coke b the bishop OF Salisbury case Trin James in a writ of second deliverance  the defendant avow and plead a grant by I bishop of S to g and himself for  their life of the office of surveyor of his manor with a rentcharge of noble  issue out of c with clause of distress which grant be confirm by the dean and  chapter and that the office be a ancient office use to be grant c to such  person or person as the bishop shall please the plaintiff plead in bar the  stat Elizabeth and that the say office c use not to be grant but for the life  of one and therefore the grant of the say I late bishop of S be void and  conclude with hoc a preparation be verify upon demurrer to the plea the  plaintiff have judgement and resolve it appear sufficient in the plea in bar  that I be not now bishop of S the averment in the avowry that the office be a  ancient office be too general and uncertain the grant of the say office for  two life be void against the successor by the Act Elizabeth at commonlaw  bishop with the consent of the chapter may by their charter of feoff I rant or  lease bind their successor the stat if have enlarge the power of the bishop  for by this Act he may make a lease for twentyone year or three life and the  bishop alone may so lease by deed indent follow the limitation of the statute  a grant by the bishop contrary to Elizabeth shall bind himself though not his  successor the grant with the ancient fee of a ancient and necessary office be  exempt out of the general restraint of Elizabeth but where such office have be  grant to one a grant to two be not out of the general restraint the grant of  any ancient office to one with the ancient fee by a bishop shall not bind the  successor unless confirm by the dean and chapter for such grant remain at the  commonlaw the grant of the say office by I to two be void upon the death or  removal of the say I in a writ of second deliverance bring by Simon Stanton  and Henry knap against John green of the take of sheep at Blewbury at a place  call the parsonage slay in the county of Dorset the defendant say that the  place where c contain sixty acre and avow the take because John bishop of  Salisbury be seize of the manor of Sherborne in the county of Dorset whereof  the place where c be parcel in his demesne as of fee in the right of his  bishopric and be so seize ult septemb year Elizabeth by his deed show forth  grant to Edward green and the say John green et the dawn utrique duty  supervisoris all manerior of oneself c in come will Dorset Berks Southampt et  alibi infra kingdom England by they and their deputy for who they will answer  to have and to bold to they c for term of their life and further by the same  deed grant to they a rend of twenty noble per and issue out of the say manor  of Sherborne with diet and reasonable expense for they and their deputy to  ride et alias to take into possession arbitration a hob Jones Doct placit coke  report a er p the same Episcopi et success of oneself or listener the dawn  with clause of distress si debt is owed modus to strive for and that the say  grant be confirm by the dean and chapter September Elizabeth in the life of  the say John bishop of Salisbury whoever it be prd duty be antiquity duty  whoever it be dict duty needle predict fee S d c coke a concession fuer per  prd johan Episcop Sarum et prodecessores swine tali persone well mask who  Himself to please and show the death of Edward green and that he demand the  rend and for want of payment distrain c in a bar of which avowry the plaintiff  plead the statute of Elizabeth by which it be enact that all gift grant feoff  fine or other conveyance or estate from the first day of this present  parliament to be bad make do or suffer by any archbishop or bishop of any  honour castle manor land tenement or other hereditament parcel of the  possession of his archbishopric or bishopric or unite appertain or belong to  any of the say archbishoprics or bishopric to any person or person c ut in to  cause to stand and further plead quod nec duty prd nec one year old To give  back prd ante permission prd c unquan concess fuer per the same Episcop well  once prdecessorum of oneself pro to some place longiore tem poor how One vit  per quod permission prd per prd johan recently bishop Sarum vigor right of way  for cattle prd vacuan to be c upon which bar to the avowry the avowant  demurrer in law and diverse day it be argue by the sergeant at the bar and now  this term it be argue by the judge at the bench and diverse exception be take  by the avowants counsel to the bar plead to the avowry that the avowant in his  avowry have allege by matter in fact that the say office have be grant to such  person or person as the bishop please c and the plaintiff in his bar have  plead in the negative that the say office c have not be grant but for the life  of one c and therefore he ought to have conclude et hoc petit quod to seek  after per native land but he have conclude all his plea et hoc a preparation  be verify c et non allocatur for the avowant have not allege that the say  office have be grant c to diverse person but to such person or person as the  bishop please and in b disjunctivis be sufficient one be yes a another  exception be take to the bar to the avowry that it do not appear by the bar to  the avowry that John bishop of Salisbury the grantor be dead and it shall be  intend that he be alive because the plea of every one shall be take strong  against he a varying state an answer contrapreferentem be to take without  effort and then if he be alive the grant of the say office to two be good  although it never have be grant to two before and shall bind the bishop  himself for his time as it have be adjudge in Elizabeth in this court betwixt  b sale plaintiff and the bishop of Coventry and Litchfield defendant in a  quare hinder and pasch Elizabeth betwixt c hunt and Singleton which case you  may see cite in coke b Lincoln college case in the three part of my report fol  which case be affirm for good law by the court say non allocatur exception  because it appear to the court that the say John be not now bishop of  Salisbury for the plaintiff in his bar to the avowry conclude per quod the say  grant per prd johan recently bishop Sarum vigor right of way for cattle prd to  be void which the avowant by his demurrer have confess and these word per  proud johan d recently bishop Sarum imply and import that he be not now bishop  of Salisbury vide the like implication Elizabeth dyer e f Elizabeth die b so  in e b a palm b   light a hawk Max a a wrong conclusion can be take advantage  of by special demurrer only since stat Ann c as to when a plea ought to  conclude to the country and when with a averment Vid serjeant wms note l  Hayman v Gerrard sand Com dig pleader e e a   light b hawk Max b   b Cr  Elizabeth Leon say Owen ander c   a   light a b cro Elizabeth keb Mod Rep  carter vent roll Rep d Doct pl postea a roll Rep cro car e die pl bull palmer  Cr James more Cr ear dyer pl coke report a er p g if in trespass the defendant  plead in bar that b lease to he the land in which c at will by force of which  he enter and be and yet be thereof possess by force of the lease at will it  imply that the lessee be alive for if he be dead the lease be determine and  then he can not be possess by force thereof another exception be take to the  avowry know that the allege of it to be h antiquity duty be too general and  uncertain but he ought to have prescribe in it or show more certainty than now  he have do and that be hold a good exception and this difference be take  betwixt the allegation of the conveyance to the matter and the matter itself b  as in I h a b there one to g Doct Plac palmer h hob Cr car I   b roll Rep Inst  Fitzherbert avowry Br distress Br and estate   light a cart b in possessory  action there be a great difference in the manner of plead in a declaration and  in a plea in the former it be unnecessary to allege in the declaration the  precise estate which the plaintiff be seize of or to lie any title by grant or  prescription to that which the plaintiff be disturb in or hinder from enjoy  but it be sufficient to declare on his possession Willamore v Bamforde Bulst  Norris v baker roll Rep S C Bulstr thus in a action on the case for stop a  certain river by which the plaintiff land be drown it be sufficient to say  whereas he be possess c Weshborn and mordants case Leon Leon so in a action  for divert a ancient watercourse it be not necessary to show a title by  prescription or otherwise to the watercourse it be sufficient to say that the  watercourse be accustom and of right ought to flow c anon cro car sand v  Trefuses cro car so also in a action on the case a declaration which aver that  the defendant break down a ancient dam by which he do divert the watercourse  ab antiquity et custom lesson towards the plaintiff mill be hold good on  demurrer Nulmes v Hoblethwaite lev SC Mod shower so also in a action by a  commoner for the disturbance of his common it be not necessary for the  plaintiff to state any title to the common by prescription or otherwise but it  be sufficient mere to state that he be possess of certain land c z and by  reason thereof have a right of common c Atkinson v Teasdale will bean v bloom  will c black so also in a action for stop plaintiff light it be sufficient to  say that the plaintiff be possess of a house in which be ancient light and  that the defendant stop they crowther v Oldfield l raym so in a action for not  grind at the plaintiff mill it be sufficient to say that during the time c he  have and ought to have the toll and that the inhabitant ought to grind without  set forth any title to the toll or any custom or prescription for the  inhabitant to bring their corn to be ground there chapman v Flexman vent and  Vid drake v Wiglesworth will so in case for a disturbance of a toll in a  market a declaration that allege a demise of the toll c without show the title  of the lessor be hold good escot v Lanreny Owen and in case for disturbance of  a toll in a fair the declaration need not show a title to the fair by grant or  prescription dent v Oliver cro James so in a action by the owner of a ancient  ferry against a person who erect a new ferry near his it be sufficient for the  plaintiff to declare on his possession and he need not set forth in his  declaration that he keep boat and ferryman sufficient to carry passenger over  blisset v heart Willis so also in a declaration for disturb a right of way it  be sufficient to say that he be possess of a wood and that he have a way lead  from such a place to the say wood and that the defendant have obstruct he  saint John v hoody vent and in all action on the case upon a custom for not  grind at plaintiff mill the plaintiff may declare general upon a custom for a  certain toll without specify the particular toll or the consideration for it  or that it be a reasonable toll guard v callard m S so in case for disturbance  of a pew it be sufficient for the plaintiff to say that he be possess of a  message and that the say pew be appurtenant to it c Ashley v Fuckleton lev nor  need the declaration show as against a wrong doer any title or con coke report  b er p convey to he title to a leet prescribe that he and all those who estate  he have in the hundred have have a leet c et bene for the prescription in the  hundred be but the conveyance and therewith agree a r action sur Le case but  when be claim any thing which lie in grant by prescription original and of  itself he can prescribe in it by a and estate as b Littleton hold fol h a c so  when one will plead custom in a town it be sufficient to say that it be  ancient villan and show the custom vide h prescription e dyer so of a office  if he claim any thing appertain to the office it be sufficient to say quod to  be sideration for such possession as by say that plaintiff repair the pew  Kenrick v tailor I will Vid Corvens case Rep fol so in a action for disturb a  prescriptive right of sepulture in the chancel of the church as against a  wrong doer it be not necessary to set forth the whole right particular wear v  Grijiths burr a distinction be former take between a action against a mere  wrong doer and a action against a person in who soil the plaintiff claim a  easement that in the latter case it be necessary to show a title in the  declaration though not in the former but this distinction no long prevail and  the general form of declare it be allow in both case thus in a action on the  case for not repair fence a declaration that all the possessor of the  defendant close have use to make the fence between the defendant close and a  certain river and that the defendant do not repair the hedge c whereby the  plaintiff cattle escape c on motion in arrest of judgement two judge against  one hold the declaration sufficient Holbeach v Warner cro James so also in  action for disturb the plaintiff of a right of way over defendant land no  title to the way by prescription or otherwise need be show Winford v Wollaston  lev rider v smith TR so also in a action for not repair a party wall belong to  the defendant it be sufficient for the plaintiff to declare that he be possess  of a message and that the defendant ought to repair the say wall tenant v  Goldwin Mod S C 1Salk Vid the queen v Bucknall l raym sergeant wms dote  Coryton v Lithebye sand a if the plaintiff instead of declare general set out  a title and do it insufficient the declaration will be bad Dorn v Gashford  common Rep S C salk crowther v Oldfield l raym and it be incumbent upon the  plaintiff to prove at the trial a good and sufficient title by grant or  prescription c or he will be nonsuit Cort v Berbeck Doug but in a plea if the  matter of defence arise from title in the defendant whether it be title by  descent by prescription or custom or otherwise the title must be set out in  the plea Norris v baker roll Rep William v Bamorde Bulst crowther v Oldfield l  raym tenant v Goldwin Mod pearl v bridge sand a Grimstead v Marlowe TR rider v  smith TR but where the defendant right be matter of inducement or conveyance  mere it be sufficient to state the title general as where the justification to  a action of trespass be a escape of the cattle from a common to the close in  which c through defect of a fence which the plaintiff be bind to repair faldo  v ridge Yelv so in trespass for a assault if the defendant plead that he be  possess of a house for year and the plaintiff disturb he without show by what  title he be possess it be sufficient Shevil v averie cro car so also in  trespass in a justification for take cattle damagefeasant it be sufficient for  the defendant to say that he be possess of a term of year c Searl v bunion Mod  Langford v Webber Mod anon salk but in replevin the defendant must in his  avowry allege either the take in his freehold or if he have only a particular  estate for year he must derive his title from the tenant in fee Scilly v dally  salk Hawkins v Eccles Bos pull serjeant wms n pool v Longueville sand in a  avowry however for take cattle where the question be who ought to keep the  enclosure the avowant may plead general that he be seize without show of what  estate sir Francis leek case dyer a a carter   light a b light sect carter  coke report a er p antiquity duty but when he claim the office itself it be  not sufficient to say quod be antiquity duty c as to the matter in law it be  object that the say grant make by the say late bishop of Salisbury be confirm  by the dean and chapter be not restrain by the say Act of Elizabeth for  diverse reason that this case be out of the word of the Act for it be not any  part of the possession of the say bishopric nor appertain thereunto they  conceive that nothing be restrain but such hereditament whereof on a lease  make for three life or twentyone coke a year accord to the statute a rend may  be reserve for the word of the Act be other than for the term of twentyone  year or three life c whereupon the old accustom yearly rend or more shall be  reserve c and in this case no rend c can be reserve a difference be take  betwixt a office in be in the right of his bishopric for that may be say  parcel of his possession and such a office as the bishop himself can exercise  can be say parcel of his possession if a grant for two life with the ancient  fee shall by construction of the statute be restrain then by consequence a  grant for one life only shall be also restrain for by what word or  construction shall a grant for two life of the say office with the ancient fee  be restrain and not for one life but it be unanimous resolve per totan curian  that the say grant of the say office for two life be void against the  successor by the say Act of Elizabeth and in the argument of this case four  thing be consider what the commonlaw be before any statute make thereof what  alteration the statute of d h cap have make what be do by the Act of Elizabeth  and last if the say grant to two of the say office be restrain by the say Act  of Elizabeth against the successor and as to the first it be resolve that at  the commonlaw bishop with the consent of the chapter may by their charter of  feoff grant or lease bind their successor and therefore such grant to two of  the say office for their life have be good by the commonlaw although it be  never grant to two before wherein be observe the wisdom of the sage of the law  that no sole corporation be ever trust with the disposal of the possession as  to bind his successor but in such they ought to have the consent of other as  the bishop of his dean and chapter the abbot the consent of his convent the  parson the consent of the patron and ordinary et such de cteris as to the the  statute of h have enlarge the power of the bishop for by this Act he may make  a lease for twentyone year or three life with diverse limitation that every  old lease be expire or surrender within a year c that the land ought to be  usual demise to farm by the space of twenty year c and that the bishop alone  may do by deed indent follow the limitation of the statute without the dean  and chapter as to the d and that point it be resolve that by the Act of I a  Elizabeth the bishop be general restrain from make any estate or interest of  any land tenement or hereditament parcel of coke b their bishopric or of any  charge or encumbrance out of it or of any other thing in their disposal to  bind the successor but only a lease for c so if a man prescribe in modus kill  in a park he may say quod be antiquity sparing Cowper v Andrews hob so also if  he allege a usage to put swine into a park as incident to the office of parker  semble wither v Iseham dyer but if a thing be not direct mention as that to  which c it need not be allege that it be antiquity as if a man prescribe in  modus kill in so many acre in such a park it be not necessary to say quod be  antiquity sparing Shelton v Montague hob Vid Com dig pleader e c cro light a d    b   b a a a   a   b   a a   b   light a a Plowd b raze lease dyer pl pl pl  pl pl pl pl a   light Bridgm coke report a er p twentyone year or three life  of such land tenement and hereditament which have be usual demise and upon  which the usual rend shall be reserve accord to the say Act of Elizabeth and  if they make a lease of any land usual demise and reserve the usual rend  accord to the statute of Elizabeth yet if all the limitation prescribe by the  statute of h be not pursue as if it be not all in possession or that the old  lease be not expire or surrender within a year which be not prohibit by the  statute of Elizabeth as it be adjudge in fox case then such lease shall not  bind the successor unless it be confirm by the dean and chapter for the  statute of Elizabeth do not enable any archbishop or bishop only to make any  lease and such construction have be make as be aforesaid to disable the bishop  to do any thing except to make lease for twentyone year or three life as be  aforesaid concern the bishopric to bind his successor as the grant of the new  avoidance by the bishop of a benefice to another although it be confirm by the  dean and chapter be restrain by the statute of Elizabeth to bind his successor  as it have oftentimes be adjudge because it be such a hereditament upon which  a rend can be reserve for all that which be not permit by the exception know  other than c be restrain as to the successor by the general purview of the Act  but such grant shall bind the bishop himself notwithstanding the statute say  it shall be void to all intent construction and purpose d for the maker of the  Act intend not only the advancement of religion when the professor of divinity  shall have twofold honor know honor reverent and honor beneficence but also  the increase of good hospitality and avoid the dilapidation and the ruin of  the church which the successor if the act of his predecessor shall bind he  will not be able to rebuild or repair and therefore the maker of the Act  regard the succession more than the bishop himself vide elmer case in the five  part of my report foe a and jewel case ibidem foe a the case of ecclesiastical  person ib f a b Eitrues case and diverse other case upon the stat of Elizabeth  cap concern dean and chapter c which statute be cousingerman to this Act of  Elizabeth and these word in the say Act of parcel of the possession of his  archbishopric or bishopric or unite belong or appertain to the say  archbishopric or bishopric and it may be well and proper say that the gift and  disposal of this office and all coke a other the like be belong to the  archbishopric or bishopric for although the bishop himself can exercise such a  office yet he have a inheritance in the gift and disposal thereof as it be  hold in Roger earl of Rutland case in the eight part of my report f b and  these word b belong to the archbishopric or bishopric shall be take for  concern the archbishopric or bishopric and therefore if a writ of c annuity be  bring against a bishop upon the title of prescription or otherwise and  judgement be give against he upon verdict or confession it be restrain by this  Act because the bishop be charge with the annuity in respect of his bishopric  and therefore the successor shall be charge with the arrearage incur in the  life of the predecessor as it be agree in d h a b e to know facias e a b h h  and yet the annuity be not issue out of the more bridge more and pl d so if a  sole corporation make a lease not warrant by the statute Elizabeth cap it  shall bind he though it shall be void against his successor but if a  corporation aggregate make a lease not warrant by Elizabeth such lease be void  against themselves lyn v win Bridgm carter and Claycotes case Leon morris v  Antrobus hard and where there be a chapter without a dean and such chapter  make a lease not warrant by the stat Elizabeth such lease be void ab beginning  for it must be so or be good for ever chapter of the collegiate church of  Southwell v the bishop of Lincoln Mod Vid Bacon ab lease h and Magdalen  college case   b a   b   light b Tridgm h b Br Prrog Br grant h b Fitzherbert  grant Plowd a b b Bridgm lev c   b Cr car Bridgm   b roll Rep hob d Bridgm  coke report b er p bishopric as appear in e h b f e a but because it concern  the bishopric and tend to the g diminution of the revenue and the impoverish  of successor it be restrain by the statute of Elizabeth then to answer the  objection which have be make why shall a grant of the say office to one only  be good as to that it be answer and resolve by the court that if h the office  have be ancient and necessary the grant thereof with the ancient fee be not  any diminution of the revenue nor impoverish of the successor and therefore  for necessity such grant be by construction exempt out of the general  restraint of this Act of e for as Bracton say foe a a mock quod alias to be  for sale non be need compose to be for sale b need to lead in privilegi quod  jure to bereave and if bishop shall not have power to grant such office of  service or necessity c for the life of the grantee but that their estate shall  depend upon uncertainty as upon the death translation c of the bishop then the  most able person will not serve they in such office or at least will not  discharge their office with any d alacrity unless they have such certainty of  a estate for the term of their life as their predecessor in the same office  have but when the e ancient office have be grant to one it be not of necessity  to grant it to two and therefore such grant be not exempt out of the general  restraint no more than if the bishop grant a office with the ancient fee f to  one and afterward grant it g in reversion to another that be restrain by coke  b the statute because it be not of necessity and if the bishop may grant such  office to h two he may grant they without any limitation of life and by  consequence in infinitum and so if he may grant to one in I reversion he may  grant to other without any limitation and by the same reason he may grant in  tail or in fee which will be entire against the intention of the say Act of  and of such opinion be Popham chief justice mich Elizabeth in king Scamblers  case vide Elizabeth dyer l horn bishop of Winchester after the statute  Elizabeth grant to doctor dale for life a rend out of the manor of Waltham pro  council c the bishop die doctor dale because the rend be void by the death of  the grantor bring a action of debt for the arrearage incur in his life against  his executor in which two point be to be observe that the grant be not void  against the bishop m himself the other that although the rend be issue out of  the possession and not parcel it be void by his death Trin Elizabeth rot in  this court the e Bridgm f Davis b Br to know facias Br annuity Fitzherbert  Annu g lie Bridgm Cr car   light a h Cr car Bridgm   light a e the rule  applicable to the grant of these office be that a office and fee which exist  before the Elizabeth be not within the statute but may be grant since precise  in the same manner in which it be grant before and the utility or necessity of  such a office be no more material since the Elizabeth than it be before  Trelawny v bishop of Winchester burr and Vid burn ecclesiastical law cruise  dig title office auditor curl case   b a Bridgm b Bacon element   b c bridge d  bridge e Cr car Bridgm Jones f Cr car Bridgm Jones g dyer b pl pl   a march  Rep Cr car   b roll   light b hob Inst h bridge I Bridgm king Cr Elizabeth Cr  car   light b roll roll Bridgm lie l Cr car Bridgman die pl m   light a Cr  Elizabeth Ant a a b keb Mod Rep cart vent roll Rep coke report a er p bishop  of Chester after the statute of grant to George n Bolton a annuity of five  mark per annum for his life pro council expense et impendend which be confirm  by the dean and chapter and afterward the bishop die Bolton bring a writ of  annuity against the successor and in his declaration aver that the predecessor  of the bishop have grant reasonable fee oh but do not aver that this fee have  be grant before and aver that he be a human being consiliariusetin lege die  and the opinion of the court be against the plaintiff and therefore he never  have judgement but there it be resolve that although the say bishopric be p  find of late time know in the time of h yet a grant of office of necessity to  one in possession with a reasonable fee Q the reasonableness of which shall be  decide by the court of justice in which it shall depend be good and as have be  say exempt out of the general restraint of the say Act and the court take no  regard to that that it do not appear when Edward green one of the grantee die  for admit he die in the life of the say bishop so that now against the  successor one only have the office yet the grant by force of the say Act de  primo be void as to the successor because queen coke a evil a begin are  beginning vix be ut good to thrust through exit et b quod beginning non valet  dragging or pulling along time non to recover and the statute de primo Regin  Elizabeth have at the time of the grant adjudge it void as to the successor  which no subsequent accident can make good no more than if a bishop make a  lease for four life and one die in his lifetime so that now there be but three  life and afterward he die yet it shall not bind the successor although all  other circumstance require by the statute of h be observe it be resolve that  the grant of any ancient office to one with the ancient fee by a bishop shall  not bind his successor unless it be confirm by the dean and chapter for such  grant be not as appear before restrain by the statute de primo Elizabeth and  therefore remain at the commonlaw and by consequence ought to be confirm by  the dean and chapter also no regard be have by the court that it do not appear  that John the bishop be dead for c recently bishop may imply a translation or  other removal as well as death but it be all one for be he translate depose or  otherwise remove the grant be void against the successor last although it do  not appear that there be any successor at the time of the distress for  situation there be no successor then make yet that be not material for the  grant determine by the death or removal of the say John the bishop and  afterward this term judgement be give for the plaintiff Simon Stanton and  Henry knap and against the say John green who claim the say office note reader  the subject of this case be small but the consequence great and where by force  of a exception in the statute de primo Regin Elizabeth any archbishop or  bishop may with the consent of the dean and chapter convey any of their  possession to the king his heir and successor of any estate whatsoever our d  lord the king that now be of his piety and devotion to religion and for the  honour of it and that such possession which be give by his noble progenitor  king of England shall not be convert to private use have at his first  parliament and by authority thereof restrain they from make any conveyance or  estate either to himself or to any of his heir and successor coke b and so you  will understand what act a archbishop or bishop may do concern his possession  without the assent of the dean and chapter and what he may do with the dean  and chapter and what he may not do although they be with the assent of the  dean and chapter n Cr car Bridgman lie hard oh bridge p Bridgm   light a Q  Bridgm   light b b Cr car roll roll roll Rep Cr Elizabeth more   b   a    Brownl a   b   a Jones bull b   b a Cawley   b Davis a c roll Rep Ant b Cr car  Doct it is pleasing d James c   light a coke report a er p