Richard Broke v. Thomas Cootys of Latton, Essex, miller & Christofer Cootys of London, haberdasher : Michaelmas term, 1539

This action of trespass for breach of close involves a use on the plaintiff’s side. It illustrates well the effect of the right of increase (the jus accrescendi) on joint tenants and the way in which by will a beneficiary of a use could provide by will for his wife. It indicates likewise that feoffees to uses who held to the use of a woman for life would, when she married, hold to the use of the new husband and his wife in right of the wife (despite some perplexing alternations about whose proper right it was). Finally, the case illustrates the expected action of the Statute of Uses on such a life estate. Nothing seems to join the plaintiff’s title with the defendant’s. But both Richard Broke and Thomas Cootys had a wife named Margaret. Even though Margaret was a frequent name, it is at least conceivable that underlying this dispute was a dispute about one woman named Margaret and who was married to her, although that possibility is completely speculative.

[IMG 1013] Hertfordshire. Thomas Cotys lately of Latton in the county of Essex, miller, and Christofer Cootys late of London, haberdasher were attached to answer Richard Broke concerning a plea why with force and arms they broke the close of the same Richard at Standon and Puckeridge and depastured, trampled, and consumed his grass recently growing there to the value of 4 marks with certain beasts, and overturned his property there with certain plows, whereby the same Richard lost the profit of his abovesaid property for a great time and inflicted other enormities on hi to the grave damage of the same Richard and against the peace of the now lord king etc. And wherefore the same Richard by John Byll his attorney complains that the abovesaid Thomas and Christofer on August 10 in the 29^th year of the reign of the now lord king [August 10, 1537] with force and arms broke the closes of the same Richard at Standon and Puckeridge and depastured, trampled, and consumed his grass lately growing there to the value etc., with certain beasts, viz., horses, oxen, cows, pigs, and sheep, and overturned his property, viz., 5 acres of his land there, with certain plows, whereby the same Richard lost the profit of his abovesaid property for a great time, viz., from the abovesaid August 10 until the day of the purchase of the original writ of the same Richard, scilt., April 3 in the 30^th year of the reign of the said lord king [April 3, 1539], continuing the abovesaid trespass as to the depasturing, trampling, and consumption of the abovesaid grass for the same time at divers days and times, and other enormities etc., to the grave damage etc., and against the peace etc., wherefore he says that he is worse off and has damages to the value etc., and against the peace etc., wherefore he says that he is worse off and has damages to the value of 10 marks, and thereof produces suit etc.

         And the abovesaid Thomas and Christofer by John Ayer their attorney come and deny force and injury when, etc., and as to coming with force and arms say that they in nothing are guilty thereof, and of this they put themselves on the countryside. And the abovesaid Richard similarly. And as to the rest of the abovesaid trespass above supposed to have been done, the same Thomas and Christofer say that the abovesaid Richard ought not have his abovesaid action against them, because they say that the abovesaid closes as well as the places in which it is supposed the abovesaid trespasses were done are and at the time at which it is supposed the abovesaid trespass was done were 1 piece of land containing in length 24 feet and in width 22 feet, that was lately Phillip Asteley’s and 1 parcel of land called Donehowse Acre containing in itself 1 acre of land whereof one head thereof abuts on the garden called Dyffys Garden against the east and the other head thereof abuts on the gravel pit, and another piece of land by the Burn, whereof one head thereof abuts on the road leading for Puckeridge to Standon against the east and the head thereof abuts on the land of Robert Fitzherbert and Richard Ase against the south, and one croft called Little Newcroft containing in itself by estimation 2 acres of land with appurtenances in Standon and Puckeridge abovesaid; which certain tenements with appurtenances are and from the abovesaid time at which etc., were the property and free tenement of the abovesaid Thomas Cotys and Margaret his wife in right of the same Margaret, whereby the same Thomas in his own right and the abovesaid Christofer as servant of the same Thomas and the abovesaid Margaret his wife and by the order of the abovesaid Thomas at the same time at which etc., broke the closes abovesaid as the closes and property and free tenement of the same Thomas and Margaret in his own right etc., in the abovesaid tenements with appurtenances and depastured, trampled, and consumed the abovesaid grass then growing as the grass of the same Thomas on the same tenements as on his property and the free tenement of the same Thomas in the proper right of the abovesaid Margaret with the beasts abovesaid, and overturned the abovesaid property as the property and free tenement of the same Thomas Cotys and Margaret in his own right etc., in the abovesaid 5 acres of land with the abovesaid plows as well he might, and this they are ready to verify, wherefore they seek judgment if the abovesaid Richard Broke ought to have his abovesaid action against them etc.

         And the abovesaid Richard Broke says that he by anything alleged before ought not to be precluded from having his abovesaid action, because he says that before the abovesaid Thomas in right of the abovesaid Margaret had anything in the abovesaid tenements with appurtenances and before the abovesaid time of the abovesaid trespass done, a certain Richard Grene and John Broke were seised of the abovesaid tenements with appurtenances in their demesne as of fee and thus seised thereof of the same tenements with appurtenances before the abovesaid time at which etc., they enfeoffed the certain Thomas Master of Puckeridge, Thomas Ree, Thomas Lorkyn, Thomas Kent, and William Ree to have to them and their heirs in perpetuity to the use of the same Thomas Master and his heirs in perpetuity; by virtue of which feoffment the same Thomas Master, Thomas Ree, Thomas Lorkyn, Thomas Kent, and William were seised of the abovesaid tenements with appurtenances in their demesne as of fee to the same use; and the same Thomas Master, Thomas Ree, Thomas Lorkyn, Thomas Kent, and William being seised of the same tenements with appurtenances to the same use in the abovesaid form, the same Thomas Master afterwards and before the abovesaid time at which etc., scilt., on September 17 in the year of the lord 1530 at Puckeridge abovesaid [IMG 1014] established his testament and last will and by the same among things he willed that the same Thomas Ree, Thomas Lorkyn, Thomas Kent, and William and their heirs be seised of the abovesaid tenements with appurtenances among things to the use of a certain Margaret then the wife of the same Thomas Master for term of the life of the same Margaret; and there afterwards and before the abovesaid time at which etc., he died; after whose death the abovesaid Thomas Ree, Thomas Lorkyn, Thomas Kent, and William were seised of the same tenements with appurtenances in their demesne as of fee to the use of the abovesaid Margaret Master for term of her life; and the same Thomas Ree, Thomas Lorkyn, Thomas Kent, and William being seised of the same tenements with appurtenances to the use of the same Margaret Master in the abovesaid form, afterwards and before the abovesaid time at which etc., the abovesaid Margaret Master took as husband the same Richard Broke, whereby the same Thomas Ree, Thomas Lorkyn, Thomas Kent, and William were seised of the same tenements with appurtenances in their demesne as of fee to the use of the same Richard Broke and Margaret for term of the life of the same Margaret; and the same Thomas Ree, Thomas Lorkyn, Thomas Kent, and William being seised of the abovesaid tenements with appurtenances to the same use in the abovesaid form, the same Thomas Ree, Thomas Lorkyn, and Thomas Kent afterwards and before the abovesaid time at which etc., died and the abovesaid William survived them and held himself in on the abovesaid tenements with appurtenances and was thereof alone seised in his demesne as of fee to the use of the same Richard Broke and Margaret for term of the life of the same Margaret by the right of increase etc.; and the same William being seised of the same tenements with appurtenances to the use of the same Richard Broke and Margaret in the abovesaid form, by a certain act promulgated in the Parliament of the now lord king held at London beginning on November 3 in the 21^st year of his reign and then to and toward Westminster adjourned and prorogued and there by divers prorogations continued and prorogued to and until February 4 in the 27^th year of the reign of said lord king and there on the same February 4 then among other things it was enacted by the lord king from the assent of the lords spiritual and temporal and the community then being in the same Parliament as well as by the authority of the same Parliament among things that when any person or any persons at the time of the making of the same act made in the abovesaid 27^th year stand or stands seised or after the making of that act will be seised of any honors, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments to the use or confidence of any other person or any other persons or of any body politic by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will, or otherwise in any manner whatsoever, that in each this manner case every person and persons and body politic that at the said time of the making of the abovesaid act have or had or after the making of the same act will have any this manner use or confidence in fee simple, fee tail, for term of life or of years or otherwise or any use or any confidence in remainder or reverter thence into the future will stand and be seised and adjudicated in lawful seisin, estate, and possession of and in the same honors, castles, manors, lands, tenements, rents, services, reversions, remainders, and hereditaments with their appurtenances to all intentions and constructions in law of and in suchlike estates as they before the abovesaid act promulgated had or after the making of that act would have in use of or in the same, and that the estate, title, right, and possession that were in this manner person or persons that before that time was or were or after the making of that act would be seised of any lands, tenements, or hereditaments to the use or confidence of any this manner person or persons or of any body politic from the time of the making of the abovesaid act promulgated will be adjudicated clearly in him or them who at the same time of the making of the abovesaid act had or after the making of that act would have such use and confidence according to this manner quality, manner, form, and condition as they before had in or at use or confidence that were in them, as in the same act promulgated in the said 27^th year more fully appears; by pretext of which certain act the abovesaid Richard Broke and Margaret were seised of the abovesaid tenements with appurtenances in their demesne as of free tenement in right of the same Margaret until the abovesaid Thomas Cootys and Christofer on the abovesaid August 10 in the 29^th year abovesaid [August 10, 1537] with force and arms broke the closes of the same Richard Broke at Standon and Puckeridge and depastured, trampled, and consumed his grass there recently growing to the value etc., with the abovesaid beasts and overturned his property there with the abovesaid plows, whereby the same Richard lost the profit of his abovesaid property for the whole abovesaid time against the peace of the now lord king as he above complains against them, without this that the abovesaid tenements with appurtenances are or at the abovesaid time at which etc., were the property and free tenement of the abovesaid Thomas Cootys and Margaret his wife in the right of the same Margaret as the abovesaid Thomas Cootys and Christofer above alleged; and further the same Richard Broke says that the abovesaid Margaret his wife is still alive and in full life, viz., at Puckeridge abovesaid, and this he is ready to verify, wherefore, because the abovesaid Thomas Cootys and Christofer acknowledge above that abovesaid trespass done in the abovesaid tenements with appurtenances, the same Richard Broke seeks judgment and his damages by occasion of that trespass be adjudicated to him etc.

         And the abovesaid Thomas Cootys and Christofer further say that the abovesaid tenements with appurtenances are and at the abovesaid time at which etc., were the property and free tenement of the abovesaid Thomas Cootys and Margaret his wife in the right of the same Margaret as they above alleged, and of this they put themselves on the countryside. And the abovesaid Richard Broke similarly. Therefore it is ordered to the sheriff that he should make to come here on the morrow of All Souls 12 etc., by whom etc., and who neither etc., to recognize etc., because both etc. At which day here came the parties etc., and the sheriff did not send the writ. Therefore as before it is ordered to the sheriff that he should make to come here on the Octaves of St. Hilary 12 etc., to recognize in the abovesaid form etc. At which day the jury between the parties abovesaid in the abovesaid plea was put in respite thereof between them here until this day, scilt., in 15 days from Easter then next following unless the justices of the lord king assigned to take the assizes in the abovesaid county by form of the statute etc. on Thursday in the first week of Lent next following before that time should come at Hertford in the abovesaid county. And now here at this day came the abovesaid Richard Broke by his abovesaid attorney and the aforementioned justices at the assizes before whom etc., sent here their record in these words:

[IMG 1624] Afterwards on the day and place withincontained before John Baker the lord king’s attorney general and Anthony Broun associated this time to the same John Spelman knight justice of the lord king assigned to take assizes in the county of Hertford by form of the statute, the presence of John Spelman not awaited, by virtue of the lord king’s writ of si non omnes came both the withincontained Richard Broke and the withinwritten Thomas Cootys and Christofer Cootys by their withincontained attorneys and the jurors of the jury whereof mention is made within exacted similarly come, who chosen, tried, and sworn to tell the truth concerning the withincontained, say on their oath that the withinwritten tenements with appurtenances are not nor at the time of the withinspecified trespass done were the property and free tenement of the withinwritten Thomas Cootys and Margaret his wife in the right of the same Margaret as the abovesaid Thomas Cootys and Christofer within alleged; and they assess the damages of the same Richard Broke by occasion of the trespass withinwritten beyond his outlays and costs put out by him on his suit in this part at 3s4d; and for those outlays and costs at 40s. Therefore it is considered that the abovesaid Richard Broke recover against the aforementioned Thomas Cootys and Christofer his abovesaid damages at 43s4d assessed by the abovesaid jurors in the abovesaid form as well as 20s adjudicated by the court as increment to the same Richard at his request for his outlays and costs abovesaid, which certain damages in all attain to 63s4d; and let the abovesaid Thomas Cottys and Christofer be taken etc.