Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	case_n	peace_n	session_n	2,679	5	10.2445	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A73793	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.	1636 (1636)	STC 6453.5; ESTC S109443	22,208	48

themselves Resol 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 according to the dammage and danger he bringeth to the parish by his folly 36. Qu. For warding in the day-time for apprehending 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 allowed 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 number 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 extraordinary 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 The Iustices opinion touching the Commissions by which the Iustices sit at Newgate Anciently felonies included all trespasses therefore the Iustices of Gaole delivery have power to hold plea of trespasses against them in prison or upon bayle to render themselves THE Iustices at Newgate sit by vertue of two Commissions viz. Gaole delivery and Oyer and determiner By the Commission of Gaole delivery they may try all prisoners in the Gaole or by B●yle or such as bee indicted will render themselves generally for all Felonies and also for such other offences as are particularly assigned to them by Statute The Statute of 4. Elizabeth 3. cap. 2. doth give them power to receive Indictments against Prisoners or such as are upon bayle v. 1. Mar. Dyer 99. Iustices of Gaole delivery hold pleas of all appeales of felony or murder against one in prison by their generall Com and of appeales so by the same reason to take Indictments and to proceed to try the same viz. Indictments taken before the Iustices of the peace and by equity thereof all Indictments before coroners 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 Indictments against prisoners but not against them that bee at large for asmuch as power is 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 gaolam deliberationem tent before the Commissioners 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 indicted and then tryed before Iustices of Gaole delivery and by vertue of the sayd Statute Indictments taken before Iustices of the peace of London or Middlesex are tryed before the Iustices 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 Indictments taken before any other then themselves as the Iustices of Gaole delivery may by the aforesayd Statute unlesse there bee a speciall Commission made as it was in the case of the Earle of Leicester 3. Mar. Bro. Com. 24. 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 Commissioners 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 deliverie are to bee returned to the Custos Rotulor 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 Iustices of the peace But when the Records are made up they must bee according to the power they made election to proceed upon This 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 Newgate 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 cannot bee tryed at Newgate as in nature of a tryall before Iustices of the peace at London for many of the Commissioners for Gaole delivery are not Iustices of the peace for London but in such cases the tryall must be before the Iustices of Gaole delivery as upon Indictments taken before the Iustices of the peace of London as in the case of Indictments taken before the Iustices of the peace of Middlesex But if Indictments at Newgate be originally taken before them as Iustices of Gaole delivery then it is inquirable how the Iurie sworne and impannelled to enquire at the Sessions of the peace of London or Middlesex doe serve to present Indictments before the Iustices of Gaole delivery at Newgate unlesse 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 delivery 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 mature and certaine resolution may bee given this being in hast and without such considerations as were requisite FINIS

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 pestilence it is dangerous to let them come into Citties This Citty is the greatest Citty and most populous in this Realme and the more populous the more honourable the more buildings the more populous and honourable will it be And therefore 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 little pleasure for which hee cannot maintaine his action To the act of Parliament I will speake nothing 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 pleasure and 21. H. 7. that if any doe breake the Pound he shall pay 3 l. this is a voyd and unreasonable 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 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 parish 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 apprentices necessarily implyeth that such as are fit must receive Apprentices and the putting out of poore Children to be apprentices is one of 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 determine 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 discretion 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 Controversies 3. Q. Whether a Knight Gentleman Clergy-man or Yeoman or one that is Sojourner using husbandry cloathing or grasing or the like may be enforced to take such an apprentice Resol Every man who is by calling or profession or manner of living that entertaineth and must have the use of other servants of the like quality must entertaine such apprentices wherein discretion must bee given upon due consideration of circumstances 4 Q. Whether a wealthy man keeping few or no servants nor wanting a servant but living privately may be enforced to take such an apprentice if not then whether hee may bee taxed towards the putting forth of such an apprentice Resol For the receiving of such apprentices the answer may bee referred to the question 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 parishioner that is of one parish to take such a childe apprentice that is of another parish but within 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 refuse to be bound to appeare at the next quarter 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 refuse to give such bond let him bee sent to the 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 apprentices themselves not being able to maintaine 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 untill he will the Kings book of orders directs that such bee bound with good sureties to appeare at the Councell board if the Parents of such poore children refuse to suffer their children 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 generall 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 Resol 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 indicted protesting his Innocencie yet quia noluit plitare cum domino Rege puts himselfe up into the grace of the Court the Court may impose a moderate fine and order to forbeare the prosecution 9. Qu. If any be bound to appeare at the Sessions and shall tender submission to the Court whether the Sessions may stay the indictment and mitigate the fine aforesayd upon the confession 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 remaine 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 convicted or any other Iustice of the Peace may discharge him of all or part of the Forfeiture or punishment appoynted by the Statute Resol The Iustices have no such power of mitigation after conviction where the Statute appoynts the measure of the punishment 11. Qu. Whether a Constable may upon a warrant for carrying one to the house of correction for keeping an unlicenced Alehouse upon the second conviction breake open the house wherein the party convicted is to apprehend 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 appeareth 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 whether 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 provide for her till shee bee delivered and for a moneth after Resol If the Master hath legally discharged his house of such a servant hee is no more bound to provide for her then any other 14. Qu. In case a Parish consist part of ancient 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 betweene 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 according to that Statute and whether the party Indicted bee to be bound in his absence to prosecute according to that Statute and whether an Indictment of forcible entry c. found at a private Sessions bee to be removed by Certiorari without sureties according to that Statute Resol This is fittest to be left unto the Court of Kings-bench to whose Commission and jurisdiction this is most proper 16. Q. If one be convicted upon the Statute of 3. Car. R. cap. 13. for driving of Cattell on the Sunday through severall parishes whether 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 Parishes Therefore where the action is first attached 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 warned 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 18. 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 ability in the parish where hee lives or generall 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 Parishioners and what shall bee sayed visible ability 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 addition for the personall visible ability of the parishioner within that Parish according to good discretion wherein if there be any mistaking the Sessions c. or the Iustice must judge betweene them 19. Q. Whether shops salt-pits sheds profits 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 Inhabitants of the parish onely or upon them 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 Borshoulders are at in conveying rogues from parish 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 discharge a servant being with childe from her service 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

have gravell in my Land and all these customes stand very well with reason If I have a way and another man plow up the same I cannot have an action on my case but I must have an Assise and to is the booke in 2. H. 4. Mr. Fleetwood sayth that all customes must stand with reason And in 5. E. 4. it is sayd that albeit all customes are confirmed yet they must be examined by the rule of reason as the custome of Gavelkinde 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 Statute that no man shall give lands in Mortamaine yet Citizens and Freemen of London may give lands in Mortmaine by their custome which custome 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 First whether such buildings ex opposito Mr. Wrayes Argument 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 windowes 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 away 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 thereof 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 Mill and another will hinder them an action 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 impaired 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 compellable 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 upon mine and it was thought there that an action 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 sustaine harme is punishable in a Leete which proveth that the Common law hath regard unto 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 anoyed 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 continuall 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 nusance 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 before 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 As 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 therefore 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 distraine 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