A briefe declaration for vvhat manner of speciall nusance concerning private dwelling houses, a man may have his remedy by assise, or other action as the case requires: Vnfolded in the arguments, and opinions of foure famous sages of the common law; together with the power, and extent of customes in cities, townes, and corporations, concerning the same: together with the determination of the law, concerning the commodity, and use of houses, and their appurtenances. Whereunto is added, the iustices of assise their opinion, concerning statute law for parishes, and the power of iustices of peace, church wardens, and constables; and to know what they are to doe concerning bastards borne in their parishes, reliefe of the poore, and providing for poore children, what remedy for the same.
Monson, Robert, d. 1583., Plowden, Edmund, 1518-1585., Wray, Christopher, Sir, 1524-1592., Manwood, John, d. 1610.
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A Briefe DECLARATION For VVhat manner of speciall Nusance concerning private dwelling Houses, a man may have his remedy Assise, or other Action as the Case requires.

Vnfolded in the Arguments, and opinions of foure famous Sages of the Com∣mon Law; together with the power, and extent of customes in Cities, Townes, and Corporations, con∣cerning the same: together with the determi∣nation of the Law, concerning the commodity, and use of Houses, and their appurtenances.

Whereunto is added, The Iustices of Assise their Opinion, concerning statute law for Parishes, and the power of Iustices of Peace, Churchwardens, and Constables; and to know what they are to doe concerning Bastards borne in their Parishes, reliefe of the Poore, and providing for poore Children, what remedy for the same.

LONDON, Printed for WILLIAM COOKE, and are to be sold at his shop, neere Furnivals-Inne gate in Holbourne. 1636.

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The Arguments, and opinions of foure famous Sa∣ges of the Common Law touching the power, and extent of customes of Cities, Townes, Corporati∣ons, and Inheritances, together with the deter∣mination of the Law concerning the commodity, and use of Houses with their appurtenances, and wherein an action may be maintaineable concer∣ning the same, and wherein not.

A Man hath a house,* and the windows thereof open into an others mans house, whe∣ther hee may build a house, so as to stoppe up the same lights, or not: concerning which, I purpose to shew you my opinion, and likewise to shew unto you the necessity and use of Houses.

The first, and chiefe use of an house is to de∣fend man from the extremity of the winde, and weather. And by the receit of comfortable light, and wholsome ayre, into the same to pre∣serve mans body in health.

Therefore who so taketh from man so great a commodity as that which preserveth mans health in his castle, or house, doth in a man∣ner Page  2as great wrong as if he deseised him al∣together of his Free-hold.

As if I have a Mill, and another will turne away the water running to the same, I may bring an Assise against him.

So, if I have a Pipe, which conveyeth water unto my house through the ground of another man, and he will cut my pipe, I shall have an action against him: In like manner who so stoppeth my light, is the cause that no ayre can enter into my house, without which no man can live, and a house lacking light, is rather a dun∣geon then a house.

If one who hath a horrible sicknesse be in my house, and will not depart, an action will lye against him, and yet he taketh not any aire from me, but infecteth that which I have.

So if one cast filth neere unto my house, I may bring my action against him. If a man build so high that his house droppeth on my house, I shall have remedy against him.

And though light and ayre be common, yet if by any mans owne act they may bee made private, they may not then bee taken from him, and if they be, he shall not bee without remedy.

This appeareth by Hawkes, and Deere, which be feraenaturae, yet if by mans industry they are made tame, the owner will thereby gaine pro∣perty in them: but peradventure it will bee sayd, The soyle is his owne, and it is Damnum Page  3abs{que} injuria, what then? Though it be his owne, he must so use it, that hee hurt not his Neigh∣bour.

As if a man had a Pond of water, and will suffer it to drowne his neighbours land, he shall have remedy against him.

If a man be bound to repaire the bankes of the sea that it drowne not the land adjoyning, and so doth not, but the land is drowned; an action lyeth against him. You may perhaps say there is plenty of light remaining, this not∣withstanding our action will lye very well, for the taking away, or impayring part thereof. As an action was brought quare arctavit, and 2. H. 4. where a man had a way and another plowed the same, and it was thought there that an action would very well lie, and yet the way remained. If I have common in your Land, and you will plough part of the same Land, I shall very well maintaine an action against you. So it is of Common of Estovers, and piscary: And yet in all these cases, the whole is not gone, but some part remaineth. This proveth that though he hath not stopped the whole light of the house, yet for that he hath stopped parcell, an action is very well maintainable, but if you had said, that on the same side there had beene plen∣ty of light, it might have better stood with reason.

As touching your custome, whereby a man may stoppe his neighbours lights: I thinke this Page  4is rather Malus usus, then any custome: for as I have learned of Mr. Hales, a custome is thus defined, Consuetudo est jus non scriptum nunquam repugnans rationi naturali, and therefore if any custome swerve from reason, and naturall equi∣ty, it is but malus usus; and for that to bee aboli∣shed, for by entendment, and consideration of the law, and reason, every custome had a reaso∣nable beginning, as that case in 35. H. 6. of sel∣ling Iewels in Cheapside may have a reasona∣ble beginning. In like manner the custome of Gavelkinde, that Sonnes shall equally inherit the Lands of their Fathers. Such is the custome, that if a woman marrie without licence, that she shall loose her dowrie.

So is it also of the custome that one towne may enter Common with another. All these, and such like may well bee thought to have a reasonable beginning.

Otherwise it is, where by intendment their beginning cannot be thought reasonable.

As that a man shall pay reliefe, when that hee shall marry his daughter. And as the custome is in Mich. 35. H. 6. fol. 31. of the pledging of goods: So it is of the custome, to arrest a man before the day of payment. In like sort in 2. H. 4. that the tenant shall not put his beasts in∣to the Common, before the Lord hath put in his, which peradventure hee will never doe, so it is 10. H. 6. If the Major of a towne will prescribe to impound all beasts which shall bee Page  5dammage fesonet in his owne pound, and there to keepe them till he bee satisfied as he list, or if he prescribe to use, and occupie the same beasts howsoever he pleaseth.

In 2. R. 3. and 22. E. 4. one demanded whe∣ther it were a good custome, that if the Mayor of a towne suspect a man, that hee may arrest and imprison him 3. dayes: this was thought no good custome, but to be most abhorring, and dissonant from reason. And therefore foras∣much as houses bee necessary, and cannot bee without light, and ayre, their beginning was lawfull, necessary, and reasonable, but that a man might stoppe up his neighbours lights, was never necessary, neyther had lawfull, or rea∣sonable beginning, neyther at any time obtained the force of a law, or custome, for in K. Henry the 2. his time, it was but a constitution in London, and not any custome, or law; and therefore ne∣ver allowed, or confirmed by Parliament, for Magna Charta Ca. 9. did confirme such old li∣berties and customes as London had at that time: And therefore, if this were not any law or custome at the time of the making of that statute, it neyther was nor could bee confirmed by the same, for the more generall Statutes shall have a reasonable construction. As the Statute that doth prohibite maintenance, shall have a construction, for lawfull maintenance is not thereby prohibited. The like law is that where it is sayd, that a fine shall bee a Barre to a feme Page  6coverte, this is to be understood of a good, and lawfull fine, so this confirmation by Parliament of customes, and liberties of London, shall bee intended a confirmation of all their good, and lawfull customes, and not of unreasonable, or wrongfull usage, such as in 27. H. 6. if the house of tenant for terme of yeeres decay, that then he shall pay no rent, &c. But if your custome were then good, and so confirmed by Parlia∣ment, yet the words thereof may not bee stretched to our case, the words are visus fene∣strarum, and the Civill law sayth, a man may estop visum, and not lumen, lumen est descendens de coelo, visus est meus prospectus ad terram.

And our Law sayth, petit visum terrae, And visus and lumen differ. But Sir you cannot in this case defend your selfe both by the Com∣mon law and custome too. For you ought ab∣solutely to trust to the one of them, and if you had plead thus by way of Barre, your plea with∣out all doubt would have beene double.

As if a man will pleade affeafement with war∣renty, and rely not on the warrenty, this plea is double. So in the case at the Barre, you plead both the common Law, and the custome, and your plea is double, and therefore for all these causes I thinke the plaintiffe ought to recover.

Mr. Plowden.

Albeit it hath beene alleaged,* that the win∣dowes Page  7have beene time out of memory there, and the lights ancient, it is all one, as if the house had beene built at this day. Put the case there is a pale betwixt your ground and mine, and you build to the uttermost part of mine, by your first building I am bridled and stopt of my building; And in the Country who so ma∣keth a hedge, will make a dike in the uttermost part upon his owne land. So hee that maketh a Parke, will leave ground out of the same com∣passe without the pale for this Keeper to walke about it, for there hee may better heare if any body bee there within, then if he were within himselfe, And this is called free-bownd. If a man build his house so high that it droppeth on mine, an action will very well lye, for there is a manifest hurt, and wrong done unto me: but 22. H. 6. where the Prior of St. Edees had three Mills, an other man built an other by them, hee could not have any remedy for this. But if any of his tenants which held of him by grinding at his Mill grinde at the new Mill, the Prior may have an action against him, for hee whose the land is, might use the same for his greatest commodity, and gaine.

If a man cut downe Trees which fall upon an other mans land, hee shall have his action; otherwise it is, if a Tree fall by reason of winde. So in our case: of our owne soyle we may make the best, as in 12. H. 8. a man had a pond, and let the same runne out, whereby the next dwellers Page  8land was drowned, this was but damnum abs{que} injuria, wherefore no action would lie. In 4. E. 3. a man had a Lime kilne, which destroyed the Fruit of his neighbour, who maintained his action, for in that case this taketh place, Sic. utere, tuo, ut alienum non laedas; And Mr. Rastall sayth in his booke, if a man have a Dye-house, and the water which runneth to his house, kil∣leth the Fish of another, an action lyeth. If a man cast filth under my walls, I may punish him for it. And in the 46. E. 3. The Prior of Buckhurst had a sluice, whereby Salmons came in, and one stopped the same, wherefore hee had his action. Like whereas one cutteth away the water, which runneth to my Mill, for the proofe whereof Mr. Reynolds put a case out of 19. E. 3. where an Assise was brought for two things, one be∣cause hee had levied a house to stop the light; an other, because he could not repaire the same: There it was thought that no action would lye, because hee might have remedied, this in the be∣ginning when hee built his house. And the case was in 7. Edw. 3. in the last poynt, and there the Lawyer sayd, that hee might have left space enough in his owne Land, and the party was non-suted. Horwoods report hath two verses,

Saepe recordare si debes adificare
Vt poteris stare cum cam vis reparare.

But you ayde your selfe with a prescription Page  9that you have had light time out of minde, this is no good prescription, for a prescription must be against some party. But this is against God; You say further, that the other had no house, which is not good, for a prescription must be in the affirmative, and this is in the negative, and so sayth Prist in 22. H. 6. that a man cannot pre∣scribe in the not having a house. But admitting it to be the usage.

An usage is generall, and a constitution spe∣ciall in 12. E. 4. A diversity is taken between u∣sage, and custome, for that a custome is a thing disagreeing from the Common law, but not con∣trary, & also it would not be beautifull that Ci∣ties should have any voyd places, in them, and it would be most honourable that they should be populous. And therefore was there a Statute made 27. H. 8. caprim, that there should not be any voyd places in divers Citties, also houses are necessary for the sustenance of man, in 22. E. 4. there is a custome that if a man plough his Land, hee might turne his plough upon an other mans land: and this was thought a good custome for the favour of Tillage, much more our case of Building is to bee favoured. 8. E. 4. the custome is, that a Fish-man may drive stakes into an other mans ground to drie his Nets, which was allowed for a very good custome. Likewise 15. E. 2. one prescribed that when the Hay was carryed out of a certaine Medow, that he should occupie the land until our Lady day, which was allowed by the Court. So a man Page  10may prescribe to have Common of estovers in another mans Land, and to cut them down him∣selfe. The Lord in ancient demesme prescribed, that if the villaine of another Lord remained a yeere and a day in ancient demesme, that then it shall not bee lawfull for his Lord to take him from thence. In like manner, one may prescribe to have gravell in my Land, and all these cu∣stomes stand very well with reason. If I have a way, and another man plow up the same, I can∣not have an action on my case, but I must have an Assise and to is the booke in 2. H. 4. Mr. Fleet∣wood sayth that all customes must stand with rea∣son. And in 5. E. 4. it is sayd, that albeit all cu∣stomes are confirmed, yet they must be exami∣ned, by the rule of reason, as the custome of Ga∣velkinde standeth with reason. The Statute that giveth a writ of ravishment, de Gurd to Guarden in soccage shall bee extended to the Mayor, and Aldermen of London, to give them like remedy which was confirmed by 1. E. 3. Also the Sta∣tute that no man shall give lands in Mortamaine, yet Citizens and Freemen of London may give lands in Mortmaine by their custome, which cu∣stome is also confirmed by act of Parliament. As for the doublenesse of the plea I will not say any thing, for that it is not any Iustification, but onely for to diminish the damages, if perhaps it bee found against us. And therefore upon the whole matter, I thinke the plaintiffe ought not to recover in this action. I thinke the contrary, and first I will consider these foure things.

    Page  11
  • First, whether such buildings, ex opposito,* be a nusance by the Common law.
  • Secondly, whether this custome be a good custome.
  • Thirdly, whether such kinde of buildings be for the beautifying of the City.
  • Fourthly, whether the sayd confirmation by Parliament make this custome good, or not.

As touching the first matter, the nusance which is supposed to be in stopping up of win∣dowes in the South part of an house, I conceive is a nusance by the Common law, for by the Common law, one shall not hurt the Freehold of another, and no greater hurt, grievance, or dammage can be done to any mans Freehold, then to take away the light and ayre thereof, which is comfortable, & commodious for him, for when this light, and ayre are taken from him, his house remaineth as a dungeon. And divers cases there bee where a man taketh a∣way from another not the thing it selfe, but the commodity of the thing, and for that he shall have his remedy by action: as if I have a water running through your ground unto my Mill, and you will turne away the course there∣of, or stop the same; I may bring an assise 9. E. 3. pla. 19. yet I will confesse, that if another build a Mill by my Mill, I may not have any action, as 22. H. 6. for it is damnum absque injuria. So it is in 2. H. 4. in the case of the Schoole cadem ratio. But if any ought to grinde at my Page  12Mill, and another will hinder them, an acti∣on lyeth 9. H. 6. fo. 45. where the Pryer of St. Bartall had a Faire, and one interrupted the commers thereto, whereby his Toll was impai∣red, and yet not his Fayre, but the profit of his Fayre taken away, and hee had remedy. So in our case he hath not medled with our Freehold, and yet hath he hurt our Freehold. So in 4. E. 2.13. E. 3. If I have a Fayre, and the King will grant another, if my Fayre bee impaired by this I shall have an action, and so of a Ferry, and the reason is, because a man is compella∣ble to maintaine his Fayre, Ferry, or Market, and if he doe not, it is punishable in a Leete. But of a Schoole, otherwise it is, for that a man is not bound to maintaine it, but Houses in Cities men are bound to maintaine, and that by Statute, otherwise they may in curre the punishment. 18. E. 3. one built his house so high over mine, that the raine dropped from his up∣on mine, and it was thought there that an acti∣on was maintainable, yet that hurt might have beene amended à fortiori in our case where the hurt is perpetuall, and cannot be amended. And if for a way an action lyeth, as it is in the 42 E. 3. much more for an hurt to our health, which above all things men have regard unto, for the proofe whereof we have a writ in the Register de leproso amovendo. Likewise the selling of corrupt meate, whereby mens bodies may su∣staine harme, is punishable in a Leete, which Page  13proveth that the Common law hath regard un∣to the health, and welfare of every private man. There is a case in 4. E. 3. lib. ass. pla 3. where one built a Lime-kilne, and his neighbour was anoy∣ed by the smoke thereof, and had his remedy. If a man shall be punished for smoke, which may be avoyded, and dureth but at times, what shall we thinke of the taking away of light, and ayre, which cannot be amended, but remaineth a con∣tinuall and perpetuall nusance? as for the cases in 19. E. 3. which hath bin avouched so oft to make strongly against us, I take them to be one case, for so much as the Iustices which speake in one place, speake also in the other place; and last of all in both cases, the case was thus, an assise of nu∣sance was brought, and the Plaintiffe counted how the defendant had levied a house, so that thereby his light was stopped up, and that hee could not so well come to his house as he did be∣fore, also that he could not repaire his house so well as he could before.

Herebe said, as to the light be it a nusance, such a one as it is. Tiel. quel. for the repayring none, for when a man buildeth, he must leave so much space on his owne ground that he may come to repaire his house, and if hee had thought that stoping of his light had bin no nusance he would not have said, be it a nusance Tiel quel. but have said as he did to the other case of repayring, it is no nusance. And therfore for the first matter, I thinke this to be a nusance by the Cōmon law.

Page  14As touching the second matter, whether this custome be a good custome or not, and I thinke the same is no good custome: For consuetudo est in &c. ut supra, a custome is not against law, and reason, but this custome of yours is against reason, and is in effect, as if a man should take my life from me, for these bee the instruments to maintaine, and preserve mans life, and the law sayth, sic utere tuo, ut alienum non laedas, there∣fore a custome against this precept, is malus usus, and therefore abolendus, as the case in 21. E. 4. It the Kings Bayliffe or any other Bayliffe di∣straine Cattell, and bring them to the Lords Pound, and if the owner did not within three dayes agree with the Lord, that then he should loose bis Cattell, this was thought unreasonable and not allowed for any good custome. So in 9. H. 6. where there the Lord of a Leet would have prescribed to have all the waste ground, but hee could not, because it was against reason, that he who had nothing in the Land should have the wasts. Like unto the sayd case in the 35. H. 6. fo. 31. of pledging of goods, and such is that case in 43. E. 3. where the Lord of the Mānor would have prescribed, that none of his Tenants should marry their daughters without his licence; this custome was thought to bee against all equity, and reason. In 13 E. 3. in a dum fuit infra aetatem, one would have prescribed, that if the Plaintiffe could number 12 d. he might alien his land by the custome: this is not a reasonable custome, Page  15for a man may be able to number 12d. and yet not have discretion enough to alien his Land. So it is likewise against naturall reason, that one should barre me of my light, and ayre, without which I cannot live, and therefore these things be of necessity. Also it is against the Law that one should meddle with the Freehold of ano∣ther man, unlesse it be for a Common-wealth, as 8. E. 4. where one justified the setting in of stakes for to drie his nets, and likewise in the 11. H. 2. where one brought an action for taking or driving his Hogges, the Defendant justified, because the custome of the City was, that if any mans Hogges came into the City, and upon warning given to the owners to keepe them out: if they came againe, that then they shall be forfeited. This is a reasonable custome, be∣cause Swine are beasts that may cause diseases to bee in a City, and therefore it is against the Common-wealth, in 22. E. 4. Where it is sayd; that a man may turne his plow upon another mans land, that is a good custome, for by this meanes no land shall be unsowne, which is for the maintenance of Tillage, and the benefit of the Common-wealth. But this your custome is but a private custome, and not for the mainte∣nance of the Common-wealth, and therefore is like unto the custome in 43. E. 3. that if the te∣nant cease to doe his custome, the Lord may enter, this custome standeth not with the Com∣mon law, neither with the Statute which put∣teth Page  16the Lord to his cessavit, and giveth him not any entry. So it is to bee thought of the cu∣stome in 2. H. 4. that the Tenants shall not put their beasts into the Common before the Lord hath put in his, which peradventure hee will never doe, so that the Tenants shall never have their Common. So it is if a man prescribe that the alienation of the Husband of the Lands of his Wife shall bee good without examination of her. Like law of the Custome in 43. E. 3. that if any goods bee wayned in any manner, and if any man take them, that then it shall bee lawfull for me to distraine, and detaine the di∣stresse untill such time as I am satisfied: by these cases rehearsed it is manifest, and cleare that all usages against naturall reason, and the Com∣mon law of this Realme, are not customes, but evill usages, and not to be allowed. So in our case a custome to take away a mans light, and ayre, preservers of health, must needs be malus usus, and therefore ought to bee taken away; For good usages stand with reason, and as Bracton sayth, must give place to reason, and law. But you will say, that the Law of your City is such: I say, if it stand not with reason, and law, it shall not bee allowed. As 10. E. 3. in an ap∣peale brought by a Citizen, the defendant waged battaile, the Citizen said the custome of London is such, that a stranger should not wage battaile against a Citizen, this was thought no good custome, nor sufficient to deprive a man Page  17of a benefit, which the law giveth him. And so in 27. H. 6. in an action of debt upon a lease for yeeres, the defendant sayd that the custome was, that the plaintiffe should repayre the hou∣ses, and if not, that the defendant should pay no rent, this was thought to bee no custome allowable. For the third point, this is no beauti∣fying at all to the City. In our case Mr. Hayles his house is an ancient house, and therefore a∣gainst reason that by latter building, the com∣modity, and use of the same should bee taken away. You say also that it is a thing honourable to have buildings in Cities; This I grant, and I thinke no man will deny it: but by building of one, to impaire a better house, this is not any beautifying, or honour at all to a City, but rather the contrary. For the fourth matter, if the custome be not good, the confirmation can∣not make it good: for as I take the law, the common learning is, that a confirmation cannot make a voide thing good: as for a confirmation est firmum facere id quod non firmum fuit ante, sed fuit tamen 26. H. 8. If an Infant grant an advou∣son, and at his full age confirmeth the same, by this confirmation nothing is wrought. So it is in the case of 33. E. 3. where the lease for yeeres was made by a Bishop, and he dyed before the yeeres expired, the successour confirmeth the said lease, and nihiloperatur. Likewise in 39. H. 6. the King granted an advouson to one, and after granted the Mannor with the advouson to Page  18another, and after the confirmation is made, yet the advouson passeth not. But where the Statute limitteth, that men may devise unto corporations in Mortemaine, yet if they will devise to any that is not a Corporation, it is without warrant: And also albeit a man may not wage his law in London, yet if at the Com∣mon law, an action be brought against him, hee may: So it is of the case in 20. H. 6. that if one be brought before the Sheriffe, that the Mayor may dismisse him, yet after judgement hee may not dismisse him.

Likewise 12. E. 4. where one would have prescribed to buy things without paying of tolle, that he could not be allowed. And there∣fore I will conclude that such customes as stand with law, and reason, are to bee allowed, and contrary such as swerve from the rules of law, and reason, to be disallowed. As this custome of yours, that a man should stop his neighbours lights is altogether unlawfull, and unreasonable, and therefore the plaintiffe ought not thereby to bee barred of his action.

Mr. Manwood.

*Here be two matters chiefly to bee conside∣red, whether by the Common law this bee a nusance, to stop up part of a mans light, then if the Common law seeme to be doubtfull, whe∣ther the custome will helpe us, or not, divers Page  19cases have beene put, when a man toucheth not the Free-hold of another, but on his owne land doth wrong unto another mans. But all these cases doe vary from our case, for they are where a man hath a private profit in a thing, and another by doing an act upon his owne land taketh away the same, wherefore an action will lie, as the case in 46 Edw. 3. where the Abbot of Buckhurst had Salmons, coming in at sluice from the Sea, and a stranger stopped the same, so that they could not come, and hee had his action. So it is where one taketh away my way, because this is a thing locall. And so if water running to my Mill, if one miscarry the same: generally wheresoever I have a private profit, or interest, and one barre mee of the same, it is injury: but the ayre is not any element locall, neyther may any man miscarry it, for it suffe∣reth nothing to be voyd, also light, and ayre be not things of necessity, but of pleasure, and be not any profit in certo loco, and therefore not like unto other cases of things both profitable, and also necessary. The case of the Ferrie I will grant, that if I have a Ferrie to transport men, and another will erect another I shall have an action, because that I am compellable to main∣taine it, and the not keeping of it, is present∣able in a Leete. The same Law is of the Market, where the King granteth another Market ad nocumentum of mine, I may have a Scire-facias to repeale his letters patents if he have these words Page  20in them, that the grant should not bee to the hurt, or prejudice of any other market; and if not, I shall have an action on my case: your case was also compared to the case in 4. E. 3. and 4. ass. pla. 3. where the ass. was maintained, not for that the plaintiffe was annoyed by the smell of the smoke, but because his Apple-trees, and other his fruits were destroyed by the same, and this is a good reason, for that it is to his disin∣heritance. As for the case of the Lime-house at Ratcliffe, and the smoke of Smiths houses which cast many unsavoury smels, it is damnum abs{que} injuria. And I my selfe was by a Smith annoyed by the smell of his smoke, but yet might I not have any action against him. In 18. Edw. 3. one built an house so high that it dropped from his to mine, in this case an action will lye, for my tyles are thereby consumed, gutta cavat lapi∣dem. So of the case in 2. H. 5. if by common assent our Houses joyne and a gutter is made betwixt us, if I plucke up my part, you may maintaine an action against mee. All these cases hitherto put, have beene of taking away a locall commodity, or else of consuming some∣thing.

The case of the filth I finde not in my booke, but in the booke of Entries, and there it was Per parietes, so that the walls were hurt thereby. But I will agree with you, that if all your win∣dowes were stopped, that an action will lie, and where you say fit utere tuo ut alienum non laed as,Page  21this is not meant of things of pleasure, but of things of profit. And here is not any part of your house consumed, but herein a let of your pleasure onely, for which your action is not maintaineable. And if I have a Windmill, and another will build another by mine, I cannot have any action against him, 11. H. 4.7. E. 3.22. H. 6. But otherwise it is of a Water-milne, 9. assisar. pla. 19. where one had a Watermill, and another built neere unto him, so that hee could not grinde so much as hee was wont, in this case a man may very well mainetaine his action. If I have an Inne, and another set another in the same Towne, hee is not punishable, but if hee will stop my guesse, which come to my house, I shall have remedy. If I have a Brew-house, and another build another by mine, I shall have no action. 12. H. 8. If water fall on my land, and I make a Sluice, and let it out of my land unto another mans; this is dispunishable, for every man may doe this one after another un∣till it come unto the River, but if it be a river, otherwise it is; For there it is in loco certo. If one house should not bee adjoyning unto another, it would bee a great deformity, and if Cheap∣side were so built, it would be a strange Cheap∣side. And the Civill lawes say, that two lights on the former part, and backe of an house, are sufficient. And if you make your windowes in∣to our garden, this is a wrong done unto us, for by this meanes I cannot talke with my friends Page  22in my Garden but your servant may see what I doe, and so the wrong first begun in Mr. Hales. And therefore Vim vi repellere licet. And I S hath not consumed, or hurt any part of his house, but interrupted him of his pleasure onely. But I further affirme, that for every hurt a man may not have an action, but if a man be oftentimes hurt, he may very well have an action. As if the Lord distraineth for rent, an action lyeth not, but if he distraine so oft, that I cannot plow my land, I shall have an assise. So the Kings grant of exemption to one is good, but if it bee to di∣vers, it is not good. But if the Common law would not helpe us, yet custome will, & where∣as it hath beene sayd, that it is against naturall reason, and law, it is not so, Consuetudo ex ratio∣nabili causa privat communem legem, and unlesse it doe privare communem legem, it is no custome. As that an Infant of 15 yeeres age, may aline. For at this age he may consent to marriage, therefore in as great reason may he alien his lands; and in some places any Infant of 9 veeres may binde himselfe apprentize, which is a good custome and standeth with reason. But some customes there are that be not good, As that the tennants shall not drive their Beasts into the Common before the Lord hath put in his. So if the lesse will prescribe to surrender at his will, 7. H. 6. otherwise it is of the custome in the 14. H. 4, that the Tennant shall not alien without the presentment of the same before, this is a good Page  23custome, and yet against common reason, but yet if it hath any taste or smatch of reason, it shall be allowed. As if the Lord prescribe that the tennant shall not Common with any beasts, but those which were bred on the same land, this is good, for this will cause the tennant to breed Cattell; likewise that a female sole Merchante shall sue without her husband, this is good, and yet against Common law, and reason, because the husband hereby is discharged of all such busines: therefore if a custome have any part of reason, it shall be allowed. As 8. E. 3. that a man may make an estate to his wife during her life, and that should bee as good as an endow∣ment ad ostium ecclesia. So is it of the custome of the Isle of Man, that to steale a Capon, or a Pigge, shall bee Felony, and not to steale a Horse, or Cow, for that the one may bee hid, the other may not. Likewise is it, that the youngest sonne shall inherit, because hee is lesse able to helpe himselfe. So is it of the cu∣stome of Kent, The Father to the bough, the sonne to the plow, and yet directly against the Common law. So I thinke of the case of Hogs put by Mr. Wray, for that in the time of pesti∣lence it is dangerous to let them come into Citties.

This Citty is the greatest Citty, and most po∣pulous in this Realme, and the more populous the more honourable, & the more buildings, the more populous and honourable will it be. And Page  24therefore Building is to bee favoured. And by this building all his light is not stopped, but parcell. And Mr. Hales thereby looseth no not any great commodity, but is restrained of a lit∣tle pleasure, for which hee cannot maintaine his action.

To the act of Parliament I will speake no∣thing, but this I will say, that if any custome bee meerly voyd of reason, it is not good. As the custome in 5. H. 7. that if the Lord distraine the beasts of his tenants for rent, that hee may detaine them until hee be satisfied at his plea∣sure; and 21. H. 7. that if any doe breake the Pound he shall pay 3 l. this is a voyd, and unrea∣sonable custome to binde an estranger, and yet by common consent of the Lord, and tennants, it is good to binde the tenants.

So if I prescribe, that if any mans Sheepe goe on my ground all the day, to have the foldage of them in the night, is a good custome, because by common entendment the owner hath quid pro quo. So our custome is for the maintenance of the Citty, neyther is it against the common law directly, neither hereby any offence, or hurt is done unto Mr. Hales, for his House is not thereby impayred. And therefore, I thinke his action will not lye.

Finis de cenx Arguments.
Page  25

Resolutions of the Judges of Assises, 1633.

1. Question.

WHether the Church-wardens, and Over-seers of the poore of a Parish with assent of two Iustices of the Peace, one beeing of the Quorum, may by the Statute of 43. Elizabeth, cap. 2. or any law enforce a Parishioner of the same Parish to take a Childe of a poore parishioner of the same pa∣rish, who is not able to keepe his sayd childe, to be an apprentise?

Resol. The Statute of 43. of Elizabeth, which sayth, that the Church-wardens and over-seers of the parish shall put out Children to bee ap∣prentices, necessarily implyeth, that such as are fit must receive Apprentices, and the putting out of poore Children to be apprentices is one Page  26of the best wayes for the providing for the poore.

2. Q. If they may, then whether they must not give money with him, and who shall deter∣mine what money shall bee given with him, if the party that is to take such an apprentice, and the Church-wardens, and Overseers cannot agree thereupon?

Resol. There is no necessity that money must be given, but that must be left to the discreti∣on of the Church-wardens, and Overseers, all circumstances of age and ability, beeing considered, and if they cannot agree with the party, then the Iustices of Peace neere adjoyning, or in their default the Sessions of peace are to determine these Controver∣sies.

3. Q. Whether a Knight, Gentleman, Cler∣gy-man, or Yeoman, or one that is Sojour∣ner, using husbandry, cloathing, or grasing, or the like, may be enforced to take such an ap∣prentice?

Resol. Every man who is by calling or pro∣fession or manner of living, that entertai∣neth, and must have the use of other ser∣vants of the like quality, must entertaine such apprentices, wherein discretion must bee given upon due consideration of circumstan∣ces.

4 Q. Whether a wealthy man keeping few or no servants, nor wanting a servant, but li∣ving Page  27privately may be enforced to take such an apprentice; if not, then whether hee may bee taxed towards the putting forth of such an ap∣prentice?

Resol. For the receiving of such apprenti∣ces, the answer may bee referred to the que∣stion next before; but out of doubt every such person must contribute to the charge, as to other charges for the provision for the poore.

5. Qu. Whether they may enforce a parishio∣ner that is of one parish, to take such a childe, apprentice, that is of another parish, but with∣in the same County or division, if the proper parish be not able to provide for the children of the same parish?

Resol. The Iustices may provide Masters for them in other parishes within the same hundred; if the same hundred be not able, then out of that hundred in the rest of that County; As for other provision for the poore, which must bee at a quarter Sessions.

6. Q. If such a Parishioner may be enforced to take such an apprentice, and shall refuse not onely to take such an apprentice; but also re∣fuse to be bound to appeare at the next quar∣ter Sessions, or Assizes, what shall be done to him?

Resol. If any refuse; let such a one bee bound over to the next Sessions or Assizes; if he re∣fuse to give such bond, let him bee sent to Page  28the Gaole, there to remaine until hee will give such bond.

7. Q. If such a Parishioner who refuseth to take such an apprentice shall bee bound over to the Sessions for not taking such an apprentice, and when hee appeareth there, shall likewise refuse, what shall bee done to him, and what shall bee done to the Parents who refuse to suffer their Children to bee put out to bee ap∣prentices, themselves not being able to main∣taine them?

Resol. If at the Sessions or Assizes such a one refuseth to take an apprentice and his excuse be not allowed, it is fit he bee bound to the good behaviour, and it will be a good course to indict such a refuser for a contempt, and thereupon to fine & imprison him; if he refuse to be bound to the good behaviour, let him be imprisoned un∣till he will; & the Kings book of orders directs that such bee bound with good sureties to ap∣peare at the Councell board; & if the Parents of such poore children refuse to suffer their chil∣dren to be bound apprentices, or being bound, entice them away, themselves not beeing able to maintaine them, let them bee committed to the house of correction.

8. Q. Whether it be in the power of any ge∣nerall quarter Sessions to mitigate any penalty upon a Statute law; If the party indicted shall submit himselfe to the fine of the Court, and waive the traverse?

Page  29Resol. If the party be convicted or confesse the fault, it is not in the Power of the Court to mitigate the fine, in such cafes where the Statute makes it certaine: but if the party in∣dicted protesting his Innocencie, yet quia no∣luit plitare cum domino Rege puts himselfe up into the grace of the Court, the Court may im∣pose a moderate fine, and order to forbeare the prosecution.

9. Qu. If any be bound to appeare at the Ses∣sions, and shall tender submission to the Court, whether the Sessions may stay the indictment, and mitigate the fine aforesayd upon the con∣fession of the fact?

Resol. This is answered before to the next precedent Article.

10 Q. If a man be convicted for being drunk, tipling, and keeping an unlicensed Alehouse, or being licenced, for suffering others to re∣maine tipling in his house, or for swearing or driving Cattell upon the Sunday contrary to the Statute in that case provided: whether the Iustice of Peace, before whom hee was con∣victed, or any other Iustice of the Peace may discharge him of all or part of the Forfei∣ture or punishment appoynted by the Sta∣tute?

Resol. The Iustices have no such power of mitigation after conviction, where the Sta∣tute appoynts the measure of the punish∣ment.

Page  3011. Qu. Whether a Constable may upon a warrant for carrying one to the house of cor∣rection for keeping an unlicenced Alehouse upon the second conviction, breake open the house wherein the party convicted is, to appre∣hend him?

Resol. This question is to be advised upon, it is put in generall termes and referred to bee considered in the particular where it appea∣reth.

12. Qu. If a woman unmarried be hired from weeke to weeke, or from halfe yeere to halfe yeere, in one Parish, and there is gotten with child, and then goeth from thence unto another parish, where she is setled in service by the space of two or three moneths, and then discovered that she is with childe: The question is, whe∣ther shee shall be setled in the Parish where she was begotten with childe, or in the Parish where she was last setled?

Resol. The place where such a woman was lawfully setled, is the direction in this case, not where she was begotten with child.

13. Qu. If a woman-servant unmarried bee begotten with child, and then goeth out of her Mistris service, before or after it is discovered that she is with child, and the reputed father be runne away, or is not able to free the Parish: whether the Master may be enforced to pro∣vide for her till shee bee delivered, and for a moneth after?

Page  31Resol. If the Master hath legally dischar∣ged his house of such a servant, hee is no more bound to provide for her then any o∣ther.

14. Qu. In case a Parish consist part of anci∣ent Demeasne, and part of Guildable, an Assize is made for the reliefe of the maihemed Souldiers, the Gaole, &c. according to the Statute of 24. Elizabeth, cap. 2. whether the tennants in ancient demesne shall contribute with the Guildable for the payment of the Assize?

Resol. The Statute doth not distinguish be∣tweene the ancient Demeasne and the Guildable in these cases, ubi lex non distinguitur, ibi nec nos distinguimus.

15. Q. Whether an Indictment of forceable detainer bee within the Statute of 1. Iacobi, cap. 5. and not to be removed by Certiorari, unlesse the partie Indicted first finde sureties accor∣ding to that Statute, and whether the party In∣dicted bee to be bound in his absence to prose∣cute according to that Statute, and whether an Indictment of forcible entry, &c. found at a private Sessions bee to be removed by Certio∣rari without sureties, according to that Sta∣tute?

Resol. This is fittest to be left unto the Court of Kings-bench, to whose Commission, and ju∣risdiction this is most proper.

16. Q. If one be convicted upon the Statute of 3. Car. R. cap. 13. for driving of Cattell Page  32on the Sunday through severall parishes; whe∣ther hee shall forfeit 20. s. to every of the sayd Parishes; or onely to one; if to one, then to which of them?

Resol. This Statute giveth the Forfeiture but of one 20. s. for one Sabbath day. Although the driving on that day bee through divers Pa∣rishes. Therefore where the action is first at∣tached, and the distresse first taken, that parish shall have the benefit of the Forfeiture, and not the other.

17. Qu. If one who is under the age of 30. yeeres, and brought up in Husbandry, or a mayd servant, or brought up in any of the arts or trades mentioned in the Statute of 5. Elizab. c. 4. and not enable according to that Statute, to live at his or her owne hand, shall bee war∣ned by two Iustices of the Peace to put him or her selfe in service by a day prescribed by them, and shall not doe the same accordingly, but shall after continue living at his or her owne hand, what course shall bee taken with such a person, and how punished?

Resol. Such persons being out of service, and not having visible meanes of their owne, to maintaine themselves without their labour, and refusing to serve as an hyred servant, by the yeere, may be bound over to the next Sessions or Assizes, and to be of the good behaviour in the meane time, or may be sent to the house of correction.

Page  3318. Qu. Whether the taxe for the reliefe of the poore, upon the Statute of 43. Elizabeth, shall bee made by ability or occupation of lands, or both, and whether the visible abi∣lity in the parish where hee lives; or gene∣rall ability wheresoever, and whether his rent received, within the Parish where hee lives shall bee accompted visible ability, and whether hee shall bee taxed of them onely and for any Rents received from other Pa∣rishioners: and what shall bee sayed visible a∣bility? Resol. The Land within each parish is to be taxed to the charges in the first place equally and indifferently, but there may bee an additi∣on for the personall visible ability of the pari∣shioner within that Parish according to good discretion, wherein if there be any mistaking, the Sessions, &c. or the Iustice must judge be∣tweene them.

19. Q. Whether shops, salt-pits, sheds, pro∣fits of a Market, &c. bee taxable to the poore as well as lands, Cole-mynes, &c. expressed in the Statute 43. Elizabeth?

Resol. All things which are reall, and a yeerely Revenue, must be taxed to the poore.

20. Q. Whether the taxe for the County stocke, Gaole, and house of Correction is to bee made by the Statute of 14. Elizabeth, cap. 43. Elizabeth: by ability, and upon the In∣habitants of the parish onely, or upon Page  34them, or the occupiers of Lands, dwelling in that parish: or whether such as occupy lands in that parish, and dwell in another parish shall be taxed?

Resol. If the Statute in particular cafes give no speciall direction, it is good discretion to goe according to the rate of taxation for the poore: but when the Statutes themselves give directions, follow that.

21. Q. Whether any taxes ought to be made for the charges that petty Constables and Bor∣shoulders are at in conveying rogues from pa∣rish to parish, and relieving of them and how to be rated?

Resol. It is fit to relieve the Constable and Tything-men, in such sort as it hath beene used in the severall places where they live.

22. Qu. Whether a Iustice of Peace may dis∣charge a servant being with childe from her ser∣vice, allowing that as a reasonable cause that she is thereby made unable to doe the service which otherwise she might have done, and if hee may discharge her, whether that Parish shall provide for her, till her delivery, if she cannot provide for her selfe: and so also if her time be expired before her delivery, who shall provide for her after her time ended?

Resol. If a woman being with childe procure her selfe to bee retayned with a Master who knoweth nothing thereof, is a good cause to discharge her from his service. And if shee bee Page  35begotten with childe during her service, it is all one, but the Master in neyther case must turne away such a servant of his owne authority. But if her terme be ended, or shee lawfully dischar∣ged; the Master is not bound to provide for her, but it is a misfortune falne upon the parish, which they must beare, as in other cases of ca∣suall impotency.

23. Qu. Whether being delivered for a ba∣stard childe in one parish, and goeth into ano∣ther with her childe; and becomes vagrant, and so is sent to the place of her birth: her bastard childe being under the age of 7. yeeres, shall bee setled with the mother, and there main∣tained, if the mother be not able, nor the repu∣ted Father knowne, found: or whether it shall be sent to the place of its birth, or being setled with the mother, whether the Parish where it was borne, shall be ordered by the two next Iu∣stices to pay a weekly summe towards the main∣tenance of it?

Resol. The Bastard childe must bee placed with the mother, so long as it is within the quality or condition of a Nurse childe, which shall bee, till seven yeeres of age; and then it is fit to be sent to the place of its birth to bee provided for, the mother or reputed father, not being able. And the Parish where the childe is borne shall not be forced to contribute to the charge, as long as the Mother lives, and the child be under 7. yeeres old.

Page  3624. Q. A man with his Wife and Children takes an house in one Parish, for a yeere: and before the end of his terme is unlawfully put out of possession, and after taketh part of an house, as an Inmate in another Parish, from whence hee is also put out, and then not beeing able to get any dwelling, they come to lye in a Barne in a third Parish where the Husband falleth sicke, and the Wife is delivered of a∣nother childe, where ought these to bee set∣led?

Resol. If a man or woman having house or habitation in one parish be thrust out, this is an illegall unsetling which the Law forbiddeth, for none must bee enforced to turne vagrant, and such one must bee returned to the place where hee or shee was last lawfully setled, and the Childe also borne in the time of this distracti∣on.

25. Q▪ Whether an apprentice put out by the Churchwardens, &c. according to the Sta∣tute to a Master in another Parish, if his Master dye and leave no Executor or Administrator fit to keepe an apprentice or able to place him: Hee shall bee provided for in the parish where hee was apprentice or shall bee sent backe to the parish from whence hee was put out?

Resol. Servants and apprentices are by law setled in that parish, and if they become impo∣tent there, the parish must abide the adven∣ture Page  37after their terme or time of service be law∣fully ended.

26. Q. What is accompted a lawfull setling in a parish, and what not?

Resol. This is too generall a question to re∣ceive a perfect answer to every particular case which may happen: but generally this is to bee observed, that the law unsetleth none who are lawfully setled; nor, permits it to be done by practice, or compulsion, and every one who is setled is a native housholder, sojourner, an ap∣prentice or servant for a moneth at the least, without a just complaint made to remove him or her, shall be held to be setled.

27. Qu. A rogue is taken at C. and will not confesse the place of his birth: neyther doth it appeare otherwise but that hee confesseth the last place of his habitation to be at S. hereupon he is whipped and sent to S. at his comming to S. the place of his birth is there knowne by some to be at W. and thereupon the rogue confesseth it to be so: whether he might without any new vagrancy be sent to W?

Resol. In this case it is fit to sent such a rogue to the place of his birth: for this is but a mista∣king and no legall setling.

28. Q. If an Indictment be preferred to the grand Iury of the quarter Sessions of the peace against one for murther, manslaughter, for robe∣ry, felony, or Petilarceny, and ignoramus found thereupon, whether the said Sessions may deliver the party by Proclamation or not?

Page  38Resol. Not by Proclamation at all, but for petty Lacenyes, and other petty Fello∣nies; in discretion the Gaole may be delivered of them.

29. Q. If a Constable be chosen and refuseth to take his Oath, what shall be done, and whe∣ther a Constable may make a deputy, and by what meanes?

Resol. The refusall or neglect to take oath in such a case is a contempt worthy of punishment, and thereupon to fine, and imprison him, and the making of a deputy is rather by toleration, then by law.

30. Qu. If a Constable dye or remove out of the parish where, &c. How is his place to be sup∣plyed?

Resol. By the Lord of the Leete, if that time fall neere, otherwise by the Sessions; but if that bee too farre off, then by the next Iustices:

31. Q. If a poore weake man be chosen Con∣stable or Tything-man, and bee unfit for the place, how may hee be removed, and a fit man sworne in his roome?

Resol. The Iustices of Peace must helpe this, and if the Lord of the Leete have po∣wer to choose a Constable or Tything-man and performe so ill, it is a just cause to seize his liberty.

32. Qu. If a Nurse-childe, a Scholler at a Grammar-schoole, or in the Vniversity prove Page  39to be impotent by Sicknesse, lamenesse, lunacy, or discovery of Ideocy, &c. how such persons shall be disposed?

Resol. A Nurse-childe, or a Scholler at the Grammar-schoole, or at the Vniversity, or per∣sons sent to the Common gaole, Hospitall, or houses of Correction, are not to bee esteemed as persons to be setled there, more then Travai∣lers in their Innes, but their setling is where their Parents are setled, and Children borne in common Gaoles, and House of correction, their parents being prisoners, are to be maintai∣ned at the charge of the County.

33. Qu. What proportion Parsonages, or Tithes shall beare to the taxation of the poore of the parish?

Resol. The Parson or Vicar presentative, shall according to the reasonable value of his Parsonage, having consideration to the just de∣ductions.

34. Qu. Whether for the placing the poore of the parish, not to bee remove by consent of the parish, these poore men may not bee placed as Inmates for a time?

Resol. They may by expresse words of the Statute of the 43. of Elizabeth.

35. Qu. If a parishioner or owner within a parish do bring into the parish without the con∣sent of the Parish, a stranger of another parish, which is, or apparantly is like to bee burthen-some unto the parish, how they may ease them∣selves?

Page  40Resol. By taxing such a one to the charge of the rates of the poore, not onely having respect to his ability or the land he occupies, but accor∣ding to the dammage and danger he bringeth to the parish by his folly.

36. Qu. For warding in the day-time, for ap∣prehending of Rogues, whether the Constable may not enlarge it to a farther time?

Resol. Warding in the day-time is of great use, and must bee left to the discretion of the Constables or direction of the Iustices to vary according to the occasion.

37. Qu. Whether Alehouses ought to bee al∣lowed only in thorow-fare Townes, and others in other places to bee restrained onely to sell to the poore out of doores.

Resol. The Iustices shall doe very well to allow none but in places very fit for theyr scituation and uses, and to moderate the num∣ber.

38. Q. A man for his quality otherwise fit to be a Constable, or of other Office of that nature, procures himselfe to bee the Kings servant ex∣traordinary, and by that meanes would excuse himselfe to serve in the Country?

Resol. A servant extraordinary may well performe his ordinary service in the Countrey according to his quality.

Page  41

The Iustices opinion touching the Commissions by which the Iustices sit at Newgate.

*THE Iustices at Newgate sit by vertue of two Commissions (viz.) Gaole delivery and Oyer, and de∣terminer.

By the Commission of Gaole delivery they may try all prisoners in the Gaole or by Byle, or such as bee indicted will render themselves, generally for all Felonies: and al∣so for such other offences as are particularly as∣signed to them by Statute.

The Statute of 4. Elizabeth 3. cap. 2. doth give them power to receive Indictments a∣gainst Prisoners or such as are upon bayle,* and to proceed to try the same (viz.) Indictments taken before the Iustices of the peace, and by equity thereof all Indictments before coro∣ners, 3. Mar. Bro. Commission. omnium. 24. sayth, That the Commission is ad deliberand. Gaol. de prison. in eisdem existen. But they cannot take Indictments as Iustices of Gaole delivery, but being Iustices of the peace, they may take In∣dictments against prisoners, but not against them that bee at large, for asmuch as power Page  42is given them, consequently they must have meanes to doe so, which is by Indictments, Id quarend.

Howsoever it is cleere, that they may enquire of many offences and take Indictments in such cases where power by the Statute is given to the Iustices of Gaole delivery, in such cases where they have authority by Law or Statute there the tytle of Indictments is, that Ad gao∣lam deliberationem tent. before the Commissio∣ners of Gaole delivery, I. S. was indicted, and the record must be made up so.

And whereas by the Statute of 4. Eliz. 3. cap. 2. Indictments taken before Iustices of peace or Coroners, or any other against any Prisoners, then the entry of the Indictments is returned taken, Memorand quod ad generalem Sessionem tent. before A, B, C, &c. Iustices ad pacem in Com. Middlesex or London, I. S. was in∣dicted, and then tryed before Iustices of Gaole delivery, and by vertue of the sayd Statute, In∣dictments taken before Iustices of the peace of London or Middlesex, are tryed before the Iusti∣ces of Gaole delivery.

The Commissioner of Oyer and Terminer is Ad triand. inquirend. audiend. & determinand. They may enquire of all offences mentioned in the Commission, albeit the offendors bee at large, but they cannot try Prisoners upon In∣dictments taken before any other then them∣selves, as the Iustices of Gaole delivery may by Page  43the aforesayd Statute, unlesse there bee a spe∣ciall Commission made, as it was in the case of the Earle of Leicester,* mentioned in Plow. Com. for the ordinary Commission of Oyer, and terminer is ad inquirend. audiend. & determinand. therefore they cannot determine of things unlesse they made enquirie first, and on the other side also the Iustices of Gaole delivery may try Indictments taken before Iustices of the peace, yet if one indicted before Commissi∣oners of Oyer and Terminer, the Iustices of Gaole delivery cannot try the same, because the Record of the Commission of Oyer and Terminer are to bee returned in the Kings Bench, 44. E. 3.31.

The Commission and the Records of the proceedings before the Iustices of Gaole deli∣verie, are to bee returned to the Custos Rotu∣lor. of the County, when the same persons are Iustices of Gaole delivery, and of Oyer and Terminer, they may sit the same day and place, and enquire by the same Iurie, but the entry of the Records must be severall, according as the Indictment is.

At the Assises in the Countrey, the Iustices have their severall power as the Iustices of Gaole delivery, Oyer and Terminer, and Iusti∣ces of the peace.

But when the Records are made up, they must bee according to the power they made ele∣ction to proceed upon.

Page  44This is the regular and legall course. But the Clerkes of the Assizes promiscuously make entry thereof, But if a Writ of Error bee brought, they must certifie according to Law, or else it will bee erronious, and so upon a Certiorari.

The Sessions of London may bee begun at the Guild-hall, and then adjourned to New∣gate, if some Indictments bee at Guild-hall, then those must bee so certified: if others at Newgate, then the adjournment must bee mentioned, and that the Indictment was then taken.

Note that the tryall of Indictments taken before Iustices of the peace of London, can∣not bee tryed at Newgate, as in nature of a tryall before Iustices of the peace at London, for many of the Commissioners, for Gaole de∣livery, are not Iustices of the peace for Lon∣don, but in such cases the tryall must be before the Iustices of Gaole delivery: as upon In∣dictments taken before the Iustices of the peace of London; as in the case of Indictments ta∣ken before the Iustices of the peace of Mid∣dlesex.

But if Indictments at Newgate be original∣ly taken before them, as Iustices of Gaole de∣livery, then it is inquirable how the Iurie sworne, and impannelled to enquire at the Sessions of the peace of London, or Middle∣sex, doe serve to present Indictments before Page  45the Iustices of Gaole delivery at Newgate, un∣lesse the custome and usage will warrant, the two severall Iuries, sworne at the Sessions of the peace for London, or Middlesex, are also by the same oath and impannelling to serve for the grand Iury for the Commission of Gaole deli∣very, and Oyer, and Terminer.

Vpon conference with Mr. Keeling, and the Clerkes for Newgate of London, and Middlesex, and the Clerkes of Assizes, and view of the severall Entries, a more ma∣ture and certaine resolution may bee given, this being in hast, and without such consi∣derations as were requisite.

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