Reports of that grave and learned judge, Sir John Bridgman, knight, serjeant at law, sometime chief justice of Chester to which are added two exact tables, the one of the cases, and the other of the principal matters therein contained.

The King against Sir John Byron Knight.

IN a Quo Warranto, for that the Defendant for a year past, hath used and yet doth use without any Warrant, within the Mannor of Cols∣wick in the County of Nottingham, within the bounds of the Kings Fo∣rest of Sherwood, and within the reguards of the said Forest; to have a Park within the said Mannor, with a Pale, Hedge, and Ditch inclosed, being two hundred acres of Pasture, and a hundred acres of Wood with∣in the said Park, Et ad venandum, capiendum, occidendum & apportan∣dum in the said Park, and two hundred acres of Pasture, and a hundred acres of Wood omnes & omnimodas damas Domini Regis Forrestae suae praedict. in parcum praedict. & praedict. 200. acr. pasturae & 100. acr. Bo∣sci aliquo tempore venand. & occidend. Ita quod Forrestini Domini Re∣gis forestae pra••dict. nec aliquae aliae personae quaecun{que} intromittantur ad venandum & fugandum intra parcum praedictum & 200. acr. pasturae & 100. acr. Bosci sine licentia defendentis.

The Defendant pleaded that John Biron Knight, the Defendants Grandfather was seised in Fee of a Messuage of a hundred acres of land, two hundred acres of Meadow, three hundred acres of pasture, and a hundred acres of wood in Colwick, in the County aforesaid, now and time out of mind called the Mannor of Colwick, within the meets and bounds of the For••st aforesaid. And that the said John Byron the Grand∣father, and all those whos•• Estate the said John Byron hath in the afore∣said house, and a hundred acres of land, two hundred of Meadow, and three hundred of Pasture, and a hundred of Wood in Colwick aforesaid, have had, held, and have accustomed to have in the aforesaid two hun∣dred acres of pasture, and a hundred of wood, parcel of the aforesaid Te∣nements called the Mannor of Colwick, belonging to the said Mannor of Colwick, enclosing, ditching, and hedging at their will and pleasure, with all liberties, priviledges, and Franchises to the said Park belon∣ging, and in the said Park from the time aforesaid have used to have and to keep Deer, and from time to time to constitute and appoint a Keeper of the said Deer in the said Park, who from the aforesaid time have used to keep the same, ac ad venandum, fugandum, occidendum, capi∣endum & asportandum omnes & omnimodas damas in eodem parco de tempore in tempus existentes ita quod nullus forestarius Domini Regis, Forestae praedictae nec aliquae aliae personae quaecun{que} intromittantur ad ve∣nandum & fugandum in parco praedicto sine licentia praedicti Johannis avi. And set forth that the said John the Grandfather died seised, whereby the said Mannor, &c. descended to Sir John Byron his Son. And that Hil∣lary 3. Jacobi, a Fine was levied between Sir Peter Leigh and other Plaintiffs, and Sir John Byron the son Defendant of the said Tene∣ments, to the use of the said Sir John for life, the remainder to the De∣fendant in tail.

And that the seventeenth of December, 10. Jac. did let the Premisses to the Defendant for eighty years, if the Lessee should so long live, wherby the Defendant the 26. Mar, 11. Jac, was and is thereof possessed, & did aver that the Mannor of Colwick in the information, and the said Messuage, a hundred acres of Land, two hundred of Meadow, three hun∣dred of Pasture, and a hundred of Wood to be the same, and did also aver the life of the Lessor.

The Attorney Generall for the King did reply, that before the infor∣mation sc. 9 Octobr. 19. Jacobi, and long before, and continuing after untill the exhibiting of this information, the Defendant, the Park and Tenements aforesaid, with Ditches, Hedges, and Fences had so sleight∣ly inclosed, that the Kings Deer of the aforesaid Forest for defect of sufficient inclosing of the Park and Tenements aforesaid, through the default of the Defendant did enter, and the Deer of the King into the said Park and Tenements aforesaid, for the cause aforesaid, entring, the Defendant did very unjustly kill the said Deer in the said Park and Tenements aforesaid.

The Defendant did maintain his Bar, and traversed without that, that the Defendant the Park and Tenements aforesaid with such sleight Fences, Hedges, and Ditches inclosed did keep the same, Quod Damae Regis de forresta praedicta de tempore in tempus intra tempus praedictum in parcum & tenementa praedicta pro defectu sufficientis inclu∣surae parci & tenementorum praedictorum in defectu defen. intraverunt, absque hoc quod Defendens Damas Regis de forresta praedicta in parco & tenementis praedictis pro defectu sufficientis inclusurae parci & tene∣mentorum

praedictorum, in defectu defendentis minus, juste interfecit modo & forma, prout, &c.

Whereupon the Attorney demurred.

And I conceive that Iudgment ought to be given for the King. First, Because the plea in Bar and the Rejoynder made by the Defendant is altogether insufficient for divers causes. Secondly, As to matter in Law.

And as to the first, The Quo Warranto doth suppose that the Defen∣dant did use the liberties there mentioned within the Mannor of Col∣wick, being within the meets and bounds of the Forest of Sherwood, and within the Reguards of the said Forest, and the Defendant did know this to be within the meets and bounds of the said Forest, but does not answer whether it be within the Reguards or not, for it may be within the meets and bounds of the said Forest, and yet not within the Re∣guards: as if the Mannor were disforested by Carta forestae, because it was a Subjects Mannor and not the Kings, yet it remains within the meets and bounds of the said Forest, but not within the Reguards, for now by the disforesting it is made purlue, and not subject to the Re∣guards and Lawes of the Forest, as to the Owner of the Mannor. Vide Carta Foresta fol. 1. and yet notwithstanding this Statute, if the King had granted this Mannor to be free of the Reguards, or out of the Re∣guards, yet is it still within the meets and bounds of the said Forest.

Secondly, The Dendant makes Title to the liberties whereof Sir John Byron his Grandfather was seised in Fee, viz. of a Messuage, a hundred acres of land, two hundred of Meadow, three hundred of Pasture, and a hundred of Wood in Colwick, now and time out of mind called the Mannor of Colwick, Quodque ille & omnes illi Quorum statum idem Jo∣hannes habuit in tenementis praedictis, habuerunt, tenuerunt, & habere con∣sueverunt in praedictis 200. acris pasturae & 100. acris bosci parcellis prae∣dictorum tenementorum, vocat. mannerium de Colwick, praedictum par∣cum, tenementa praedicta, vocat. mannerium de Colwcik, spectant. & pertinent. &c.

So that the Defendant doth not prescribe, but doth alledge only that Sir John Byron, and those whose estate he hath, have used to have a Park, the which is no Title to the Park, for that ought to be time out of mind.

Thirdly, The Defendant doth claim to have a Park in the aforesaid two hundred acres of pasture, and a hundred acres of wood, whereas there is no speaking of two hundred acres of pasture before, and there∣fore he ought to have said, in two hundred acres of pasture parcell of the said three hundred acres.

Fourthly, The Defendant doth not answer to the killing of the Kings Deer of the Forest, but doth only justifie the killing of all Deer time out of mind being in the said Park.

Fifthly, The Rejoynder is a manifest departure from the Bar, for in the Bar he claimeth to have a Park ditched and hedged, Per volunta∣tem eorum inclusum, so that by this pretence he may keep the Park with such low Hedges as he will, and yet in his Rejoynder he doth tra∣verse, absque hoc, that he kept the Park adeo parvis sepibus & Fossatis, quod Damae Regis de foresta praedicta in parcum praedictum pro defectu inclusurae intraverunt, & absque hoc, &c. So that the Defendant by his Rejoynder doth make an Issue upon that which he doth justifie in his Bar, and doth, upon the matter, deny in his Rejoynder, the matter al∣ledged by him in his Bar.

And, as to the matter in Law, I conceive that the Defendant cannot prescribe to have a Park in such manner as he pretendeth, for that such prescription is quite contrary to the nature of his Royall Franchise of his Forest, and is to the destruction of it, for a Forest is a Royall Fran∣chise, so that regularly none can have it but the King, as it was ad∣judged in this Court in a Quo Warranto against Humphrey Bigges. And Manwood fol. 1. A Forest is a certain Territory of Ground pri∣viledged for wild Beasts and Fowles of the Forest to rest and abide in the safe protection of the King, for his Princely delight and pleasure, and doth consist of four things. 1. Vert. 2. Venison. 3. Particular Laws and Priviledges, 4. Certain Officers.

But by this pretence of the Defendant, the Forest of the King is priviledged for wild Beasts to rest in protection of the King, but they are subject to being destroyed by the Defendant; for by such pretence none can enter there but he or his Keepers. And I conceive that no body can pretend to have any profit or pleasure in the Forest, which tends to the destruction of the Forest, and that is the reason that one cannot pre∣scribe to have Common in a Forest, for Sheep, Geese, Goats, or Hoggs, for to suffer them to Common there, is Ad magnum nocumen∣tum ferarum forestae: and such a prescription the Defendant maketh, which is not only Ad magnum nocumentum, but to the utter destruction of the Forest: And if it be objected, that this Park claimed by the De∣fendant is but a little part of the Forest, this is no answer; for as in the Case of a Common, no man may prescribe to have Sheep, &c. in the Forest, so cannot he in any part of the Forest, and if the Defendant may prescribe to have such an irregular Park in part of the Forest, so may others claim such like prescriptions in other parts of the Forest, and so the King shall lose all the Franchise of his Forest, and the De∣fendant may make his Fence or Ditch so low without-side, and so high within, that the Kings Deer cannot get out again when they are come in, and so this Park shall be in the nature of a Trap to catch the Kings Deer.

And further, he that will prescribe to have any common profit or pleasure in the Freehold or Inheritance of another, ought to make his prescription in such manner, so that he must leave the residue of the pro∣fits to the Owner, and cannot utterly exclude the Owner, and there∣fore if one doth prescribe to have all the Herbage, Pannage, and Pro∣fits of the Land of I. S. no man can conceive that this prescription is good. Neither can a Commoner prescribe that the Lord of the Soile cannot put in any Cattell into the Land. But in our case the very Fran∣chise of the Kings Forest doth consist of Vert, Venison, Lands, and Of∣ficers of the Forest, for the King may have a Forest, although he hath no Land there.

And in the Commentaries 332. If a Mannor within the Forest of Waltham do escheat to the King, and the King grants the Mannor to one in fee, yet shall not he have the liberty of the Forest. And the same Law is where the King grants all the Land which he hath in the Forest.

But notwithstanding I agree that one may have a Park within a Fo∣rest by prescription or by grant, but then the same ought to be kept so in∣closed, that the Beasts of the Forest cannot enter into the Park, which if not done, it is a forfeiture of the liberty of the Park, and so it is if he have a Salterie, or Deer-leap, for the nature of a Park is to be inclosed: and in the 10. H. 7. 6. it is said, that a Park consists of Soile, Inclo∣sure, and Game, and in the 15. Ed. 3.

closure and game. And in the 15 Edw. the 3. Thomas Earl of Lan∣caster, Lord of a Forest, did grant leave to one John Harrington to make a Park within the said Forest, and there it is adjudged, that if the Grantee does so sleightly inclose the Park, so that the Forest-beasts may get in there, that it is a forfeiture, and the Lord of the Forest may enter and take the Deer.

But by the pretence of the Defendant, the King shall not have so much power in this Land, being in the midst of the Forest, as he hath in the Lands of any of his Subjects which do lie without the Forest: for if Forest Beasts stray or wander into the Land of a Subject, out of the Forest, the Foresters may enter into this Land, and rechase them into the Forest again.