lieu upon which the writ be abate Com Rep ld raym or to plead  of property in the thing distrain hard by the car c S the defendant obtain  judgement thereon for the arrear of rend or value of the good distrain be also  entitle to his full cost of suit and by the Geo c S if the defendant avow or  make cognizance in replevin upon a distress for rend relief heriot or other  service and the plaintiff be nonsuit discontinue his action or have judgement  against he the defendant shall recover double cost of suit under this latter  statute the lessor be entitle to double cost as well against a three person  the owner of the good distrain as the lessee himself Finley v Seaton taunt but  it seem this statute be confine to avowries under tenure for it have be hold  that it do not extend to a rend charge will Bos and pull new Rep ante p a n f  nor to a seizure for a heriot custom barn will say cost nor to a avowry for  rend decree to be pay by commissioner under a canal Act to the owner of land  take for the purpose of the Act though he be empower to distrain the good of  the company even off the premise in case of nonpayment of such sum the company  of proprietor of the Leominster canal navigation v Norris t r I Bos and pull  Tidds pract that edit and as this statute give double cost against the  plaintiff in replevin only in three case videlicet where he be nonsuit  discontinue his action or have judgement against he in a recent coke report a  er p the say John at his request for his cost and charge aforesaid by the  court here of increase adjudge which damage amount in the whole to pound c  case where the cause not be then at issue the party agree by bind to submit  the question to arbitration the cost to abide the event and the arbitrator  afterward award in favour of the defendant it be hold that he be not entitle  to double cost under the statute Gurney v buller barn and Ald the statute h c  and subsequent statute videlicet James c and car c by which the defendant in  error be entitle to cost and damage be confine to judgement recover by the  original plaintiff below and affirm in error and therefore a avowant in  replevin for rend in arrear for who judgement on verdict be give below which  be affirm on a writ of error be not entitle to be allow interest on the sum  recover by the judgement Golding v Dias east and it be also hold in this case  that the defendant be not entitle to cost under the and W c S this statute be  confine to case where judgement be give on demurrer for defendant below east  Selw as to execution in replevin the execution upon a judgement for the  defendant be at commonlaw for the return of the cattle or good or upon the  statute car c for the arrearage of rend and cost in the former case the writ  of retorno to have short recite the proceed and judgement in replevin and  command the sheriff to cause the cattle or good to be return to the defendant  to hold to he irreplevisable for ever after judgement on verdict or demurrer  see the form Tidd append ch xlii S or since the statute of Edward c upon a  nonpros for want of a declaration id S or plea in bar id S or nonsuit at the  trial that he do not deliver they on the complaint of the plaintiff without  the king writ of second deliverance id S make express mention of the judgement  see Selw when judgement be give on demurrer for a return of the good the  avowant may immediate have a writ of retorno to have and inquiry of damage and  after verdict or inquiry execute he may have a retorno to have and become  facias for the damage and cost in the same writ Tidd pract that Edward see the  form d append ch xlii S if the cattle or good be eloigned or remove by the  plaintiff so that the sheriff can deliver they on the writ of retorno to have  the defendant on the sheriff return of withdraw may either have a capias in  withernam for take other cattle and good in lieu of they or he may sue out a  to know facias against the pledge for a return at commonlaw or if the distress  be for rend and the sheriff have take a replevin bind under the statute Geo c  S the defendant may take a assignment of it and bring a action thereon against  the pledge if sufficient or in case the sheriff have omit to take a bind or  the pledge be insufficient at the time of take it he may proceed by to know  facias or action on the case against the sheriff for his neglect of duty but  not by attachment the king v Lewis t r sand e Inst three c but where the  defendant proceed upon the statute car c for the arrear of rend and cost he  can have a writ of retorno to have nor consequent proceed against the pledge  on account of the plaintiff not make a return of the cattle or good nor as it  seem against the sheriff for take insufficient pledge Tidd pract as to the  liability of the sheriff for take insufficient pledge in replevin see t r h Bl  taunt SaLind e Inst three c ante p a d a ED coke report b er p