Jurisdictions, Part 40 – Part 44
For that the not ſcowring of Ditches adjoyning to High waies and Bridges, and alſo other annoyances in waies are preſentable in Leets, and is another branch of the Charge, let us ſee how they ſhall be done and what by the Common Law and what now by the Statutes.
Waies.
IF a man have Land adjoyning to the Kings High way he is charged of common right to cleanſe the Ditches without any preſcription, 8 H. 7: fol. 6.but if he be not next adjoyning, it is otherwiſe, for there he is not chargable without preſcription, but it is ſaid, that he whoſe land is next adjoyning to a Bridge, Purpreſtures.is not held of common right to repaire the Bridge, though the Bridge have been there time out of minde, unleſſe he have that made by preſcription.
Magna Charta, Raſtall. Bankes 2. Bridges. Raſtall. Bridges 1.chap. 15. No Town nor Free-man ſhall be diſtreined to make Bridges unleſſe that of old they uſe to make them in the time of King H. our Grand-Father, the Statute of 22 H. 8. chap. 5. Gives power to the Juſtices of Aſſiſe to determine the making of Bridges, where it cannot be held and proved what perſon certaine ought of right to make ſuch decaied Bridges, and what ſhall be made by the Inhabitants, or riding where ſuch decayed Bridges are, by which it appeares, that he which hath Land adjoyning to a Bridge, is not chargeable to make the Bridge unleſſe it be by preſcription.2 Ed. 4. fol. 9.
By Moyle if any incroachings be made over the Kings Way as by a Ditch, Houſe, or Wall, it ſhall be puniſhed by preſentment in the Leet, and I collect upon the opinion of this book, and upon 8. Ed. 4. fol. 9. And upon 27. H. 6. fol. 9. and upon 6. Ed. 3. way 2. Where a Lord of a Mannor hath Land upon both parts of a High way, that he ſhall have the Trees growing in the High way, and alſo where a way is over a waſte of the Lords, Way.but where a Free-holder hath Land of each part of the High way, he ſhall have no Trees growing in the Highway, and where he hath Land joyning but upon one part of the way he ſhall have no Trees growing upon that halfe of the way, 2. Ed. 4. fol. 9. But Britton fol. 111. Saith, that a Frec-holder ſhall have Trees if it be not in the common High way.
He which doth not ſcowre his Ditches adjoyning to a Highway, Raſ. High waies 6.ought to forfeit for every rod not made 12 pence every time 18. Eliz. chap 10. and before that by the common Law he which had Land adjoyning to the High way, ought to ſcowre his Ditches adjoyning to the High way.
It is provided that the Hedges, Fences and Ditches next to either part of the High waies or common travelling Waies, ſhall be from time to time ſcowred and repaired, Waies.and that all Buſhes and Trees in them growing ſhall be cut by the owners, and by, 8 Eliz. chap 10. for not doing of that, forfeit ten ſhillings, and theſe points of the ſaid two Statutes are inquirable in a Leet, 5 Eliz. c. 13. Commiſſion may be awarded for not repairing Bridges, Fitzh 113. a. and 127. d.
By Shelley, If one do not clenſe his Ditch but ſuffer that to drownd the high way he ſhall be amerced, 12. H. 8. fol. 19.
And note that injuries made in the High way are preſentable in Leet, as it follows, but not injuries in private waies, but the party greived ſhall have an Aſſiſe of Nuſance or an action upon the caſe, if he have no free-hold, and yet it is uſed to inquire if one ſtop private way, but it is to no purpoſe, if it be not for evidence in an Aſſiſe of Nuſance as an inqueſt of Office, but it ſeemeth to be good between Copyholders, which cannot have an Aſſiſe of Nuſance; nor an action upon the caſe for ſtopping a way and the paine upon that is good to be aſſeſſed.
By Fairefax, A Leet hath power to inquire of common annoyances, but not of particuler, as if one ſtop my private way, or breake my Cloſe, that is not inquirable, A. 3. fol. 1.
If a High way be not repaired, ſo that I be damnified by miring my Horſe, I ſhall not have an Action for that, but a preſentment ſhall be of that in a Leet, ſee 27. H. 8. fol. 27. and 5. Ed. 4. fol. 3.
If one ſow my private Way to my Meadow, I ſhall have an Aſſiſe of Nuſance; and it is not preſentable in Leet, and where he ſtreigrens it, action upon the caſe lieth, 33. H. 9. fol. 29. The ſame Law of my way ſtopt to the Church, 6 Ed. 4. fol. 37. If one ſtop the water running to my Mill, I ſhall have an Aſſiſe of Nuſance and it is not preſentable in Leet, 2. H. 4. fol. 12.
The Free-hold of a High way is to the Lord, and paſſage for the People is to the King, and puniſhment for annoying of that may be to the Leet, 6 Ed. 3. way 2. and 2. Ed. 4. fol. 9.
In a High way, the King hath but paſſage for him and his People, but the Free-hold and all the profits are to the Lord of the Soile, as Trees, &c. the King ſhall puniſh annoyance made there, and the Lord ſhall have an action for digging the Land there, 27. H. 6. fol. 9. and 8. Ed. 4. fol. 9.
He which hath Lands adjoyning to the way hath the half of the way, unleſſe it be a common High way, for there it is otherwiſe, for there it is to the Lord, Britton fol. 111.
Kings High way is that which leadeth from Town to Town, and common way is that which leadeth from a Town to the Feild to their Lands, 3. Ed. 3 Statham. Tit. Wayes.
It ſeemeth there are royall VVayes, or High waies, common waies, and private waies, and to ſtop private waies an action lies.
Fitzh 124. If one be diſturbed from his way he ſhall have a Quod permittat, B. to have a certaine way over the Land of the ſaid A. in D. as he ought and was wont.
33. H. 6. fol. 29. It ſeemeth where my way is ſtraitned or impaired I ſhall have an action upon the caſe, but if it be all ſtopt I ſhall have an Aſſiſe of Nuſance, but by Priſot, if the ſtopping of the way be by the Land Tenant, Aſſiſe of Nuſance lieth, But if it be by a ſtranger an action upon the caſe lieth, but of a common annoyance that is made in the Royall way, none ſhall have an action but preſent that in a Leet, or … and ſet a Fine upon him for the King, and by Priſot I ſhall have an Aſſiſe of Nuſance or a Quod permittat, againſt all the Tenants, though but one of them ſtop the way.
5. Ed. 4. fol. 3. If a common way be, and is not repaired by him which ought to do it, ſo that I be in loſſe by that, I ſhall not have an action; but by way of preſentment in Leet, &c. 27 H. 8. fol. 32. ſee there.
Fitzh 184. Aſſiſe of Nuſance, he ſtopped the way or ſtraitned the way in D. to the hurt, &c. it lieth, 48. Ed. 3. fol. 27. Arctavit viam a good forme.
11. H. 4. fol. 81. &c. Where one hath a way over a Bridge to his Mannor, which another ought to repaire, and he ſuffers a decay, ſo that he cannot paſſe, action upon the caſe lieth.
Fitzh 183. Aſſiſe of Nuſance lieth where a man hath made an annoyance to my Free-hold which I have for my life in Taile, or in Fee, and ſo it followeth that a Termer for yeares ſhall not have an Aſſiſe but an action upon the caſe, ſee, 27. H. 3. tit. Aſſiſe 437. If one let Lands for yeares, and after an annoyance is made, the leſſor ſhall have an Aſſiſe and not the Leſſee.
11. H. 4. by Hanke and Culpepper if a man hath a way, unity extincts it, 3. H. 6. fol. 42.
21. Booke of Aſſiſes 1. Where a way is extinct by unity of poſſeſſion in the Father yet it may be afterwards revived by partition with Compoſition, for the Compoſition makes that, and it is called a new way.
5. H. 7. fol. 7. A Way belonging cannot be made in groſſe by grant, for none may have the Commodity of that, but he which hath the Land to which the Way is appendant, the ſame Law of common appendant, but otherwiſe it is common appurtenant.
26 H. 8. fol. 4. Appendant cannot be aliened and ſevered in Drifts and Waies to Cloſures, yet the Free-Holder ſhall have the Trees, but commonly in high way there is ſome waſte in which the Tenants have common of paſture, and the Trees growing there are to the Lord of the Mannor.
17. Ed. 3. fol. 43. Is, that the Free-hold and the Soile of a high ſtreet is in the Lord of the Mannor, and the People have nothing there but the paſſage, and 8 H. 7. fol. 5. by Keble, the Soile and Free-hold in the way is to thoſe which have Land adjoyning.
2. Ed. 4. fol. 9. Where there is a common way throughout a Feild, the Free-hold of the Soile is to the Tenant of the Land adioyning and not to the King, for he hath but paſſage for his People.
Incidents.
A Man cannot diſpence with a Suite to a Leet unleſſe by ſpeciall words, 8. Ed. 2. tit. 28
2. H. 7. fol. 4. Partition is made of foure Mannors which deſcend to foure coparceners, that every one ſhall have a Mannor except the Advowſon, and by that the Advowſon is ingroſſe and ſevered, and if all dy but one, it ſhall be appendant again.
8 H. 7. fol. 1. By grant of a hundred, Leet paſſeth as Incident, for a Hundred cannot be without a Leet, for a Leet is parcell of it, and to a Mannor a Court Baron is Incident and to homage fealty, and to a Faire a Court of Pipouders, and it ſeemeth theſe cannot be ſevered.
Perk. fol. 22. Common appendant cannot be ſevered, nor Eſtovers to be burned in a Houſe, but a Villian regardent may be ſevered, and an Advowſon appendant and made in groſſe, for an Incident inſeperable cannot be ſevered by grant, as in the caſe next before, but Incidents ſeperable may be.
40 Ed. 3. fol. 22. Beaſonable aid, to make his Son Knight or to marry his Daughter and releife, for ſoccage after the death of his Tenant cannot be releaſed by generall words, therefore releaſe of all actions and demands beſides fealty and Rent by the Lord to the Tenant, ſhall not extinct theſe Incidents, the contrary is ſaid, if it be by ſpeciall words.
19. H. 8. tit. Incidents 34. Court-Baron is ſo incident to a Mannor and Court of Pipowders to a Faire, that they cannot be ſevered by grant, for if they grant the Mannor or Fair they cannot reſerve ſuch Courts.
7. Ed. 4. fol. 11. Lord and Tenant, the Lord releaſeth to the Tenant the diſtreſſe, this is void, for the diſtreſſe is Incident, the ſame of releaſe of Fealty to him which holds by Homage, for Fealty is Incident to Homage and is inſeperable.
26. booke of Aſſiſes 66 Lord and Tenant by Fealty, Eſcuage and Rent, and the Lord grants the Rent, this is Rent ſeek and ſevered, for Fealty remaines with the Homage as Incident to it, the ſame Law where a Rent is Incident to a Reverſion, and yet theſe may be ſevered by ſpeciall grant, 29. booke of Aſſiſes 20. the ſame, Littl. fol. 40. Where the Tenant holds by Homage Fealty and Rent, if the Lord grant the Rent, ſaving to him the Homage, this Rent is Rent Seck and ſevered, the ſame Law if he grant the Homage, ſaving the Rent, and where he holds by Rent and Fealty, and grants the Rent ſaving the Fealty, or left for life rendring Rent, and grants the Rent ſaving the Reverſon, the Rent is Seck.
Reſcous and pound breach is another branch of the Charge.
HE which deſtraines Beaſts may put them in a cloſe Houſe if he will give them meate, for the putting into the open pound is that the owner may give them meate, 33. H. 8. tit diſtreſſe 66.
If a man deſtraine without cauſe, the owner may make Reſcous, but if he put them into the pound, he cannot breake it, for they are in cuſtody of the Law, ſee 40. Ed. 3. fol. 33. and Fitzh fol. 102. E.
It ſeemes if a Lord deſtrain where Rent is not behinde, the Tenant ſhall not make Reſcous, 4 Ed. 6. tit. diſtreſs 74.
If a man deſtraine wrongfully, the owner may make Reſcous, 5. Ed. 4. fol. 7. by Danby, 39. Ed. 3. tit 20.
If Beaſts put into the pound dye, it is at the loſſe of the owner, though he have tendred ſufficient mends, for he might have a Replevin, Doctor and Student, fol. 8.113.
I may impound a dead thing where I pleaſe, but if that corrupt by my default I ſhall anſwer for it, 9. Ed. 4. fol. 2.
Fitzh 102. L, If the Lord do deſtraine where is no Rent nor ſervice behinde, the Tenant cannot make Reſcous.
9. Ed. 3. fol. 35. If a man deſtraine wrongfully, the owner of the Beaſts may make Reſcous, but by 4. Ed. 6. it was agreed, if he deſtraine and impound them the owner cannot take them out, for they are in cuſtody of the Law, 5. Ed. 4. fol. by Danby the ſame.
2. H. 4. fol. 18. If a man deſtraine my Beaſts, which eſcape into his Land out of the great waſte, I may reſcue them, but if I keep them, or put them there, or by Hankford, if I have notice, that they uſe to go there, this is no eſcape, and there I ought not to make Reſcous, ſee, 7. H. 7. tit. 1.
2. H. 4. fol. 24. In Reſcous, nothing behinde, and alſo that he was never ſeiſed and are good Pleas, Quere.
5. Ed. 4. fol. 7. Seiſing is not Traverſable in Reſcous by opinion there, 6. Ed. 4. fol. 12. The ſame, 8 H. 4. fol. 1.
21. H. 4. fol 40. By the Court where the Lord comes to deſtraine and ſees the Beaſts, and the Tenant perceiving that, chaſeth the diſtreſſe out of his Fee, the Lord ſhall not have a Writ of Reſcous, for he hath no poſſeſſion of the Beaſts, but he may follow them and deſtraine them, but if they were chaſed out of his Fee before the Lord ſee them, there he cannot deſtraine them, 44. Ed. 3. f. 20. the ſame, Fitzh N. B. 102. G.
33. H. 6. fol. 58, A man attacheth a Horſe in a corporate Town, and there he is reſcued, and chaſed into another County, upon freſh Suite the Officer may take him againe.
6. Ed. 4. fol. 12. By Yelverton, in Reſcous, nothing behinde is no Plea, for if the Lord deſtraine, where no ſervice is behinde, the Tenant is at no miſcheife for the Tenant may have a Replevin, and in this Writ recover his damages.
Fitzh 101. Reſcous lieth where a man deſtraines for Rent or for ſervices or damage doing, and thoſe would impound, and another Reſcues them, and if a Collector or under Collector diſtreine for a fifteenth or a Bailiff or a Sheriff or other Officer diſtraine for the King, and Reſcous is made, they ſhall have a Reſcous and not the King, but if a Bailiff of a Liberty diſtraine for the King and Reſcous is made, the Lord of the Liberty ſhall have Reſcous, and if the Bailiff or Officer of a common perſon diſtraine, Reſcous is made, he which cauſeth the diſtreſſe to be made, ſhall have Reſcous.
39. H. 6. fol. 42. Rediſſeiſin to Coroners, and one alone maketh a precept, Reſcous upon that is Juſtificable.
Aſſaults and Fraies.
For that, that Aſſaults and Fraies are inquirable, let us ſee which are puniſhable in a Leet, and what not.
AS Saults are not inquirable and puniſhable, by preſentment in Leet, but blood-ſhed is, 8. Ed. 4. fol. 5. By Fairefax, Leet hath no power to inquire, but of thoſe which make common annoyance at the common Law; as of Affraies and blood-ſhed, but not if one hath broken my Cloſe, or if one hath beaten me, but if any Affray were, ſo that the Kings People were diſturbed, for that is more then particuler, 1 R. 3, fol. 1.
If one come to make a Boothe, and doth it not, and yet one maketh a Fray upon him, and upon him draw blood with his Sword or Dagger, it is puniſhable by preſentment in Leet, 11 H. 6. fol. 29.
If one aſſault to beat you, and you fly and he incloſe you, or if you be at Hedge or Ditch and then you beat him and wound him, this is not puniſhable in a Leet, 34 H. 6. fol. 8. and 33. H. 6. fol. 20.
If J. S. makes an Aſſault upon a Stranger, and J. D. draws his Sword and beats and wounds J. S. in defence of the Stranger, this is puniſhable by a preſentment in a Leet. But if a Servant beat and wound one which maketh an aſſault upon his Maſter in defence of his Maſter, he is not puniſhable by preſentment in Leet, 12 H. 8. fol. 3. and 9 Ed. 4. fol. 51.
If one lay his hands unlawfully upon any, unleſſe that he arreſt him, or part two that fight, he is a treſpaſſor, but that is not puniſhable by preſentment in Leet, 9 Ed: 4. fo. 3.
If one beat one in defence of his Goods this is not puniſhable in a preſentment in Leet, Booke of Entries fol. 553. and 19. H. 6. fol 21.
Treſpſs of Aſſaults and Fraies.
TReſpaſs by a Chaplain of Grayes Inne, the Defendant pleads of his own Aſſault, and it was held, if he upon whom the Aſſault is made can eſcape with his life, it is not lawfull for him to beate the other which made the Aſſault, but it is held, that I ought not to ſtay, till the other hath given me a blow, for paradventure he commeth too ſhort, 2 H. 4. fol. 9.10. Ed. 4. fol. 7. Treſpaſſe of Graſſetrod, and threatning of life and member, a man cannot juſtifie the menace of death, and for that to that he pleads not guilty, 21 H. 6. tit. 26. the ſame.
33 H. 6. fol. 20. Treſpaſſe of Threatning by Priſot, I cannot threaten one of Life and Member, but if he upon whom the Aſſault is made fly, and the other followeth him ſo neere that he cannot eſcape, or hath him under him upon the Ground, or hath chaſed him to a Wall, Hedge, Water, or Ditch, there it is lawfull for him to ſay, if you will not depart that he to ſave his Life will kill him.
3 H. 4. fol. 8 Treſpaſſe of Aſſault, Impriſonment and Battery, Defendant plead to the Battery not guilty, and to the Aſſault, that the Plantiff came to ſuch a River; where the Defendant had a Mill, and would have ſtopt the River, and the Defendant took him by the Arme, without that, that he made other Aſſault, and to the Impriſonment, the Defendant pleads that the Plantiff Aſſaulted him, and would have beate him, by which he prayed the Conſtable to arreſt him, and he came in aid of him, judgment if action and good.
22 H. 6. fol. 48. Treſpaſſe of a Servant beaten and Entry into his Houſe, yeare 7 H. 6. Defendant ſaith that yeare 8 H. 6. he ſerved a Subpena, upon the Plaintiff, and that the Plaintiff and the Servant took him, and carried him to his Houſe and there deteined him half a day which is the ſame Treſpaſſe, and to any Treſpaſſe before not guilty, to the Battety of his Servant, which was of his Aſſault at another day and to any Aſſault before not guilty. Bracton ſaith, he is not worthy of Peace, which will not keep it, Stamford fol. 30 a.
40 Ed. 3. fol. 40. Treſpaſſe of Aſſault and Battery and found the Aſſault only, and Plaintiff recover, but ſhall not have action of Aſſault only, 42 Ed 3 fol 7 the ſame, and ſee 22 Aſſiſe 60.
9 Ed 4 fol 30 Treſpaſſe of Battery, it was held that if a man will take my goods, I may lay my hands upon him, and rather beate him then ſuffer him to carry them away, 19 H. 6. fol. 33 the ſame, that he may beat one in defence of his Goods.
19 Ed 4 fol 189 Treſpaſſe of Battery, a man may Juſtifie the beating of another in his defence but by Catesby a man cannot beat another in defence of his Son, but a Servant may beat one in defence of his Maſter or Miſtris, 21 H 7 fol 39. the ſame.