This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. Searching, reading, printing, or downloading EEBO-TCP texts is reserved for the authorized users of these project partner institutions. Permission must be granted for subsequent distribution, in print or electronically, of this text, in whole or in part. Please contact project staff at eebotcp-info@umich.edu for further information or permissions.
AN High-way in our Law-Language is called Chimin, being a French word for Way, whereof cometh Chi∣minage or Chimmage, Chiminagium or Chimmagium, which signifies a Toll due by Custom, for having a Way or Passage through a Forest, to the dis∣quiet of the Wild Beasts of the Forest. And no Forester, but such as hold in
Fee-Farm of the King are to take any Chiminage or Chimmage; and such who do hold in Fee-Farm, are to take it only in such places where it hath been accustomed to be paid, viz. Two pence half yearly for a Cart, and for an Horse that beareth Loads every half year an half peny, and this must be but of such that come as Merchants by licence to buy Bushes, Timber, Bark or Coal, and sell the same again at pleasure; but for no other Carriage by Cart shall Chimmage be taken; no•• of those that bear upon their Backs Brushment, Bark or Coal to sell though they get their Livings by it except they take it in the Kings De∣mes•• Woods.
An High-way in Latin is called via a vehendo, from carrying, in respect o•• the Carriages passing to and fro there∣in, and is defined to be transitus a loc•• ad locum, the passage from one plac•• to another. And although it be said in the Terms of the Law, and by Mr. Blount, that there are but two kinds of Ways, yet my Lord Cook and others tell us that there are three kinds of Ways; As first a Foot-way, calle•• Iter, Quod est jus eundi, vel ambuland hominis, where a Man hath right to go
and come, and was the first or prime Way; The second kind is both a Foot-way and a Horse-way, which is called Actus ab agendo, and vulgarly is called Pack and Prime-way, because it is both a Foot-way which was the first or prime-way, and a Pack or Drift∣way also, sometimes called a Bridle∣way; and then the third kind is Via or Aditus, which contains both the other two, and also a Cart-way or Carriage-way, for this is jus eundi, ve∣hendi, & vehiculum & jumentum du∣cendi; A publick way for Cart and Carriage, and driving Cattel, &c. and this Way is two-fold, viz. Regia Via, the Kings High-way free for all Men, and Communis Strata, belong∣ing to a City or Town, or between Neighbours and Neighbours.
And Minshaw also out of Ʋlpian makes three kinds of Ways, Publicam, Privatam, & Vicinalem, a Publick-way, a Private-way and a way of Vi∣cinage or Neighbour-hood, via pub∣lica, quam Latini Regiam appellant, a Publick-way is that called the Kings High-way, via vicinalis, quae in vicis est, vel quae in vicos ducit, these Ways of Vicinage, are Ways between Street and Street, Neighbour and Neigh∣bour,
House and House in Cities and Towns, via privata est quam agra∣riam dicunt; A private way is reckon∣ed to be a Field-way, and these ways are of two sorts, vel ea quae ad agros ducit, per quam omnibus commeare li∣cet, either that way which leads into the Fields lawful for all Men to pass and repass, go and come in, vel ea quae est in Agris, cui imposita est ser∣vitus, it a ut ad Agrum alterius ducat, or such a Way as is set out in the Fields to lead to another Mans ground.
And these private ways also which one or more Men have, either by Pre∣scription or Charter, through another Mans Grounds, are likewise divided into a way in gross and a way appendant. Chimin in gross is that way which a Man holds principally and solely in ••••••¦self; as if a Man hires a Close or Pa¦sture, and hath a Covenant for ingre•••• and regress to and from the said Clo•••• through the Ground of some other Man, through which otherwise 〈◊〉〈◊〉 might not pass; this is a way in gross▪ Or a way in gross may be that which the Civilians call personal; as whe•• one Covenants for a way through th•• Ground of another Man for him and his Heirs. And Chimin appendant, 〈◊〉〈◊〉
way appendant, is that way which a Man hath adjoyned to some other things as appertaining and belonging thereunto, and may be that way which the Civilians call Real; as where a Man purchaseth a way through the Ground of another Man for such as do or shall dwell in this or that House, or that are the Owners of such a Mannor for ever, &c. And this is a way appen∣dant to the said House or Mannor.
And it was said by Fairfax (a Ju∣stice of the Kings Bench) that if a Man have Chimin appendant, a way appendant to his Mannor or House, that this way cannot be made in gross by Grant, because none can have the be∣nefit of such way, but he that hath the Mannor or House to which the way is appendant; but via Regia the Kings High-way may be made in gross, be∣cause the Country may have the benefit of it, notwithstanding that they have not the Land.
If there be a Common High-way for all the Kings Subjects, which lies in an open Field uninclosed, and it hath been used time out of Memory, that when the said way hath been foun∣drous and bad, that then the People have used to go by Outlets upon the
Lands adjoyning: in this Case these Outlets are parcel of the way, for the Kings Subjects ought to have a good Passage, and the good Passage is the Way, and not only the beaten Track; for if the Lands adjoyning were sown with Corn, the Kings Subjects (the way being foundrous) may go over the Corn.
Where a Common High-way hath time without memory been used to be repaired by the Country. If afterwards J. S. who hath Land not inclosed next adjoyning to the said High-way on both sides thereof, and he for his own advantage doth inclose his Land on both sides of the way, with an Hedge and Ditch, he by this hath taken upon him to repair the said way for the fu∣ture, and hath freed the Country from the Reparation thereof; so that at all times afterwards when need requires he must repair it, and it is not suffi∣cient for him to make it as good as it was at the time of the Inclosure, but he ought to make it a perfect good way, without having any respect to the way, as it was at the time of the Inclosure; for when the way laid in the open Fields not inclosed, the Kings Subjects used when the way was bad
and foundrous, to go for their better passage upon the Fields adjoyning to the way, out of the common Track of the way, which liberty is taken away by the Inclosure.
And in Sir Nicholas Staughtons Case, it was said by the Chief Justice, and not denied, That if one inclose Land but on one side of the High-way which was anciently inclosed on the other side, he which makes such new Inclosure, must repair the whole way; but if there were no ancient Inclosure on the other side, he shall repair but half of the High-way. And by the same reason there, if there be a com∣mon High-way inclosed, and one Man hath the Land adjoyning on one side of the way, and another Man hath the Land adjoyning on the other side of the way, and each of them incloseth his own Land adjoyning to the said way, then in such Case they are to re∣pair the way between them.
There were three parcels of Land, and the necessary private way was out of the first parcel to the second, and out of the first and second parcels to the third parcel, and J. S. purchaseth all the three parcels, and afterwards Aliens the two first parcels to J. N.
And whether this unity of possession in J. S. did not extinguish the way, came in question; and it was said that if it were a way of necessity, and no other way to the third parcel, which J. S. still kept, that then the way doth still remain, for it is not only a private Inconvenience to J. S. but also a prejudice to the Common Wealth, for Land to lie fresh and unoccu∣pied: And so it was adjudged by the Court.
If T. have an ancient way over the Close of H. and H. sowes the Close and Way, and leaves a Way in ano∣ther part of the Close, yet T. may ju∣stifie to go where the ancient Way is, and is not bound to go in the un∣plow'd Way.
And so an ancient common High∣way, which hath been time out of memory, cannot be inclosed or stop∣ped, and another way laid out with∣out a Writ of Ad quod dampnum first sued out, to enquire whether or no it be to the damage of the Kings Liege Subjects, and to whom, &c. and an Inquisition returned that it is not to the damage of any of the Kings Liege Subjects, for without this or the Kings Licence, though the new way be as
beneficial and commodious for the People as the old way, yet the Party may be presented and indicted that turns such an old way, and any that is so minded may abate the Nusance and break it down, and go the old way; And in this Case without a Writ of Ad quod dampnum the Party may stop the new way again at his pleasure, and by this laying out a new way, the Sub∣jects have not such Interest therein so as they may justifie their going there, nor is it any such way that the Inhabi∣tants are bound to watch there, nor are they liable to repair and maintain it.
The Owner of Land who is not the Occupier is not chargeable to the Re∣pairs of Common High-ways, but only the Occupier, so that the charge is to be upon the Tenant and not upon the Land-lord, unless it be covenanted be∣tween them to the contrary. And this was so agreed by the Court of Kings Bench upon a motion to have a Prohi∣bition to the Marches of Wales upon an Information there preferred in such a Case against the Owner.
It is provided by the Statute of Marl∣bridge that no distress shall be taken in the Kings High-way, nor in the Com∣mon
Street; but by the Common Law one might have taken a Distress in the Kings High-way, till it was prohibited by this Statute, and this is intended only of Distresses for Rents and Ser∣vices, and not for those things where∣of no Distress can be, but in the High∣way, as for Toll, &c. And in Case 〈◊〉〈◊〉 Distress be taken for Rents and Ser∣vices in the High-way, yet the Party distrained cannot plead it in Bar, bu•• must bring his Action upon the Sta∣tute.
And if the Lord comes to distrain▪ and seeth the Cattel upon his Tenancy▪ and the Tenant or any other on pur∣pose to prevent the Distress, drives the Cattel out of the Ground into other Lands not holden of the Lord, or in∣to the High-way, in this Case he may freshly follow and distrain them there and is not punishable by this Statute▪ but in both these Cases the Lord when he comes to distrain must have the view of the Cattel within his Fee, for i•• they be driven out before he have th•• view of them, or that the Cattel afte•• the view go out of themselves, or a•••• chased and driven out for some other cause and not to prevent the Distress then the Lord may not distrain them
i•• another Mans Land, or in the High∣way for Rents and Services.
The Country by the Statute of ••inchester are to take care so to secure their High-ways, that people may Travel with safety; for if one be rob∣••ed, the Hundred where he is robbed, ••s to make satisfaction, and if it be done in the Division of two Hundreds both Hundreds shall be answerable, but ••hen the Party robbed as soon as he can is to give notice of the said Rob∣bery, to some of the Inhabitants of ••ome Town, Village or Hamlet next adjoyning to the place where the Rob∣bery was committed, and must also within twenty days before he bring his Action make Oath before some Justice of the Peace of the County where the Robbery was committed, living in or near the same Hundred, whether he knew the Party that robbed him, or any of them, and if he do, then before he commence his Action he must enter into sufficient Bond by Recognizance before the said Justice, effectually to prosecute the same Person or Persons so known, by Indictment, or otherwise according to Law; and the Party rob∣bed is to commence his Action with∣in a year after the Robbery committed
or else the Hundred shall not be char∣ged therewith, nor shall they be char∣ged, if the Robbers or any of them b•• taken, but then such taking and appre∣hending of the Robbers or any of them must be before the Verdict or Judg∣ment against the Hundred.
Robbery by some is said to be from Roberia or Robaria, from the French Robbe, id est, vestis a Robe; and i•• when there is a felonious taking away of a Mans Goods from his person o•• presence against his will▪ putting him in fear, and of purpose to steal the same: and it is called Robbery because the Goods are taken as it were de la Robe, from the Robe, that is, from the Person; and although the thing taken be but to the value of a Peny, yet it is Felony, for which the Offender shall suffer death.
Note, If a Man be robb'd in an House, the Country is not chargeable nor liable to answer such Robbery, for it ought to be committed openly that the Country may take notice of it; nor is the Country liable to answer for a Robbery committed in the Night, but tho' the Robbery be before Sun-rise or after Sun-set, yet if it be day-light the Hundred shall be charged.
And where a Robbery is begun in one Hundred and committed in ano∣ther, yet it is a Robbery in the first Hundred where it was begun; as if a Carriers Horse and Pack be taken by Robbers in one Hundred, and led into another Hundred and there his Pack is ••obb'd, this is a Robbery in the first Hundred where the Horse was taken; but if the Carrier lead the Horse him∣self, then it is a Robbery in the second Hundred, because the Carrier was al∣ways in possession till then; and if Robbers take a Man in one Hundred and carry him into another Hundred and there rob him, this hath been held to be no Robbery in the first Hundred, but in the second, because the Party is always in possession till then. And if Robbers drive or force a Waggoner to drive his Waggon out of the way in the day-time, but rob him not till night, yet this is a Robbery in the day, for the first seisure is the Robbery.
If a Servant be robb'd of his Masters Mony, or a Carrier be robb'd of ano∣ther Mans Goods, he that is robb'd must make Oath, and not the Master or Owner; and the Action may be brought either in the Master or Ser∣vants Name, and so either in the
Owner of the Goods or Carri•••• Name.
If a Servant be robb'd of his M••∣sters Goods in the presence or sight his Master, this shall be taken for robbing of the Master; and so if Man be riding Post, and the Post-bo•••• hath his Portmantle behind him, whi•••• is robb'd, and the Posters Mony take out of it in his presence, this shall b•• taken for a robbing of the Party th•• rides Post, and not of the Post-bo•••• for these Robberies being committe•• in the Owners presence are said to b•• done to their Persons; and if one 〈◊〉〈◊〉 away his Purse or Goods to save the•• from a Robbery, and the Robber tak•• them up and carry them away, th•• is a Robbery done to the Owners Per∣son.
If two High-way Men meet tw•• Persons travelling in the High-way, an•• they endeavour to rob the Travello•••• and draw their Swords and offer t•• wound them, upon which the Tra∣vellors ride one of them one way and the other another way, and one of the Robbers follows one of them, and his Companion the other, and in this pursuit one of the Travellors is robbed by one of the High-way Men, out of
〈◊〉〈◊〉 sight and hearing of his Compa∣••ion, yet in this Case they are both of ••••em principal Robbers, he that nei∣ther heard nor saw the Robbery, as well as he that committed it. And so it ••as adjudged in the Case of one Pud∣••ey, who was arraigned in the Kings ••ench as a Principal, and was found ••uilty and hanged, though the Rob∣••ery was done by his Companion out of his sight and hearing.
Formerly if a Man were travelling ••pon a Sunday, and were robbed ••hough it were in time of Divine Ser∣••ice, upon the Sunday in the Fore∣••oon, yet the Country were liable, and were bound to answer for the Robbery, 〈◊〉〈◊〉 it was adjudged in one Waits Case; ••ut now by the Statute of the 29th of King Char. II. they shall not make sa∣••isfaction for any Robbery committed ••pon Persons travelling upon Sunday, ••ut it is at the peril and loss of the Parties travelling, if they be robb'd ••pon a Sunday.
Now having opened the Ways, and ••leared the Passage, I shall proceed to ••ntroduce the Officers.
Co. Lit. f. 56. 2. Terms of the Law, and Blounts Lavv Dictionary, verb Chimin and Chiminage, Crom. Jurisd. f. 189.
9 H. 3. Charta Fo∣rest•• cap. 1.4. Fo∣rest 14. Rest.
Statutes at large printed 1587. f. 5. Wingates Forests, Chases, &c. §. 14. Keb. Stat. printed 1684. f. 7. Raft. Forest 14.
Co. Lit. 56. Dalt. J. P. printed 1677. chap. 50. f. 98. vid. Fleta lib. 4. cap. 1. Bract. lib. 4. f. 232. & Kitchin Court Leet, &c. printed 1585. p. 49. b.
Dalt. J. P. printed 1677. chap. 50. f. 98.
Terms of the Law, and Blounts ••aw Dictionary 〈◊〉〈◊〉 Chimin.
5 H. 7. f 7. b pl. 15. Kitchin Court Leet, &c. printed 1585. p. 50. b. Bro. Chimin. 14.
Tr. 10 Car. 1. ••. R. per Curiam upon a Tryal at Bar up∣on an Informati∣on against Sir Ed∣ward Duncombe, Cro. Car. f. 366. pl. 3. Rolls Cases 1 part, f. 390.
A. 10. 15. Dalt. J. P. printed 167•• ch. 50. f. 98. Bon•• Guide for J. P p. 110.
Cro. Car. ubi supra Rolls Cases, 1 par. 8. 390. B. 30. 35. 40. 45. Dalt. J. P. ubi supra. Com∣pleat Justice prin∣ted 1681. p. 160.
Tr. 22 Car. 2. B. R. Siderf. Rep. 1 p. f. 464. pl. 8.
M. 1658. B. 8. in Parker and Wel∣steads Case, Sider∣••ins Rep. 2 p. f. 39. & 111, 112. vide Tr. 5 Jac. 1. B. R. Clark and Cogg•• Case, Cro. ••ac. f 170. pl. 10.
Horn and Taylors Case, Noys Rep. ••. 128. Sheppards Actions upon the Case, ch. 5. sect. 4. cap. 8.
Vide Mi••h. 8. Car. 1. B. R. The King against Ward and Lyme, Cro. Car. f. 266, 267. pl. 16.
Jones Rep. f. 222.
Hill. 2. Car. 1. B. R. Rolls 1 pars. ca. f. 390. B. 50.
Marlbr. chap. 15. F. N. B. 90. A. Reg. f. 97. b. 183. b. Co. 2 Inst 131. Stat. at large printed 1684. f. 14. Ke••.
Statutes printed 1684. f. 17.
Except the King and his Officers having special au∣thority, Wingates Distresses sect. 11. 17 E. 3. 43. Rolls ca 1. pars f. 671.
Vide Mich 41 El. B. R. in Smith and Shepheards Case, Cro. El. f. 710. pl. 34. 17 E. 3. 1. 43 E. 3. 40.
Co. Rep. 8. lib. f. 60. b. 11 R 2. A∣vowry 87. Co. 2. Inst. f. 131.
Co. Rep. 9. lib. f. 22 a. 44 E. 3. 20. b. 6 R. 2. Res••ous, 11 H. 7. f. 4. a. pl. 11. 21 H. 7. f. 40. a. pl. 59. Terms of the Law verb. Di∣stress, Co. Lit. f. 161. a. Co. 2. Inst. f. 131. 2. R. 2. A∣vowry 182.
13 E. 1. Stat. 2. ch. 2. 28 E. 3. ch. 11. 27 El. ch. 13. Co. Rep. 7. f. lib. f. 7. a. Wingate Abridg. Stat. ••it. Robbe∣ries sect. 5. Stat∣at large printed 1684. f. 52.
Dalt. J. P. printed 1677. ch. 84. f. 215 Bonds Guide for J. P. p 199. Wing-Robberies sect. 17. Statutes at large printed 1587. f. 710. Keb. Stat. printed 1684. f. 885. sect. 11.
A Justice of the Peace in any of the three Ridings in York-shire, is within the mean∣ing of this Sta∣ture, which names only a Justice of the County, and so it was resol∣ved, Hill. 1657. B. S. in Halls Case, ••iderf. Rep. 1 p. last printed f. 44, 45.
Hill. 14 Jae. 1. Norris Case, Hob. Rep. f. 139, 140. Keb. f. 885. sect. 9.
Mich. 12 Car. 2. B R▪ in Baskervils Case, Siderf. Rep. 1 pars f. 11.
Co. Lit. fol. 288. Terms of the Law and Blounts Law Dictionary verb. Robbery. 22 Als. pl. 55. Kitchin Court Leet, &c. printed 1585. p. 36. b. Crom. 33. b. n••. 1 Lamberts Eirenarcha ch. 7. lib. 2. Stam. 17. Bond ubi supra, ••. 198.
Tr. 27 El. C. B. in Sendhills Case, Co. Rep. 7. lib. f. 6. a. Co. 2 Inst. f. 169. Cro El. f. 753. pl. 13. Mo. Rep. f. 62. pl. 848. Cro. Jac. f. 467. Tr. 29 El. C. B. in Milburns Case, Co. Rep. 7. lib. f. 6. b. Savils Rep. f. 83. pl. 163. Tr. 28 Eliz. C. B. Ashpoles Case, Co. Rep. 7. lib. f. 6. b. Mith. 13 Jac. B. R. M••yes Case, Cro. Jac. f. 106. pl. 45.
Goldsb. Rep. p. 8••. pl. 11.
Tr. 17 Car. 2 B R. so held, Siderfin•• Rep. 1 p. f. 263.
Tr. 31 Eliz. C. B. Greens Case, Cro. Eliz. f. 142. pl. 8. Goldsb. Rep. p. 24. pl. 3. Latch. Rep. f. 127. Tr. 2 Car. 1. C. B. Rey∣monds Case, Cro. Car. f. 37. pl. 2. Sidersins Rep. 1 p. but last printed f. 45. if the Servant or Carrier will not swear, the Ma∣ster or Owner is without remedy, Dalt. J. P. f. 215▪
Vide Mich. 1649. B. S. Wrights Case Styles Rep. f. 156. ca. 3. & Hill 1651. B. S. Crosthwa••tes Case, Styles Rep. f. 318. ca. 3. Vide Lamberts Ei••enar∣cha, lib. 2▪ cap. 7.
Hill. 26 Eliz. B. R. Pudseys Case, An∣dersons Rep. 1 p. f. 116. pl. 161. vid. Lamberts Ei••enar∣cha, lib. 2. ch. 7. Bonds Guide for J. P. p. 199. and Compleat J. printed 1681. p. 350.
Mich. 16 Jac. 1. B R. Waits Case, Godbolts Rep. P. 280. ••l. 397. Cro. Jac. f. 466. pl. 2.
St. 29 Car. 2. ••h. 7▪ Keb. Stat. f. 1485. sect. 5. But the Country upon notice of a Rob∣bety committed upon a Sunday are to make Hue and Cry, as if it had been done on ano∣ther day, or else to forfeit as much to the King as might have been recovered by the Party robbed.