chalk against peter this case be argue this term by Harris young sergeant for  the defendant and by Haughton for the plaintiff and sergeant Harris conceive  that sir Francis Barrington be within the intent of the Act of if it chap for  he have grant of tree of inheritance and this be all the profit which rise  upon the soil and for that it shall be intend of the soil it self and to prove  that he cite Parramor and Fardleyes case in the Com and h crook Elizabeth dyer  where it be agree by three justice that the patentee or grantee of herbage in  a forest shall have trespass against any which consume and destroy the grass  but not the tree nor of the fruit of that and the trespass of that shall be  quare enclosed space to break in pieces as well as if it be of land and may  enclose the forest by such grant see Edward by Littleton that vestura terroa  do not pass without livery also admit that he be not owner of the ground  within the statute yet it seem by the statute that they be it shall be lawful  for the same subject owner c and to such other person to who such wood shall  happen to be sell immediate after the wood so cut to fence and enclose the  same ground with sufficient hedge able to keep out c upon which word he infer  that sir Francis Barrington be such a person to who the wood be sell and for  that may enclose and also be conceive that the I statute be general and  concern all person in general and also all forest and chase whatsoever and for  that it be not like to the case put in holland case coke upon the statute of  Elizabeth which concern all ecclesiastical person in general that there  Brownlow goldsborough er p be a general Act and yet concern but one genus in  articular but the statute of pi Elizabeth be otherwise which concern the  bishop which be but a species of this genus as it be resolve in elmer case of  coke and also he conceive that it shall be relieve by the statute of h and so  pray judgement for the defendant and Haughton conceive that the word of the  statute intend such a person to who wood be sell for one turn only and not he  which have inheritance of wood and that there be no word in the statute to  exclude commoner and such a vendee be not without remedy for he be within the  statute of h if he pursue his remedy accord to the statute and so pray  judgement for the plaintiff Brownlow goldsborough and at another day foster  justice argue that the plaintiff in the replegiare shall recover and say that  the cause consist of three part first the arbitrament second the assurance  three the private Act of parliament of h and to those the arbitrament and the  assurance shall tie only those which be party to it and no other and the  commoner be not party to that nor shall not be bind and the private Act  confirm the assurance save the right of all stranger by which the commoner be  exempt and also the statute be make only as confirmation of tble grant and for  that it shall not extend to any other thing nor to other party but those only  which be party to the grant as if the queen have make a voidable patent and  after have make a lease for year and after by the statute of Elizabeth all  letterspatent make within such a time be confirm this make the letterspatent  good against the queen but not against the lessee and also all the covenant in  the grant extend only to the Lord Richard and his heir and these which claim  under he and for that it shall not extend to the commoner and also the private  Act save the right of all stranger by which the right of the commoner be save  and he conceive that the commoner shall not be exclude by the statute of  Edward chap which recite that if any subject have any wood grow in his own  ground within any forest chase c shall cut the same wood by licence of the  king or his heir in forest chase c or without licence in the forest chase e of  any other person or make any sale of the same wood it shall be lawful to the  same owner of the same ground whereupon the wood so cut do grow and to other  such person to who the say wood shall happen to be sell immediate c to cut and  enclose the same ground with sufficient hedge able to hold out all manner of  cattle and beast and to continue the same by the space of seven year without  sue of any other licence of he or of his heir or of any other person or of any  their officer of the same forest chase c by which word it appear that the  statute do not extend to any wood of the king but only to the wood of the  subject lie in forest of the king or of other person owner of the forest or  chase and if it be in the king case and he have licence from the king to cut  the wood then may he cut it without other licence accord to the preclose of  the Act and the statute do not give licence to enclose without the assent of  the commoner but without other licence of other officer of the forest and by  this statute the owner of the ground may first cut the wood and then enclose  but by the statute Brownlow goldsborough of h otherwise it be for by this he  may first enclose and then cut within four month and that sir Francis  Barrington have no interest in the soil and that this statute of Edward be a  private statute and ought to be plead for it concern only forest and chase and  it be no other than if it have be all wood in park and resemble that to the  statute of Eliza of the bishop which concern only the bishop and it be resolve  in elmer case to be private and the same judge shall not take notice of that  without plead and it be not like the statute of Elizabeth which concern all  manner of spiritual person in general and also that this statute be repeal by  the statute of h which be a negative law and law m earlier times contrary  abrogate and it be agree in porter case coke and so he conclude that judgement  shall be give for the plaintiff Warburton justice to the contrar and yet be  agree that neither the arbitrament nor the conveyance nor the private Act  exclude the commoner for these reason which have be urge by foster but be rely  only upon the statute of Edward and to that he say that the statute give power  to the owner of ground to enclose and it shall be frivolous for he to enclose  if the commoner shall not be by that exclude and he say that the person  mention in the statute be two Brownlow goldsborough er p the first be the  owner of the ground and such person he agree sir Francis Barrington be not the  second be such person to who such wood shall happen to be sell and such person  it seem be sir Francis Barrington and yet he agree that he have a inheritance  in the tree and the owner of the soil can cut they nor dig the soil from the  root of the tree for then the grant can not take effect and he say there be no  difference between sale of wood though that the statute speak of the person to  who wood shall be sell and another person to who it shall be give without  consideration and to that be resemble the statute Westminster chap si quis to  make strange errant wife sum non deserratur c send to look out for emptor c  though that the statute mention buyer only yet donee without any consideration  shall be intend in it and that the statute do not intend within it and that  the statute do not intend sale only vice tanturn but rather sale of  inheritance for such vendee may rather intend the preservation of the wood  than the other and he infer upon those word begin the statute to enclose the  same ground with hedge sufficient to keep out all Inanner of cattle and beast  out of the same ground and these word expound themselves for they shall not be  intend deer but cattle which belong to commoner and so be the statute of west  chap if infant suffer usurpation this shall not bind he but this shall be  intend where he have advowson by Brownlow goldsborough dissent and not by  purchase and this appear by the word of the statute which be cum some vim  proesentandi non to have prmsentavit ad aliquan church pron  interrog   prmsentatus sit admission ipse who spit be patron per no one other breve  recuperate to be able legal support how per breve de recto quod debet  perminare per duel um well per great assisam per quod hredes infra otatem to  step out per fraud heedlessness opustodis multotie exhmreditatem to bear e by  which word it appear that there ought to be presentation which passes by fraud  and negligence of the guardian which the statute remedy and that be  presentation which he have by dissent and not by purchase and in the time of  Edward Fitzherbert trespass it be say the law of the chase that none may  enclose his own wood without the view of the forester and if the statute of  Edward give licence to enclose and that notwithstanding the commoner may put  in his beast then be the statute make in vain and it be resolve in the of  Edward Fitzherbert trespass that if a man hunt in park or chase that this be  not within the statute of Westminster chap Edward so the statute of Edward  extend to the kin S deer and also to other beast which shall be inunded the  cattle of the commoner and it be not repeal by the statute h for these statute  be make for several purpose and consist upon several ground and if the statute  of Edward be repeal then there can be enclosure in forest or chase at all and  which be general law and the justice ought to take notice of that without  plead and that all law to some respect may be intend to be special as the  statute of Elizabeth concern only spiritual man and so Charta de forest  concern only forest and the statute of h chap give appeal to the wife for the  death of the husband and though that all these statute concern one thing only  and for that to some intent may be say to be special yet they be all general  law and so he conclude that judgement shall be give for the defendant  walmesley agree with foster in all that be that sir Francis Barrington have  nothing but profit in another solon and for this cause be not within the  statute of Edward which may enclose and the commonlaw do not exclude the  commoner for the Lord Richard grant the wood and this transit cum load to sir  Thomas Barrington and say that it be in vain to dispute if the statute of  Edward be private law or if it be repeal which make nothing in the case and so  he brief conclude that judgement shall be give for the commoner which be the  plaintiff coke chief justice agree that judgement shall be give for the  plaintiff and do agree that the arbitrament the conveyance nor the private act  make nothing in the case for by these the commoner can be bar of his common  but for the statute of Edward Brownlow goldsborough he will first consider how  the law be before the make of that and as to that it appear by the statute of  Charta de forest that by the commonlaw no man which be owner of wood in which  another have common that they can not enclose but assize of common or action  upon the case lie as it require and if it be several wood within the king S  forest in which none have interest of common then he may enclose by the view  of forester and this hold enclose by the space of three year as it appear by  the preamble of the statute of Edward cum Brownlow goldsborough er p little  foffato bassabaia that be a little ditch and low hedge for that the king dear  be not shut out and this appear in the register in the writ of ad quod daninum  Fitzherbert no Bre f and then come the statute of Edward and give power to  enclose with such sufficient hedge able to keep out all manner of beast and  cattle and then consider between what person the statute be make and to that  he conceive it be make between the king and his successor of one part and  subject have wood grow upon their own ground and such person unto who such  wood shall happen to be sell of the other part and a commoner be not name in  the statute and also the body of the statute be not general but there be some  word in one sentence and this be but a sentence and can be divide the word be  first the say hedge so make may keep c second and repair and maintain they as  often as need shall be within seven year three without sue any other licence  of he that be the king or his heir or other person that be which have forest  or chase or any of their officer and here the sentence conclude and there be  no period before they so that this statute be make between the king and owner  of forest and chase of one part and owner of wood in their own soil and other  person to who such wood shall be sell on the other part this shall not extend  to other person commoner and it be like to the case in Elizabeth dyer a man  make a lease for year and covenant that the lessee shall enjoy the term  without eviction of the lessor or any claim under he if he be evict by a  stranger this shall be no break of the covenant for a stranger be no party to  the deed nor claim under the lessor and for this his entry shall not give  action to the lessee and so be the case in h between the prior of Castlelon  and the dean of saint Stephens which be adjudge the h pasch rot though that no  judgement be report where it appear that the king Edward seize all the land of  prior alien in time of war for that that they carry the treasure of the king  out of the realm to the king enemy and so it be make by h also during the time  of his reign and then in the second year of Brownlow goldsborough the reign of  king h by a statute make between the king and the say prior alien all the  possession of the say prior be resume into the hand of the say king and  adiudaed in h before that this shall not extend to the prior of Castleton  which have annuity issue out of the possession of the say prior for the say  prior of Castleton be not party to the say Act of parliament and for that be  shall not be prejudice by that and so it be adjudge and Elizabeth in the court  of ware in the case of one boswel where the king make a lease for year which  be voidable and after by another patent grant the inheritance and then come  the statute of Elizabeth to confirm all patent make by the say queen within  her tin and adjudge that the say Act shall not make the say patent void to the  patentee which be a stranger to the Act of the parliament but only against the  queen her heir and successor for by the statute it be make only against oine  person only and shall not be good against another though there be no save of  such person in the say Act and also he conceive that the statute of Edward do  not extend to any wood in forest in which another have common for it do not  extend only to such wood which a common person have in the king forest or  common person and that it may be enclose for the space of three year after the  cut of the wood in this before the make of the say statute and this be no wood  in which a estranger have common as it appear by the preamble of the say  statute and then after in the say statute it be say such wood may be enclose  and also be conceive where the statute say that they may enclose the same  ground voith such sufficient hedge able to keep out all manner of beast and  cattle out of the same ground but this refer to the quality of the hedge for  before it ought to be a small ditch and by this statute it ought to be with  such hedge which shall be able c and it shall not be refer to the manner of  the cattle but for the difference between beast of forest beast of chase and  beast of warrain see the register fol Edward h b Hollinsheads chronicle fol b  and he conceive that sir Francis Barrington be such a vendee of wood that be  within the statute though that be be vendee of inheritance and have a great  estate than only vice but for that that he conceive that it be not within the  statute for other reason before cite he will not dispute it but he conceive if  this have be the question of the case that this be within the statute and also  he conceive that this Brownlow goldsborough er p be a general statute of which  the judge shall take notice without plead of this and his reason be for that  that the king be party to it and that which concern the king be the bead  concern all the body and commonwealth Brownlow goldsborough and so it be  adjudge in the chancery in the case of sergeant heal that the statute by which  the prince be create prince of Wales be a general statute and for that see  Lord Barkleys case in the commentary also he conceive that the say statute of  of Edward be repeal by h for this be in the negative that none shall cut any  wood but only in such manner as be prescribe by the say statute and for that  shall be a repeal of the first and that by the first branch of the say statute  it appear that if such give of wood in his own soil within any forest he cut  to his own use he can enclose and by that branch commoner be not exclude but  by the second branch it be provide that he may enclose the four part of his  wood and cut that in such manner as be appoint by the say statute and then he  shall lose his own common in the three other part and so he conclude that  judgement ought to be give for the plaintiff which be the commoner and  judgement be enter accord pasch James in the common bench