| 1372.075 |
1372 |
|
Nuisance |
Nocumentum
Nusance
Defens
Brief
Corporation
Judicium |
| Mich. |
46 |
Edw. 3 |
7 |
23b-24a |
Tauke, William Sjt Tanke (for D)
Percy, Henry Sjt Persay (for P)
Tauke, William Sjt Tank
Fencotes, John de Sjt Finch (for D)
Percy, Henry Sjt Persay
Tauke, William Sjt Tank
Percy, Henry Sjt Persay
Belknap, Robert Sjt (for P)
Tauke, William Sjt Tank
Percy, Henry Sjt Persay
Percy, Henry Sjt Persay
Belknap, Robert Sjt |
Robert |
Abbot of Buckfast (Bokfast) |
|
|
|
Thomas, bailiff of Staverton |
Exeter, church of St. Peter of
Staverton
Buckfast (Bokfast)
water of Dart
Dartmouth
Staunton
Staverton, manor of
Asperton (Asporton') |
|
Fitzherbert Nusauns (not Nusance) 7
Fitzherbert Briefe 603
Brooke Nusans (not Nusance) 6
Brooke Corporations 13
Statham Nusannz 2 |
same case variant report 1372.123ass = 46 Edw. 3, Lib. Ass. 9, fols. 306b-307a
later proceeding 1376.071 = Hil. 50 Edw. 3, pl. 23, fols. 11a-12a
cross-referenced in Baker & Milsom, Sources of English Legal History, p. 595 n. 18. |
|
| Robert Sumpt' Decanus Sancti Petri Exon' & capitulum ejusdem Ecclesiae & Johannes Weliot clericus |
54 |
|
Cistercian Abbey of the Blessed Virgin Mary at Buckfast, Devon. Cathedral, Dean and Chapter of St. Peter at Exeter, Devonshire. |
Latin record: (Latin begins) Robert Sumpt', Dean of St. Peter of Exeter, and the chapter of the same church, and John Weliot, clerk, were attached to answer to Robert, Abbot of Buckfast, of a plea why they together (ipsi fil') with Thomas bailiff of Staverton etc., unjustly and without judgment built a certain weir (gurgitem) in Staverton to the nuisance of his freehold in Buckfast after the first etc. And the abbot says that where he himself has his weir in the vill of Buckfast in the water of the Dart, from which weir the water runs to the vill of Staverton, and from Staverton to the high sea outside the port of Dartmouth, and from the same weir the same abbot had a certain opening (apertur'), six feet wide, (ubicunque current), through the middle course of the aforesaid water in all places and domains to the high sea outside the aforesaid port, through which opening salmon and trout and other marine fish were accustomed to swim from the sea to the aforesaid weir etc., the aforesaid dean and chapter and others similarly etc. built a certain other weir in Staunton aforesaid across (ex traverso) the water and the aforesaid openings in the aforesaid water between the weir of the abbot and the high sea outside the aforesaid port after the first etc., by which weir so built, the aforesaid opening was obstructed etc., so that fish could not swim as they had been accustomed to do to the weir of the said abbot. Thus where the said abbot was accustomed to take, in his aforesaid weir, fish to the value of 20 pounds, now he can take fish only to the value of 10 shillings per year, and thus a nuisance. And he said that it worsened (deterioratus est) and he has damages to the value etc., and he produces suit thereof. And the aforesaid dean etc. come and defend etc. (Latin ends).
The defendants demanded judgment of the writ, because John Wilmot was of the chapter, thus named twice, (Latin begins) and this was not allowed (Latin ends). Then the defendants' counsel said how the said John Wilmot, on a certain day in a certain year, had brought in this Court (cieins) a writ of Trespass against the said abbot and his fellow monks, for knocking down his weir (gors) of Staverton, for the building of which weir the said abbot complained now, and he had supposed by his count that the said abbot and his fellow monks had continued this tort from the day aforesaid for four years afterwards, within which years the abbot's writ was purchased. The said abbot and his fellow monks came and said and justified the battery of his weir by reason of the title that they had alleged now to have the (coverture), accepting the continuance of the battery of his weir, which matter was in his purchased writ, as appeared in the record of the said plea, which was still pending in this Court (ciens), so the abbot's writ was abatable. The plaintiff said that the defendants did not deny that the plaintiff's writ was purchased while the defendant's writ was pending, and although the defendants had put the continuance in their count, this should not harm the plaintiff, because it was nothing of the form in this case, and also the plaintiff's justification referred only (tantum) to the day that the defendants supposed that the trespass was committed. The defendants said that in case the plaintiff had put forward a release at that time against them, in bar of their action, they would have been foreclosed from the action for the whole time of which they had supposed the continuance in case the deed had been found against them; also it seemed to the defendants here, since the abbot had justified the knocking down for cause, as openly the continuance as (l'argeement), as his count supposed, so that etc. A serjeant said that their justification should refer to the day of the battery of their weir; it was not the form of counting to speak of a continuance of the battery of a weir and of a house, because it could not be continued by reason of prescription; it was different of grass, and the defendants' plaint was still pending and not tried; therefore he told them to answer. And then he said that while this writ was pending, the abbot had knocked down the weir of which he complained; ready, and he pleaded this plea for John Wilmot as tenant of the manor of Staverton, where he had supposed the nuisance was made. The plaintiff asked what the dean and the chapter answered. The defendants said that they wanted the same plea.
Upon this two serjeants who were for the abbot prayed permission to imparl, and came back for two days, and tendered issue that the abbot had not knocked down the weir pending, as the defendants had supposed; ready etc. Then the dean and chapter came and answered as tenants of the manor of Staverton, where the abbot supposed that the nuisance had been made, and said that whereas the said abbot supposed that the weir had been built to the nuisance of his freehold in Buckfast, (Latin begins) that is, to the nuisance of his weir in Buckfast (Latin ends), they said that his weir of Buckfast extended as well into Asperton as Buckfast, which vill of Asperton was not in the writ; judgment of the writ. The plaintiff said that the defendants would not be admitted (n'aviendr') to that, since they had pleaded to the action, of this that they had said that the abbot had knocked down the weir while his writ was pending, which matter was properly to the action, as if one brought an Assize and entered while the writ was pending. The abbot's counsel, that is to say, two serjeants, did not want to demur on this plea, that it was to the action, (pris), and the reason was that they did not want to take advantage so suddenly of their companion. And then at the next term it was pleaded that the dean and the chapter would not have a plea in abatement of the writ, because John W., who had pleaded to the action, was tenant, and not they. They maintained that they were tenants, and not Wilmot. |
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