Luttrel's Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1598 |
| Date | 01 January 1598 |
| Court | Court of the King's Bench |
English Reports Citation: 76 E.R. 1063
IN THE KING'S BENCH.
See Hill v. Cock, 1872, 26 L. T. 186; Aynsley v. Glover, 1874, L. R. 18 Eq. 549; L. R. 10 Ch. 283; Warren v. Brown [1900], 2 Q. B. 727; [1902], 1 K. B. 15.
[84 b] luttrel's case. Pasch. 43 Eliz. Rot. 569. In the King's Bench. [See HiU v. Cock, 1872, 26 L. T. 186 ; Ayn&ley v. Glover, 1874, L. E. 18 Eq. 549 ; L. E. 10 Ch. 283 ; Warren v. Brown [1900], 2 Q. B. 727; [1902], 1 K. B. 15.] Action on the case for diverting a water-course. Somers. ss. Be it remembered, that heretofore, that is to say, in the term of St. Michael last past, before our lady the Queen at Westminster, came Edw. Cottel, gent, by J. Nightingale his attorney, and brought here into the Court of the said lady the Queen, then there, his certain bill against George Luttrel, Esq. Eobert Norcorae, and John Quick, in the custody of the marshal, &c. of a plea of trespass upon the case: and there are pledges of prosecuting, to wit, John Doe and Richard Roe, which said bill follows in these words : ss. Somerset, ss. Edw. Cottel, gent, comptaineth of George Luttrel, Esq., Robert Norcome, and John Quick, being in the custody of the marshal of the Marshalsea of the said lady the Queen, before the Queen herself, for that, viz. that whereas the said Edward, on the 4th day of May (b) Co. Lit. 89 a. 1 Roll. 124. Moor 462. Doct. pla. 13. 1 Brownl. 25. Doct. and Stud. 129 b. (e) Fid. Ferev. Smith [2 Lev. 5. 1 Vent. 121. 2 Keble 761. 779. 830]. Wood- liffe's case, Moor 462, ace.; and vid. Jones on Bailment 98. (c) 1 Sid. 36. Aleyn 93. Palm. 523. 2 Sand. 380. 1 Roll. 2. 124. 2 Roll. 567. 1 Roll. Rep. 79. 2 Bulstr. 280. Cro. Jac. 262. 330, 331. Hob. 17, 18. Co. Lit, 89 a. Moor 462. 9 E. 4. 19. 1 Vent. 190, 191. 238, 239. 3 Keb. 72, 73, 74. 112, 113, 114. 135. 1 Mod. Rep. 85. 2 Mod. Rep. 270. Plowd. 9 b. (f) Fid. note (a) to Culey's case, 8 Co. 32. (d) 2 Bulstr. 249. () 1 Roll. 808. Dyer 66. pi. 15. 241. pi. 47. Cro. El. 815. Palm. 550. Jenk. Cent. 231. Bro. Det. 22. Fitz. Barr. 57. (a) Fid. Alstpt v. Eyles, 2 H. Black. 111. Elliot v. The Duke of Norfolk, 4 T. R. 789. 1064 luttrel's case 400.hbp.Ma. in the 41st year of the reign of the said Lady Elizabeth, now Queen of England, and before, was seiaed (a) of and in two ancient and ruinoua fulling mills, with the appurtenances in Dunster, in the county aforesaid, in his demesne as of fee to which said fulling mills a great part of the water of the river in Dunster aforesaid from a certain place called the Head Wear of the said river, in Dunster aforesaid, on the said 4th day of May, in the 41st year aforesaid did run; and also before, from time whereof the memory of man was not then to the contrary, was continually accustomed and used to run; and whereas also, on the said 4th day of May, in the 41st year aforesaid, and before, time out of the memory of men, for the preservation, direction, and continuing of the right course of the said great part of the water of the river aforesaid to run to the fulling mills aforesaid, a certain thick bank was made of timber and earth, near and above the said mills aforesaid, on the west part of the course of the said great part of the said water of the river aforesaid, and was near adjoining to a certain street, [85 a] commonly called West-street, in Dunster aforesaid: and also whereas the said Edward being seised of the aforesaid fulling mills, with the appurtenances in the form aforesaid afterwards, that is to say, on the 28th day of October, in the 41st year of the said lady the Queen that now is, the said two fulling mills (as before is said) being ruinous, did totally pull down, and afterwards, that is to say, on the 20th clay of June, in the 42d year of the reign of the said lady the now Queen, at Dunster aforesaid, in the county aforesaid, in the places of them, and where the aforesaid two fulling mills before were made and built, upon the aforesaid great part of the said water of the river aforesaid, two corn mills for the grinding of corn newly had built, erected, and perfected, by reason whereof the said Edward then was seised, and as yet is seised of the said two corn mills (so as before is said) new built, erected and perfected, in his demesne as of fee, and the aforesaid great part of the water of the river aforesaid, in Dunster aforesaid, from the place called the Head Wear of the said river, in Dunster aforesaid, from the time of the new building, erecting and perfecting of the aforesaid two corn-mills, until the 10th day of September then next following did run : by reason whereof the said Edward, after the building of the said two corn-mills, until the 10th day of September, had gotten divers gains and profits of the said people of the lady the now Queen, for the grinding of their corn at the said corn-mills ; yet the said George, Robert, and John, well knowing the premises, maliciously devising and intending the said Edward unjustly to molest, and him altogether to hinder and deprive of the profits of the corn-mills aforesaid, at Dunster aforesaid, on the said 10th day of September, in the 43d year aforesaid, the said thick bank aforesaid did dig arid break, and the whole said great part of the aforesaid water of the river aforesaid, which to the aforesaid corn-mills of the said Edward, from the said place, called the Head Wear, did run, and ought and used to run, from its ancient and used course, that is to say, in the said street, commonly called the West-street, in Dunster aforesaid, did divert and withdraw, whereby the said Edward, the whole profit of his corn-mills aforesaid, for a great time, that is to say, from the aforesaid 10th day of September, in the 42d year aforesaid, until the exhibiting this bill, that is to say, the 20th day of November, in the 43d year of the reign of the said lady the now Queen, wholly lost, to the damage of the said Edward of 2001. and thereof he brings his suit, &c. And now at this day, that is to say, Wednesday next, after 15 days of Easter in this term, until which day the said George, Robert, and John, had licence to imparl, and then to answer, &c. before the said lady the Queen at Westminster, come as well [86 b] the said Edward by his attorney aforesaid, as the said George, Robert, and John Quick, by Stephen Brodrippe, their attorney, and the said George, Robert, and John defend the force and injury, when, &c. and say, that they are not guilty thereof, and of this they put themselves upon the country; and the said Edward likewise, &c. Wherefore let a jury come before the said lady the Queen, at Westminster, on Thursday, next after 15 days of the Holy Trinity, and who neither, (a) The...
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