D is required to -keep the struts of the corporate Ivillage free from fitchet spicery and other manner of wares and merchandise elsewhere in the same town in a certain place called the Earl's Half from the Monday after the feast etc., in the year etc., until the day of the purchase of this writ, by reason of which sale the said Prior has lost stallage, terrage and cottage etc., wrongfully and to his damage etc. Issue is joined. A venire facias is awarded. Process is continued until the morrow of the Purification 3 Edw. II., when the jurors come and say that the defendants and all others dwelling in Erlestrete and their ancestors and others formerly holding tenements in the said street have always hitherto sold their merchandise in the Prior's market of Priorshalf on Fridays when the Prior had his market, and not elsewhere in the town, until eight years ago the defendants began to sell in their houses and booths in Erlestrete, as the Prior complains, to his damage to the Jamount of sixty pounds. And therefore it is considered that the said Prior recover his said damages against them, and that the said William and the others henceforth on Fridays on which the said Prior has his Isaid market do not expose for sale their vendible wares within the town of Coventry elsewhere than in the said market.1 FITZ-HERBERT, NEW NATURA BREVIUM, 185D, Writs of Nuisance which are Vicontiel (Before 1537). And if the ways be straitened, or the alleys or lanes in any town, city or borough corporate be filled with filth 'or dung, or such things by which means infection may increase, then he who will sue may procure such writ to have them cleansed, and made clean; and the writ is such: "The king to the mayor and his bailiffs of Oxford, greeting: Because we have received information from testimony deserving credit, that by dung and dunghills, and also swine cots and frequent access of swine, and other filthinesses which are in the ways and lanes of the said city and the suburbs thereof, the air there is so much corrupted and infected, that a dreadful terror strikes the masters and scholars dwelling in the same, and others conversant and passing there, the benefit of wholesome air is hindered, the condition of men grievously hurt, and other intolerable disadvantages, and many dangers from such corruption are known to proceed, to the nuisance of the masters and scholars aforesaid, and of others there conversant and passing, and to the manifest 1 Maitland comments, ibid, xiii: "If this is not an 'injunction' and a 'perpetual injunction,' we hardly know what to call it. How could this 'injunction,' if such we call it, have been enforced? It seems possible that if the defendants had repeated the tort, the plaintiff might have obtained a specially worded writ reciting the breach of the injunction,' and that in this new action the judgment would be that the defendants be taken and imprisoned, and not merely that they be amerced. It is to be remembered that the action known as contra formam feoffamenti was based on the breach of a royal prohibition; and the same had been true of the action of waste." On 74, note, he is more cautious: "We can hardly say that the idea of an injunction was foreign to the common law. But could this mandate have had any other effect than that of estopping the defendants from raising the same question over again? As to this case see Mary Dormer Harris, Life in an Old English Town, p. 64." danger of their lives: We being unwilling any longer to endure such great and intolerable defaults, command you, that without any delay you cause all the streets and lanes in the city aforesaid, and its suburbs, to be cleansed and for the future kept clean from dung and dunghills, and the other filthinesses aforesaid, lest by the corruptions or filthinesses aforesaid damage or danger for the future happen to any persons by your default, for which we ought grievously to attach you, as contemners of our mandate. Witness, etc." And upon that he shall have an alias, a pluries, and attachment, if they do not cleanse them, etc. But for villages in the country which are not corporate, such writ lieth not.1 (B) Bills in Eyre 2 Mothernahmeregined fromhusband ask for awvinjunction •agaifust cou is preventing k LOCHE V. LOCHE, Select Bills in Eyre (Selden Society), pl. 10 (1292).Isabel Loche complaineth of Richard her son because that whereas John her husband devised to her all his lands and tenements within the town-one abting of of wnts within anteroffes of Shrewsbury and without it for the term of her whole life, as he was t entitled to do in accordance with the custom of the aforesaid town, from the land for all his lands and tenements are devisable there by prescription, the comfortably aforesaid Richard her son maketh it impossible for her to obtain her rents from her tenants; and the aforesaid Richard, to the loss and preju dice of his mother, distraineth the tenants of the said Isabel his mother that they may not pay, at the appointed terms, the rent which they owe to her; and, further than this, the aforesaid Richard her son, against the will of his mother, by day and night doth enter her house and doth wrangle with her and doth evilly intreat her by word and act, and doth break down against her the door of her room, so that by reason of him she cannot enjoy in peace those goods which she hath. Of which she prayeth remedy for Jesus Christ's sake. [Endorsements] Pledges for prosecution: Nicholas Ine. John de la Pole. Richard's pledges: Hugh Lowe. Reynold Porle the mercer. Failed (C) Early Chancery Cases 3 enjoyment of Pasko Livlandita calis into his presently and peenish him fore proc licing nich craftian To the lord of HOIGGES V. HARRY, 1 Cal. Ch. xxiv (reign of Henry VI). ryght worthy & reverent Holyfader & his gracyous lord My Bathe and Chauncelor of Engelond. Most mekely bysechit and full pytuously compleynt your pore and contynuall bedeman Henry Hoigges may be fru of Bodmyn of the counte of Cornewayll, Gentilman, certefyyng you dadil will profit by example and ins suffered & threaten 1 Trespass de wallia reparanda, Y. B. 18 Edw. III. (Rolls Ser.) 234 ff., to him. pl. 6 (A.D. 1344). Judgment for restoration of course of diverted stream, Carbonel v. Hayward, 3 Eyre of Kent (Selden Soc.), 128 (1314). 2 See 1, n.1; W. C. Bolland, The General Eyre (1922). 3 The available printed sources for chancery cases before the reports are: Select Cases in Chancery, ed. W. P. Baildon (Selden Soc., 1896), giving cases 1364-1471; Calendar of the Proceedings in Chancery in the Reign of Queen Elizabeth, 3 vols. (Record Commission, 1827, 1830, 1832), with earlier gracious lord hov that late on Richard Flamank of the said counte, squyer, suwyd an oyer determyner ageyn Aleyn ye Prior of Bodmyn of the said counte, so that your said suppliant was witholde as attorney with the said Richard in the said mater: on sir John Harry of the said toun of Bodmyn prest and servant of the said priour, of his malys & evele wylle, ymagenying by sotill craftys of enchauntement wycchecraft & socerye, malygnyd your said suppliant endeles to destroye thurz wechecraft abowesaid, he brake his legge, and foul was hert; thurz the weche he was in despayr of his lyff: and more over contynually fro day to day the said sotill craft of enchauntement wycchecraft and socerye usyth & occupyyth, & in opyn place pronuncit, & to fore many other dyvers persones boldely avowith & wol stonde thereby; the weche that ys weel knowen to many folkys of the said counte. And more over in opyn place saide that he wolde by ye said craft of enchauntement wycchecraft and socerye, wyrke your said suppliant his nekke to breke, and hym endeles to destroye, with oute your gracyous lordship eide & support. Plese on to yov gracyous lord of your reverent paternyte, & of your hye gracyous lordschip, to considere the gret myschef harme & damage y do un to your said suppliant; & also the gret myschef that may falle to hym here after, & to all other that buth suturs & attorneys in availe to our sovereyn lord the Kyng, & to ther cliant in all maters as reson & consience askyt and requyryth; yn as so moche as the comyn lawe may nouzt helpe: that ye wold fuchesef of your benygne grace to graunte a writ of sup poena, dyret on to the said sir John Harry, personaly to apere a fore you un to your gracyous presence, at a certyn day lynyd up a certyn payn, hym duwely to examyne of all said premys, ydo on to your said suppliant ageyn all ryght and reson'. And moreover hym to swere to forsake his eresy wicchecraft and socerye, & also hym to redresse & reforme to a good lyf; & moreover hym to punysse in amendment & correccion of hys soule, yn exsample to all other of his secte. And so to ordeyne a deu remedye & a way after your gracyous avys & dyscression, that your said suppliant may have hys pees, with Facks for relief a damage & exspence & that in the honor of GOD and in the wey of cheryte.1 O for thespons by Roland and for defailing the GODARD V. RIDMYNTON, 1 Cal. Ch. lix (reign of Henry VI.). To my full honorable and right worshipfull maister my mayster the Clerke of the Rolls. Shewith and complayneth unto your goode maistership Piers specimens beginning under Richard II; Acta Cancellariae, ed. Cecil Monro (1847), giving abstracts from masters' reports and registrars' books under Elizabeth and James I; Ancient Petitions of the Chancery and the Exchequer' ayant trait aux Iles de la Manche, ed. E. T. Nicolle (Soc. Jersiaise, 1902), Henry III. to 1454 but only a few fall under equitable jurisdiction; "Some Chancery Proceedings of the Fifteenth Century," ed. C. Trice Martin, 59 Archaeologia 1, 60 ib. 353. The List of Early Chancery Proceedings preserved in the Public Record Office, 5 vols. (1901-12), gives a very brief indication of the subject-matter of each MSS. proceeding. See also W. Barbour, op. cit. 31 Harv. L. Rev. 840. 1 See Barbour, 31 Harv. L. Rev. 853, for other cases of sorcery. Godard textwriter of London that where oone Wyllyam Rydmyngton servante of Laurence Wylkynson vynter of London sithen the feste of Ester laste paste, come into the house of your seid besecher ayenst his love and his leve, and there ravyshed and defoilyd oon Johane Hunter servante to your said supplyant, in your said besecher owne house iii. dayes togedre, your said besecher and his wyfe beyng sumtyme oute at masse and besy in other occupacions. Wherupon your seid besecher, going to Grey Frerys to here masse, the seid Willyam toke your seid besecher by the sleve, and hym resoned of the premisses, and trespacys doon in his house. And your seid besecher askid the seid Wyllyam if he wolde swere that he had not defoylid his servant or noe; and he seide nay: And there with wolde have smetyn your seid orator, whiche defendid hym as he cowde. And sithens the seid Wyllyam by untrue meanes hathe wrongfully vexid and troublid your seid servant, to his grete hurte and coste. Wherfor please it your goode Maystership at the reverence of GOD tenderly to consider the premissis, and therupon to set due correction; and that your seid besechre may be recompensid for the trespace aforsaid, and for the wrongfull vexation, as right, law, and consciens require, at the reverens of GOD and in way of charitee.1 GEORGE SPENCE, THE EQUITABLE JURISDICTION OF THE COURT OF CHANCERY, I 672.2 In the time of Edw. VI. and his successors, many orders for injunctions of this nature [waste], including a prohibition against the removal of timber felled, and damages for the waste committed, were granted. In the same reigns, particularly in that of Elizabeth, there are numerous orders for injunctions to prohibit acts of various kinds, following no doubt ancient precedents; as against sowing ridges lying in a sheep course, ploughing ancient meadow and pasture land, the infringement of patents and of copyright at least till the right at law could be ascertained, and to prohibit a parson from preaching. In 1595 a motion was made to commit a person for a breach of an injunction, restraining him from driving away the plaintiff's sheep from the land in controversy; one of the grounds was, that "He in scornful and jesting wise, said, that an injunction in the Chancery was but a thing of course, ‘and the least matter of twenty', and that any man that would might have an injunction there for any thing, with many other contemptuous words." The order was made. The Registrar's books in a great part bear out the truth of this contemptuous jest. Rog. North in his life of Lord Guilford, notices the continuance down to his time of the facility of obtaining injunctions against proceedings at law on any pretence. 1 Interesting bills praying relief against torts in Select Cases in Chancery (Selden Society) are: Bishop of Durham v. Colville, pl. 16 (1396), violent trespasses on real estate; Fraunceys v. de Clifford, pl. 70 (1402), asking injunction to enable the plaintiff to occupy his lands; Rector of the Church of the Strand v. Goldman, pl. 89 (ca. 1401), detention of timber; Craven v Treasurer of Calais, pl. 112 (ca. 1415), praying temporary injunction to prevent the depositary of ransom money from paying it over, pending the determination who was entitled to the prisoners, captured at Agincourt. 2 Spence's authorities are not reprinted here. WASTE 1 COKE, 2 INST. 299. At the Common Law Waste was punishable in three persons, viz. Tenant in Dower, Tenant by the Curtesie, and the Guardien, but not against Tenant for life, or Tenant for yeares; and the reason of the diversity was, for that the Law created their estates and interests, and therefore the Law gave against them remedy; but Tenant for life, and for yeares came in by demise and lease of the owner of the land, &c., and therefore he might in his demise provide against the doing of Waste by his Lessee, and if he did not, it was his negligence and default. 2 an adion For coaste recover volgen coaste may be. Now the remedy at the Common Law was in two degrees: First, if malia Super be that had the inheritance did feare (for example) that Tenant in Dower pointed to present would doe Waste, he that had the inheritance might before any Waste my future roade be outdone have a prohibition directed to the Sheriffe, that he shall not permit her to doe Waste . . . And Bracton's advice hereupon is as followeth: Et hoc faciat tempestive, ne per negligentiam damnum incurrat, quia melius est in tempore occurrere, quam post causam vulneratum remedium quaerere. And the Sheriffe having the Warrant of this Writ may, as in case of a Writ of Estrepement, take posse comitatus, and withstand the doing of any Waste... And this was an excellent Law, for Praestat cautela quam medela, may be used at this day. Now after Waste done there lay an Action 4 PEJURE v. CREUEQUER, 2 Bracton's Note Book, pl. 607 (1231). Petrus Peiure athachiatus fuit ad respondendum Nicholao Creuequer quare fecit uastum uendicionem et exilium de terris domibus boscis et hominibus quos habet ad terminum de hereditate predicti Nicholai in 1 "Waste," 2 Am. & Eng. Dec. in Eq. 666, note (1896). For the view that where forms of action have been abolished, waste is a breach of contract rather than tort, see Pollock, Torts (11 ed.), 359; contra, Defries v. Milne, [1913] 1 Ch. 98 (C. A.), noted in 134 L. T. 26, 354; Moore v. Townshend, 33 N. J. L. 284 (1869). 2 This statement is frequently embodied in American judicial opinions on waste, e.g., Moore v. Townshend, 33 N. J. L. 284 (1869). 3 On estrepement, see Hazeltine, "Early Equity," 275. 4 An illustration of this practice is 2 Brac. N. B. pl. 56 (A.D. 1219). |