The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CCLXXXV. Willoughby's Case. Trin. 30 Eliz. In the Kings Bench.

* 1.1WIlliam Willoughby, and two other were Endicted, That where the Parson of the Church of D. and all his prede∣cessors have used to have Common in such a place; The said Defendants, Willoughby and others, had enclosed the same, and that enclosure was upon their own Land.

It was moved, That upon this matter they ought not to have been endicted; but the party grieved was put to his Action; As, where a presentment is made of a Disseisin. See 27 Ass. 20. And it was the Case of one Marden, 29 Eliz. upon the stopping of a High-Way upon his own Land; and if it were upon other Land, it were not material; for it is but an Impeachment to take Com∣mon, which cannot be Vi et armis, &c. Also this Endictment is Recorded and Certified as found before Iustices of Assize and Gaol-Delivery, and they cannot take such presentment. And although the Iustices of Assize and Gaol-Delivery were in rei ve∣ritate also Iustices of Peace; yet the Endictment being recorded and certified to be taken before them in quality of Iustices of Peace, shall not help it; for the Court shall not respect any Autho∣rity but that which appears upon the Record. And for these Cau∣ses, the parties were discharged.

Notes

• * 1.1

  2 Len. 117.